Recognizes New Zealand immigration concurrent penalties

Escape and asylum

Andreas Schloenhardt

To person

Ph. D., born 1973; Professor of Criminal Law at the University of Queensland in Brisbane / Australia; Professorial Research Fellow at the Institute for Criminal Law and Criminology at the University of Vienna, Schenkenstrasse 4, 1010 Vienna / Austria. [email protected]

For many people, the image of unscrupulous people smugglers who profit from the desperation of refugees and expose migrants to indescribable dangers shapes today's understanding of refugee and migration movements. Refugees in distress in the Mediterranean, people crammed together in freight containers, overcrowded refugee boats on the way to Australia and helpless children smuggled en masse from Latin America to the USA have dominated the reporting on these topics for a long time. The smugglers who are responsible for many of these situations are usually treated as criminal offenders and are referred to by individual politicians as "the scum of the world" that is "supposed to rot in prisons". [1] In the scientific literature, migrant smuggling is mostly described as a lucrative criminal industry, similar to the global drug trade, arms smuggling and human trafficking.

Despite these pictures and descriptions, as well as the dangers and costs associated with illegal - or better: irregular - migration, many people willingly seek the services and support of smugglers in the hope of security, prosperity and a better life for themselves and theirs Find families. For many people smugglers are the only way to escape poverty, persecution and hopelessness. The increasing closure of many borders has made it almost impossible for most refugees to get to safe destination countries without the help of smugglers. For many migrants, the smugglers are true Samaritans who help to realize the desire for a better life.

The double-edged nature of migrant smuggling, optionally referred to as "smuggling" or "escape aid", makes it difficult to find common positions in politics and the public debate and to develop constructive solutions. The current discourse is also often overshadowed by xenophobia, Islamophobia, fear of overpopulation and the destabilization of the social system, which contributes to the further polarization of opinions. Signs of reason and confidence are currently barely recognizable. This article aims to encourage people to rethink their approach through a differentiated presentation of the tractor problem and a presentation of various possible solutions.

Smuggling as a criminal offense

Today smuggling is recognized as a crime in criminal codes around the world. This is mainly a result of the 1990s, when the end of the Cold War and the opening of the eastern borders to the European Union contributed to the fact that numerous people set out to get to Western Europe - not only from countries of the former "Eastern Bloc." "but also from more distant countries in the Middle East, Asia and Africa. At the same time, the migratory movements from Latin America to the USA continued, and after the events of June 1989 (the bloody suppression of the Chinese protest movement in Beijing), and again at the end of the 1990s, there were extensive migrations from China to the USA, to Canada , Europe and Australia. Many of these migrants were assisted by people smugglers (also known as smugglers) who made it possible to cross national borders by land, sea or air that would otherwise have been insurmountable.

The term "smuggling" is thus conceived as a service that serves to bring people illegally across borders - similar to drugs, weapons or other contraband goods - in order to enrich the smugglers. Smuggling is mostly presented as a type of organized crime and defined accordingly in international law: "Smuggling of migrants" refers to bringing about the illegal entry of a person into a state of which they are not a national or in which they are not permanently resident the aim of gaining a direct or indirect financial or other material advantage. [2]

Until the 1990s, smuggling was not or only insufficiently criminalized in most countries. In order to take action against people smugglers across borders, the first initiatives were taken in the early 1990s to comprehensively and uniformly criminalize smuggling through international treaties. [3] In 1997, led by Italy and Austria, two drafts for new conventions against human smuggling were presented. The Italian proposal, which was presented to the International Maritime Organization (IMO) in London, was directed primarily against the often dangerous and inhumane methods with which migrants are smuggled by sea. [4] The Austrian draft, which was presented to the General Assembly of the United Nations in September 1997, deals extensively with the fight against and punishment of smuggling, in particular with the creation of an internationally recognized criminal offense. [5] Both proposals were later combined and included as an additional protocol in the development of the United Nations Convention against Transnational Organized Crime. [6] The Convention and its three Additional Protocols were opened for signature in Palermo on December 15, 2000. [7] After the necessary number of contracting states had signed, the "Additional Protocol against the smuggling of migrants by land, sea and air" came into force on January 28, 2004. To date, 141 countries have signed the protocol.

According to Article 2, the purpose of this protocol is "to prevent and combat the smuggling of migrants and to promote cooperation in this regard between the States parties, while at the same time protecting the rights of smuggled migrants". The central element of the protocol is the obligation of the contracting states to "take the necessary legislative and other measures" to criminalize the smuggling, related falsification of documents and the hiding of illegally traveling migrants if these acts are "intentional and for the direct or indirect attainment of a financial or other material advantage ". [8] These penalties must be tightened further and the sentence increased accordingly if the act results in "the endangerment or possible danger to the life or safety of the migrants concerned" or "the inhuman or degrading treatment of these migrants, including for the purpose of exploitation" . [9]

The purpose of the criminal law provisions of the Protocol is to punish the smugglers and not the migrants, who often use the services of smugglers out of desperation or in the absence of other alternatives. In this context, Article 5 also emphasizes that migrants cannot "be prosecuted for being the subject" of the smuggling activities. While this principle does not give migrants immunity from other crimes they may commit in the course of their smuggling, it does protect them in particular from prosecution as aides or participants in their own smuggling. [10]