CHAPTER II

THE THEORETICAL APPROACH TO HUMAN SMUGGLING: AN

OVERVIEW

Introduction

One of the objectives of this study is to have a clarity on the theoretical

underpinning of human smuggling. This chapter explains and analyzes the

theoretical models that have been so far developed in order to comprehend

and explain the phenomena of human smuggling.

The theoretical models developed in the area of human smuggling can

be divided into traditional and non- traditional or current theoretical models.

Traditionally, the issue of human smuggling is looked upon as an organized

crime and as a well-established profit-making enterprise. However, there are

authors who have argued and theorized that apart from looking at human

smuggling purely as a crime or merely as a business, there is also a need to

look at other frames of reference pertaining to economic, political, human

rights and gender aspects. Making use of such a framework of several

theoretical models have been conceived in order to examine and investigate

this problem. While several models have been conceived, it is nevertheless

to be appreciated and recognized that these are all interrelated and

interdependent. They fall within the overall ambit of human smuggling and

reflect the different facets of this rather complex issue. This chapter seeks to

probe into and elucidate the emphasis that has been given to the different

56
models and to examine their merits and demerits. Given below is a

diagrammatic representation to illustrate the different models that reflect the

aspects of the problem.

Chart 1

2.1 Business Model

This theoretical model was first proposed by John Salt and Jeremy

Stein in 1997101. Ever since, this model has become popular among

academics and media102. This model has also received the acknowledgement

of policy makers and law enforcement officials throughout the world. Eg;

McKinley, states human smuggling as "dark side" of globalization103.

101
John Salt and Stein Jeremy, Migration as a Business The case of Trafficking [1997]
International Migration 467, 470
102
Emma Herman, (n 62 ) 191
103
P. Martin, ‗Smuggling and Trafficking: A Conference Report.‘ [Autumn, 2000], The
International Migration Review, 969, 971

57
 Emma Herman says that in the migration industry, two parties are

involved namely the migrants and entrepreneurs104.

When we look at the concept ‗crime as business‘, the following

discussion can be taken as a starting point.

In 1975, the Fifth Congress explained the meaning of ‗crime as

business‟105. This definition refers to economic gain as the objective of this

business. Elements of trade, involvement of organization in the business,

criminal intention, involvement of various parties, agreement to perform

specific tasks, misuse of industrial techniques and corruption are the

important features contained in this trade. Except for criminal intention, all

other are essentially basic components of the legitimate business. Although

this discussion did not consider the transnational nature of crimes, it can be

seen as the inception to give a definition to ‗crime as business.‘

According to John Salt, the Business Model theorizes that ‗international

migration is composed of legitimate and illegitimate markets in which actors

104
Emma Herman, (n 62 ) 195
Her view ―the focus of expert discussion in the understanding of the business model revolved
around the notion of the migration industry and its professionalization, in which migrants are
seen as products and those who aid migrants through smuggling them out of the country as
[illegal] ―entrepreneurs
105
Crime as Business ― referred to heterogeneous groups of crimes each characterized by
specific features, such as the underlying objective of economic gain and the involvement of
some form of commerce, industry or trade; the involvement of the element of organization in
the sense of a set or system of l crime as business with ,formal arrangements between the
various parties committing the illegal acts, the use or misuse of legitimate techniques of
industry; and the high social status and/or political power of the persons involved in
committing the crimes concerned-
See Fifth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Geneva, 1-12 September 1975: report prepared by the Secretariat (United Nations
publication, Sales No. E.76.IV.2 and corrigendum), chap. II, para. 51.

58
pursue profit and commercial gain‘106. This definition is somewhat similar to

the above definition given by the Fifth Congress. Sheldon. X. Zhang points

out that international criminal networks are interested in maximizing profit107.

As per Kyle and Koslowski, close to 50 million persons across the globe have

been smuggled, with returns of beyond $3.5 billion per year108. It is clear from

the above discussion that profit making is the central element in the

smuggling business.

