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Abused and neglected - A gender perspective on aggravated migrant smuggling and response

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Executive summary

Migrant smuggling is a type of organized crime with links to other serious criminal offences, including illicit financial flows, corruption and trafficking in persons. Smuggling is an illegal service that is offered to countless people and requires a financial or material remuneration. Many migrants who do not have other viable options to move across borders, regularly depend on the services provided by smugglers to migrate. In principle, once the smuggling transaction is completed and the person arrives at the desired destination, the relationship between the smuggler and the migrant ceases without any harm being done. Too often, however, smuggled migrants and refugees suffer from various dangerous circumstances and abusive and violent treatment while under the control of smugglers.

This Study considers the underlying risk factors that lead to abuse and violence during the smuggling operation and analyses whether gender influences the type of violence that is inflicted upon smuggled migrants. It also analyses the criminal justice responses to these abuses and the practical obstacles that may hamper the reporting, investigating or prosecuting of these “aggravations”. Finally, the Study provides recommendations for reducing the impunity of the people involved in such offences along the smuggling routes.

UNODC, through the analysis of case law within its Knowledge Portal on Smuggling of Migrants, noted that there was little evidence of migrant smuggling being prosecuted in the countries where the smuggling venture occurred, let alone for cases where smuggling became abusive or exploitative. Yet, civil society, researchers and academia have increasingly raised their concerns over the extreme violence faced by people on the move along certain routes.

To have a better understanding of the dynamics at play and the challenges to obtain justice in this context, this Study looks into two major transit regions, North Africa and Central America. It uses recently collected data from the UNODC Observatory on Migrant Smuggling that contains testimonies from frontline responders, smuggled migrants and migrant smugglers from West and North Africa. Aggravations occurring along the Central Mediterranean route also feature in the Study, as they are characteristic of the various types of abuse that migrants face before embarking on their dangerous sea crossings. It is often over those cases that courts in destination countries assess jurisdiction to prosecute smugglers and provide access to justice to the affected smuggled migrants. Practitioners were also interviewed for the Study to gain knowledge about smuggling characteristics in Central America. The present Study therefore focuses on these two regions, typically coined as transit regions for migrant smuggling operations.

Abuses encountered during the smuggling operation are highly gendered

In general terms, male migrants report significantly higher instances of forced labour, physical violence and inhuman and degrading treatment while in transit. Men also report a wider range of abuses than women. These findings must, however, be contextualized by the fact that adult men represent the largest group of smuggled migrants on a global scale. Women report a much higher exposure to sexual violence while migrating and report “not having access to sufficient health care” as a significant obstacle, showing an increased need for such services likely linked to the impact of sexual violence experienced as part of their journey.

Physical violence and inhuman and degrading treatment are the most prevalent forms of abuses encountered by migrants in transit. Though often inflicted with no apparent reason, physical violence is also used as a form of punishment, intimidation or coercion. The most severe forms of violence, such as torture, often have extortion as the purpose and are associated with other forms of abuses and crimes, including kidnapping or coercion. Several court cases analyzed in the Study led to the understanding that in many instances, smuggled men and women were intentionally separated in order to exercise different types of violence upon them; while men would suffer severe forms of physical violence including torture practices, women would primarily be targeted for sexual torture.

Sexual violence is an unfortunate common feature of all smuggling routes that affects female migrants in a much larger proportion than men. It is inflicted as a form of retaliation for alleged misconduct or by lack of other means, as a form of payment, where women are coerced into sexual services in order to pay for transportation or bribes. As reported to the UNODC Observatory on Migrant Smuggling by a case worker in West Africa “women can use sex as a currency to pay their smugglers or kidnappers and move on” and a law enforcement officer ”kickbacks and sex-for-passage (usually affecting women and girls), have been the most common types of bribery along the smuggling corridor”. Generally, the analysis suggests that, due to a variety of gendered factors, women are more likely to be short of money earlier and more frequently during the migration process, making them more vulnerable to sexual abuse to compensate with in-kind payment in the form of what the Study refers to as “transactional rape”.

Sexual violence is also perpetrated for no purpose other than a demonstration of power, misogyny, racism or sexual gratification. The Study also highlights the impact of sexual violence on women and girls and the social and medical consequences of abuses such as unwanted pregnancies and abortion that may be difficult to address on the move. Sexual violence could also be used as a means to coerce fellow migrants who are forced to witness the rape of travel companions, while at times technology is being used to perpetuate the victimization and stigmatization by the broadcasting of material depicting sexual violence among the community of the victim.

When men experience sexual violence, it is often with the intention of humiliating them. It is often used to attack their social status as a “man” in various cultural and societal contexts. It may include forced witnessing of sexual violence against others (particularly family members or members of their community), genital violence attacking their reproductive capacity, or in the form of anal rape and sexual exploitation (especially when the victim is known to be from the LGBTQI+ community).

Most dangerous transit points

In the two transit regions studied, particularly dangerous transit points were identified, namely the Darian Gap in Central America, the Sahara Desert in West/North Africa and the Mediterranean Sea. Crossing these transit points usually requires the assistance of smugglers and involves high risks of exposure to unsafe and dangerous travel conditions and abandonment as well as various forms of criminality and violence at the hands of non-State armed groups or public officials. An increased presence of these actors often leads to smugglers taking more dangerous routes which, in turn, considerably increases the risk of casualties and aggravations for the smuggled migrants.

