Combating Migrant Smuggling in International Law: UN Protocols and European Union Practices

Entrance

Migrant smuggling is not just a border security issue. It is also considered a human rights violation, organized crime, and an act that disrupts public order . In international law, this crime is addressed within the scope of combating transnational organized crime ; the aim is both to punish the perpetrators and to protect the fundamental rights of migrants.

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1. Legal Definition of the Crime of Migrant Smuggling

Smuggling of migrants is Article 79 of the Turkish Penal Code;

• For the purpose of obtaining material gain,

• It is regulated as preventing foreigners from entering, being expelled from, or remaining in the country illegally
  

Similarly, in international law, this crime is defined by the element of facilitating and profiting from the illegal crossing of international borders .

📌 Important point:

• The consent of immigrants does not eliminate the crime.

• This crime is considered a crime against public order because it violates the state's immigration policies and endangers human lives

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2. The Palermo Convention and the UN Protocols

a) The Framework of the Palermo Convention

The UN Convention against Transnational Organised Crime (Palermo Convention) , adopted in 2000 , covers many types of organized crime, including migrant smuggling.

b) Additional Protocol on Smuggling of Migrants (2000)

The "Protocol Against Smuggling of Migrants by Land, Sea and Air"imposes the following obligations on states:

• Punishment of the crime,

• Protecting the rights of immigrants,

• Enhancing cross-border cooperation.

c) Türkiye's Accession

Turkey became a party to the protocol in 2003 and harmonized its national law with the amendment of Article 79 of the Turkish Penal Code and the practices of the Directorate of Migration Management

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3. European Union Practices

a) Migrant Smuggling in EU Law

The EU treats migrant smuggling as organized crime and implements action plans titled "EU Action Plan Against Migrant Smuggling"

b) Frontex and Joint Operations

Frontex , the EU's border security agency , conducts operations against migrant smuggling, particularly in the Mediterranean, rescuing migrants from boats and identifying potential cases of human trafficking.

c) EU Directives

• Directive 2002/90/EC: Definition of smuggling and responsibilities of member states.

• Directive 2008/115/EC on Return: Procedures for returning undocumented immigrants.

• Directive 2011/36/EU: Distinguishing between human trafficking and migrant smuggling.

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4. Distinction Between Migrant Smuggling and Human Trafficking

It is important in international law not to confuse these two crimes.

• Migrant Smuggling: It occurs with consent; the purpose is profit.

• Human trafficking: Involves coercion, threats, or deception; the aim is continuous exploitation and abuse.

This difference determines the nature of the crime during the trial

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5. Supreme Court Decisions and Practice

📌 Supreme Court 7th Criminal Chamber, Case No. 2019/3678 E., Decision No. 2019/4712 K.
The defendants' attempt to transport migrants to Greece by boat was deemed migrant smuggling. The ruling emphasized that "the consent of the migrants does not negate the crime."

📌 Supreme Court 18th Criminal Chamber, Case No. 2020/6142 E., Decision No. 2020/8410 K.
The confiscation of immigrants' passports and forcing them into prostitution human trafficking and a qualified penalty was applied.

These decisions define the boundaries between migrant smuggling and human trafficking

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6. Statute of Limitations, Investigation and Trial Process

a) Statute of Limitations

Migrant smuggling imprisonment of 8 to 15 years according to the Turkish Penal Code . Therefore, the basic statute of limitations for prosecution is 15 years.

b) Investigation

• The Public Prosecutor's Office initiates an investigation on its own initiative.

• Law enforcement (Coast Guard, Gendarmerie, Police) collect evidence.

• Within the scope of international cooperation , Interpol and Europol data may be used.

c) Trial

• Competent court: High Criminal Court

• Procedure to be applied: Provisions of the Code of Criminal Procedure

• The defendant's lawyer can review the legality of the evidence and argue that the elements of the crime have not been met.

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7. Türkiye's Strategic Importance and International Cooperation

Turkey, situated both as a bridge between Asia and Europe and on a hot migration route, is a critical actor in the international struggle.

• EU Readmission Agreements,

• Interpol joint investigations,

• International programs of the Directorate of Migration Management,

• Developing border security technologies
  is a crucial part of this fight.

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8. The Strategic Role of the Lawyer

Lawyers in migrant smuggling cases;

• In favor of the defendant: It questions whether the elements of the crime have been met and requests the rejection of illegally obtained evidence.

• In favor of the migrant: They can apply for international protection, seek determination of victimization due to human trafficking, and file administrative lawsuits against deportation proceedings.

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Conclusion

Migrant smuggling is not only a violation of national borders but also a multifaceted crime requiring international cooperation. The UN Palermo Protocols, EU Directives, and Supreme Court rulings clarify both the criminal and human rights aspects of this crime. Due to its strategic location, Turkey plays a key role in this fight.