Sheldon X.Zhang Zhang, in his book describes the tasks of the

Chinese human smuggling criminal network called ‗Snakeheads‘. According

to him, these networks engage in several tasks to complete the human

smuggling operation109. He is of the view that as in the real sense of

business, there is no competition in the smuggling industry‘ 110. He says that

human smuggling is a unique nature of business with multiple tasks

accomplished by smuggling organizations. He also says that although many

people are involved in fulfilling various duties in the smuggling organizations,

it has never required an expert to manage its financial transactions. In his field

of study, it was found that most Snakeheads are independent contractors and

106
Salt and Stein, (n63) 467, 479
107
Watson Scott, ‗The Criminalization of Human and Humanitarian Smuggling, Migration,
Mobility, & Displacement. [2015] 27,31
108
Sheldon X. Zhang, (n18), 95
109
Ibid, 90. - ‘there is no market mechanism for Snakeheads to compete and there are no
vendors from which to pick and choose. Human smuggling involves detailed and highly
specialized tasks and procedures, such as screen in prospective clients for their ability to pay,
collecting down payments, procuring necessary travel documents, arranging transportation,
meeting clients and delivering them to safe houses, notifying relatives and collecting
payments. In the conduct of migration industry some stake holders perform legitimate tasks
while others undertake illegal assignments‘
110
Ibid,

59
they work inside their own arrangements of contacts and funds instead of for

a common boss. 111

Sheldon X Zhang notes that human smuggling is a big business but no

one knows how big it is112; He further brings into notice that the biggest

unknown is the actual number of persons being smuggled.

Smugglers calculate the profit after weighing the expenses at the end

of a particular operation. The smuggling organizations‘ expenses are salary

for different persons such as recruiters, document vendors, stake holders,

document preparations, bribing immigration and border control officials, fuel

and food113. The individuals who are involved in different capacities in this

venture, the task performers, will be rewarded for their profits after completing

their respective roles.

Sheldon X Zhang states that low level members of the smuggling

group do not have direct connection with the top-level leaders in the criminal

network and all the work are carried out by intermediaries114.

Sheldon X Zhang describes the form of the OCG. He has found the

number of persons in the criminal network and the opinions of the

members115. As maintained by several studies and reports, the Chinese

111
Ibid, 96
112
Ibid,
113
Ibid,97.
114
Ibid
115
ibid -Accordingly, 1/ 3 of the members of the snakehead out of 173 claimed that the basic
number of members in their group between two – five individuals. Another 17% claimed six or

60
smuggling networks are highly organized. He positions that there are no
116
observational studies to demonstrate this end. . He portrays the association

as ‘amorphous‘. His investigation has discovered just few of the respondents

(16%) asserting for the most part work with their accomplices to achieve their

targets.

As indicated by Sheldon X Zhang, there are numerous layers of agents

in the criminal associations and each and every member of the associations is

given explicit assignments. The association is for the most part sponsored by

informal community, companions and relatives117.

Snakeheads don't have the sole authority over the business because

several liaisons are at work. They are uncertain about whether the agreed

jobs will be satisfied on schedule. Snakeheads anticipate unscheduled

changes in the human smuggling activity and as Sheldon X Zhang has called

attention to, these criminal gangs have built up a top level of tolerance among

them to acknowledge any changes and issues that may emerge.118.

more core members. Another interesting finding of this study is that 40 % of the subjects do
not consider themselves as part of any organization and did not consider their smuggling
operations are organized one. Most members said that they do not have any idea about other
115
members of their ring. Low level members have little say in how an operation was to be
carried out
116
Ibid, 108.
117
Ibid - Chinese human smuggling organizations appear to have multiple layers of
operatives, with an inner core consisting of only a few close associates. This group involve in
recruitment, travel preparation, departure, transit, arrival and payment collection – each is
coordinated with snakeheads who are supported by addition a networks and friends and
partners
118
ibid 109.