In the course of their journeys through these transit points, migrants often lack access to safe water, and endure significant exposure to natural hazards and dangerous animals. Evidence collected though this Study suggests that women run a significantly higher risk of experiencing health dangers in this environment as they are performing tasks like childcare or breastfeeding while in transit. Pregnant women, children and elderly migrants are also more likely to be abandoned during a smuggling operation as this group may be less able to keep up with travelling or walking long distances due to their restricted mobility. In this scenario, women are often pressured into staying behind as well due to social expectations to care for the sick and injured.

Although many migrants who reach North Africa do not originally intend to cross the Mediterranean, a significant portion of them eventually does, sometimes through coercion of a smuggler or to flee exploitation. During the sea crossing in the Mediterranean, migrants are exposed to considerable risks, including death at sea. It is in fact in the Mediterranean Sea where almost half of the detected migrant fatalities worldwide are recorded. While men are the majority of those undertaking the sea journey, women appear to be disproportionality at risk of dying on this route.

In reaction to those heightened risks, groups of migrants in Central America relied on “caravanas” as a form of collective protection to travel northward. As the Study indicates, these caravans are not specifically formed with the intention to protect a specific group but are a collective form of protection through which mostly men, but also women and children, may be better protected from criminal forms of violence, from state violence, and from paying for smugglers for the sections of their journey for which they would have otherwise needed their assistance.

Little evidence of prosecution of abusive conduct in the context of smuggling in transit zones

Despite the severity of the violence inflicted upon smuggled migrants in transit, only a small number of cases could be identified that take abuses against migrants into account when prosecuting smugglers and others involved in the crime. Various factors may explain this situation.

To date, over three quarter of UN Member States are party to the Smuggling of Migrants Protocol supplementing the United Nations Convention on Transnational Organized Crime. State Parties are required to take action against the facilitation of illegal border crossing when committed with the intent to make a profit and to apply more severe sentences when aggravating circumstances are present. The violence and abuses that migrants experience during a smuggling operation is not always considered as a relevant factor in national legislation pertaining to smuggling. In these situations, charges may not lead to more severe penalties for perpetrators, despite the obligation of States Parties to do so in Art. 6 (3) of the Smuggling of Migrant Protocol. Yet, offences such as rape, sexual assault, or murder, are criminalized in most, if not all, national systems, and could be prosecuted as standalone offences, independent from the smuggling charges. The Study discusses these challenges in prosecuting such abuses and offers elements to be taken into consideration when deciding upon a prosecution strategy.

Another significant factor may be the lack of reporting by victims. In the case of sexual violence, same sex intercourse (in the case of LGBTQI+ victims) may be a criminal offence; sex outside marriage may be considered adultery while forced or clandestine abortion may be illegal - even when all these are caused by sexual violence or against the will of the victims. This exposes the victims to criminalization and the risk of being charged and prosecuted themselves, a fact that severely discourages the reporting of such abuses.

Several reports exist about migrants and refugees being detained in centres reportedly run by militias, paramilitary, or criminal groups in Libya, where migrants are subjected to extreme violence and neglect. Other practical barriers to reporting are due to the involvement or complicity of public officials in the abuse of the migrants.

Mass deportation or transfers of irregular migrants often without indication of procedural rights or without distinguishing between profiles are also often reported. The correlation between a stronger crackdown on irregular migration in certain countries and migrants taking more dangerous routes where more aggravations occur can also be observed.

In addition, a lack of information about the assistance and services available, including in a language migrants understand, a lack of legal institutions where migrants can safely report and/or restricted access to these institutions due to the constraints imposed by the smugglers, may also impact the reporting of these abuses.

Finally, the nature of the crime, the modus operandi of smugglers and the speed at which migrants move (especially in the Central American context) may also explain the lack of reporting. The overall reluctance to report is influenced by a widespread sense of impunity and lack of trust in the authorities, in addition to the irregular status of migrants that may expose them to detention and deportation, and the potential delays to their journey if they are to take their case to the authorities.

This Study made apparent that, although there was little evidence of prosecution of cases of smuggling with aggravations relating to the life and safety or treatment of migrants in the regions where it took place, these cases have at times been addressed by jurisdictions of third countries (usually a “destination” country).

This Study offers some initial discussion on the challenges faced and on the optimal prosecution of abuses experienced as part of a smuggling operation. It highlights some elements such as the effectiveness of the prosecution, available coordination mechanisms, applicable law, jurisdictional issues, but also the interest and protection needs of the smuggled migrant (in the spirit of a victim-centered investigation and prosecution).

From the data available, there seems to be a general lack of gender considerations in States’ responses to aggravated smuggling offences, although gender plays an important role in how these offences are committed and what specific protection needs smuggled migrants have. More segregated data is needed, including more relevant jurisprudence, to allow for a more comprehensive analysis of the phenomenon in the regions studied and others.

This Study represents a first steppingstone for practitioners to discover and discuss the complexities identified therein. In particular, the need for more concrete State responses to consider these gender dimensions in order to better understand how smuggling of migrant is perpetrated but also in order to offer gender-sensitive protection measures and prevent impunity for the worse forms of this crime.