61
 Sheldon X Zhang came to the inference that despite the lack of

hierarchical order and the absence of a god father, most smuggling activities

are successful.

Sheldon X Zhang has interviewed 129 human smugglers or rather

member of Snakehead. He has divided each person‘s role in the human

smuggling business.

Role Frequency Percentage

Primary Role in Human Smuggling Business

Recruiter 29 22.5

Document vendor 16 12.4

Payment collector 15 11.6

Coordinator 11 8.5

Transporter 8 6.2

Arranger of fraudulent business delegation 5 3.9

Securer of deposit 5 3.9

Escort 4 3.1

Fraudulent marriage arranger 4 3.1

Guard 3 2.3

Arranger of travel 2 1.6

Guarantor 2 1.6

Leaser of boats 2 1.6

Receiver of clients 2 1.6

Corrupt officials 1 0.8

Arranger of stowaways 1 0.8

Student visa fraud organizer 1 0.8

Unable to determine role 18 14.0

62
Total 129 100

Roles Change Over Time

Yes 47 36.6

No 45 34.9

No longer in business 13 10.1

Unable to determine 24 18.6

Total 129 100

Role Complexity

Single role 83 64.3

Multiple roles 28 21.7

Unable to determine 18 14.0

Total 129 100

Table 3

Table 7.2 -Source – Sheldon X. Zhang, Chinese human Smuggling

Organizations families, Social Networks, and Cultural Imperatives (Stanford

University Press 2008), 97

As stated in the first chapter, it is generally viewed that smuggled

migrants freely consent to be smuggled. Zhang supports this view by citing

another study which assesses human smuggling as a ‗clean‘ business. He

says so because prospective migrants are subject to threats or violence.

Contrary to this view, the UNODC affirms that human smuggled migrants

undergo suffering and hardships. It also notes that smuggling is not just a

business, as it can be a ‗deadly business‘119. It explains that it is difficult to

calculate human costs involved in smuggling. The UNODC has estimated that

119
Watson Scott, (n107)

63
thousands of migrants have perished in the last few years (prior to 2011) by

trying to cross the borders120.

Consideration ought to likewise be given to the way that human

smuggling is a business that does not require a geological limit since

organizers work from various locations of the world. Along these lines, this

business is being perceived in the UNCTOC as a TOC.

2.1.1 Beneficiaries of the Business

The Business Model has identified the monetary beneficiaries of this

venture. As defined by John Salt and Emma Herman, the main parties of the

business are the smugglers and migrants. Both profit from this venture.

However, it is also to be noted that the process of human smuggling cannot

be smoothly executed without the support of other stakeholders, especially,

the law enforcement officials. According to the UNODC, the immigration

agents in some countries have also been implicated in facilitating irregular

migration and enabling the stay‘121. Cleo J.Kung another Chinese scholar

states that public officials gain profit out of this illegal business122. The same

view has been supported in some other studies as well. E.g. Law enforcement

officials in different points assist human smuggling by performing different

tasks connected to their role. The law officials include border control officials,

police forces, soldiers, immigration officials, embassies or consulate

120
ibid
121
UNODC, Smuggling of Migrants By sea (2011), 20 <
http://www.unodc.org/documents/human-trafficking/Migrant-Smuggling/Issue-
Papers/Issue_Paper_-_Smuggling_of_Migrants_by_Sea.pdfIssue> accessed on 1 March
2017
122
Cleo J. Kung, (n 22) 1277

64
employees123. They are well paid for their work. The UNODC also notes that

certain public officials of the highest-level and politicians also take part in

maritime smuggling124. Public officials facilitate to obtain travel documents and

visa. In doing so, they become directly involved in the crime.

Sheldon X Zhang refers to an outline by expressing that specific

previous Mexican government authorities were captured on the charges of

encouraging smuggling to the US125 and the charges against them were

passing information on police raids, unlawful liberating of caught migrants and

the admission of migrants who own forged travel documents

Louise Shelly clarify the idea of the criminal association which is

engaged with maritime human smuggling.126. According to Sheldon X Zhang

number of intermediaries‘ full fill their duties. The leader is at the top level the

migrants do not meet the leader and the connection between the head of the

organization and migrants is kept up by the delegates127. He further says that

in certain gangs, the top level is associated with both legal and illegal

undertakings.128. In this context, smuggling is considered to be providing

service to a regular part of the economy129.

123
Zhang (n 18 ) , 67
124
<https://www.unodc.org/documents/southeastasiaandpacific/Publications/2015/som/Curren
t_Trends_and_Related_Challenges_web.pdf> accessed 12 December 2017
125
Zhang, (n 18), 67.
126
Louise shelly ,(2014) Human Smuggling and Trafficking into Europe : A comparative
Perspective , Migration Policy Institute
127
Zhang (n 18 )
128
Ibid, - such as travel agencies or transport companies which perform both legal and illicit
activities. In this respect it must be noted that in some regions there are no social stigma of
criminality associated with being a smuggler.
129
Ibid ,20

65
2.1.2 Human Smuggling is Viewed as a Transnational Service

Industry

On the contrary, while some say that human smuggling is a profit-

making business, another set of scholars130 explain the Business Model as a

transnational service industry131. Veronika Bilger and others , are of the view,

that in the smuggling operation, the migrants are clients while the smugglers

are the service providers.132 They illustrate an empirical study carried out in

Austria to support this argument. This study has found the ‗presence of a

great number of suppliers (smugglers) and customers in a market like

condition‘.133 This led to the conclusion that smuggling is a transnational

service industry. The study further emphasizes that it cannot be concluded

that this transnational service industry is a competitive business in terms of an

economic sense134. They support the conclusion with the following

arguments.

In this service industry, there is no equal bargaining. The smugglers

are powerful and they have control over the migrants until the journey ends.

As we go by Veronika Bilger and others‘ idea of transnational service

industry, the vital question arises whether the smugglers render a quality

service for the fee that they charged from the migrants. Ample evidence show

that they do not provide a quality service but rather put the migrants in

difficulties such as lack of basic facilities, exploitation and deception.

130
Ibid 121
131
Bilger, at el (n61 ) 64
132
ibid
133
Ibid, 64
134
ibid

66
 Although Veronika Bilger and others call this as a service industry, it is

visible that they themselves have reservations regarding his idea by the

elements presented here. Accordingly, ‗there is no transparency or open

mindedness when it comes to these smugglers. A smuggler does not reveal

all the information that is available to the clients in order to escape legal

actions. Smugglers can change their routes on their own without consulting

the migrants, and even the destination. Likelihood of apprehension, rough sea

and other climatic conditions on the high seas are some of the reasons to end

the journey at an unexpected place. Even in this situation, smugglers do not

lose hope and pay the money back to the migrants and they try the procedure

all over again‘135.

An empirical research led by Van Liemptand Doomernik136 in the

Netherlands, in 2003 and 2004, demonstrate that smugglers like to signify

themselves as service providers rather than businessmen despite the costs

they charge.

2.1.3 Human Smuggling is not Always Motivated by Profit

Contrary to the profit element proposed by John Salt and Jeramy Stein

in the Business Model, some studies declare that human smuggling operation

is not always profit-motivated137. Cleo J.Kung points out that the Chinese

135
ibid
136
V. Liempt and D. Jeroen. ‗Migrants Agency in the Smuggling Process: the perspectives
of smuggled migrants in Netherland‘[(2006] International Migration Journal, 165
137
Cleo J. Kung,(n22) 1271, 1297

67
Snakeheads arrange the voyage to protect the migrants from persecution138

which is not really motivated by profit.

In addition, Emma Herman139 has added a familial element to this

operation. She points out that human smuggling is facilitated by family,

friends, relative circles and social networks. Another scholar named A. Ahmad

also supports Emma Herman‘s familial model and he further says that a family

circle in the receiving country is happy to welcome the new comers and help

them in finding houses and jobs140. Staring R, another scholar, also support

this view141. Hence, it is understood that the motivation of the family and friend

circle is not prompted by money making, rather, it is a humanitarian

assistance.

In another study, Aranowitz points out that although the US considers

human smuggling as a crime, China does not perceive so. They think that

smugglers are doing a greater service to the migrants and the nation.142

Emma Herman's meetings with migrants reveal that most migrants are from

existing social networks who undertake the journey143.

138
Ibid, 1285
139
Emma Herman (n 62) 197
140
A. Ahmad , ‗Getting a Job in Finland The Social Networks of Immigrants from the Indian
Subcontinent in the Helsinki Metropolitan Labour Market‘ (Academic dissertation University of
Helsinki 2005 ) < http://www.eukn.eu/fileadmin/Lib/files/EUKN/2010/21-immigrants-
employment.pdf> , accessed on 16
141
Staring, R. ‗Facilitating the arrival of illegal immigrants in the Netherlands: Irregular chain
migration versus smuggling chains‘ [2004]. Journal of International Migration and Integration,
273
142
Aronowitz Alexis,(Summer 2001) ―Smuggling and trafficking in human beings: the
phenomenon, the markets that drive it and the organizations that promote it‖ 177(163-195)
143
Emma Herman, (n 62 ) 191

68
2.1.4 Payment by the Migrants and Profit Made by the Smugglers

Various estimates suggest that human smuggling is a huge profit-

making business. Global studies on human smuggling cite data to prove

this144. Human smuggling has become a profitable business, like drug

trafficking145.

The price of the journey is decided on the basis of a variety of factors

such as the distance and the type of vessel etc. The decision of the landing

point is especially impacted by the funds that are made accessible. Sheldon X

Zhang found extraordinary circumstances in which the Snakeheads had

thought of long haul installment plans with the migrants who can't stand to pay
146
forthright. He further says that the migrants require to make a an upfront

installment without which the smugglers will not begin any work147.

In 1998, the Immigration and Naturalization Service148 found $47,000

was charge per migrant from China to the US. The smugglers demanded a

higher down payment from their customers to secure fake passports and

144
A study regarding US -Mexico found that smuggling is a transaction in which a fee is
exchanged for the services of the smuggler. The study further clarifies that according to
United States immigration officials, in 2002 $ 9.5 billion yielded from human smuggling
business. The UN estimates that nearly four million human beings are trafficked across
national boundaries every year, and roughly $7 billion is paid to criminal organizations
involved in the smuggling. According to ILO (2005) about 2.4. million are victim of trafficking
at any given time and profit per year is $32 billion. During 1996 to 2006, viewed a massive
scale business. and the Chinese human trade yields an estimated annual profit of three
billion dollars.
145
Alison. Mounts, (n28) 5
146
Zhang, (n 18 ). 90
147
Ibid 201
148
ibid 68

69
visas. Document fraud itself is an enormous part of the human smuggling

business149.

Cleo J. Kung explains that Chinese migrants normally make only a

down payment of $1,000 to $3,000 before their departure 150. In the latter part

of the 20th Century, it has been evaluated that some 50 Chinese crime

groups have smuggled large number of people into the U.S. ‗at the price of

$20,000 to $35,000 per person.‘151

As a successful crime, the smuggling of migrants via land and air

returns high profits for smugglers with all the sufferings bear by the

smuggles.152. As per the 2009 UNDP Human Development Report, there

were 50 million evaluated irregular international migrants in the world; a

substantial number that has paid for the aid of illegal passage of borders153.

According to the Europol's computations, the revenue from human smuggling

was between EUR 3 and 6 billion in 2015154.

2.1. 5.The Rescue Industry

There is another facet to this model. On one hand, several groups/

individuals/ officials make profit by organizing and facilitating smuggling. On

the other hand, people make money by engaging by rescuing migrants at

149
Ibid 132
150
Cleo J. Kung, (n22) 1274
151
Samuel. L ‗Smuggling of Refugees by Sea: A Modern-Day Maritime Slave Trade, [2003 /
2004] Regent J. Int'l L, 1
152
UNODC (n121) 10
153
Ibid , 11
154
<https://www.myria.be/files/External_contribution_-_Smuggling_in_human_beings_-
_an_organised_crime.pdf> accessed 9 November 2018

70
distress in the sea, counseling, sheltering, clothing and so on and so forth155.

Theodore Baird points out that a large number of organizations gain profit by

providing counseling and other services to trafficked and smuggled victims156.

According to Theorde Baird, besides smugglers numerous non-state actors

gain pecuniary rewards from this venture.

2.2. Organizational, Criminological and Network Approach Model

John Salt and Jeramy Stein state that ‗smuggling of migrants is an

established branch of a well-organized international gangster syndicate‘157.

This model158 postulates human smuggling as a criminal act committed by

well-organized networks with links to other transnational crimes. They have

identified the three main functions of the organized criminal groups as

recruitment, transportation and Integration into destination countries159.

There is evidence to prove that smuggling ventures are run by

organized criminal groups. E.g. Chinese human smuggling is run by the ‗Big

Snakeheads‘ which controls transnational networks of the ‗Small

Snakeheads‘, enforcers and debt collectors160. Another example are the

Hungarian-based smuggling groups that are well organized, structured and

highly disciplined161.

155
Theodore Baird, (n56) 5
156
Ibid
157
John Salt, (n23) 31, 35
158
Myrianne Coen (ed.) Human Trafficking, Smuggling and Illegal Immigration: International
Management by Criminal Organizations (Amsterdam: IOS Press 79,2011)
159
Salt and S. Jeremy, (n63) 467
160
Cleo J. Kung, (n22) 1274
161
ibid

71
 Studies indicate that a smuggling venture may be organized by one

individual or a group of persons162. In this organized criminal network, the

brokers play a major role between the smugglers and the migrants 163.

Cleo.J.Kung gives an example to explain this scenario. According to him, the

local Chinese people act as the intermediaries. They recruit customers and

collect the down payments. They also guide the emigrants regarding the

routes. After the migrants have arrived at the destination, the debt-collectors

lock them in safe houses until their fees are paid164.

Theorde Baird states that ‗the Organized Crime Model involves a

control structure where a centrally placed ‘smuggler‘ dishes out commands

and enforces the rules in a social hierarchy‘165.

Although Emma Herman agrees that there are well organized criminal
166
groups that carry out people smuggling, she had added that family circles,

friends and relatives also organize the journey167 by paying money to the

smugglers and providing services such as accommodation, food and other

needs.

To a certain degree, Sheldon X Zhang also has agreed with Emma

Herman. He noticed that smuggling operations occur happen among closely

joined individuals of friends and relatives168.

162
UNODC, (n 115) 11
163
Zhang (n 18 ), 20
164
Cleo J. Kung, (n22) 1274
165
Theodore Baird, (n56) 11
166
Emma Herman (n62 ) 218
167
Ibid, 202
168
X. Zhang ‗Chinese Human Smuggling Organizations: Families, Social Networks, and
Cultural Imperatives‘ [2009], China Review International.

72
 Emma Herman and Sheldon X Zhang differ in finding the role of the

social network. The former claims that social networks facilitate the journey in

terms of payment and providing amenities in the destination whereas the

latter finds that social networks act as the middlemen helping the smugglers

to find out prospective clients.

Sheldon X Zhang claims that these networks could build the trust

between the aspiring migrants and human smugglers. In addition, the

smugglers keep their promises given to the migrants who have been

introduced by the social networks. Further, he notes that in the event of

unsuccessful attempts, Snakeheads will often pay the involved costs to the

potential migrants.

Sheldon X Zhang explains how the law enforcing officials also complicit

in these criminal networks. He supports this position by saying that in China,

many big Snakeheads organize the journey with the assistance of the

government officials. The officials see the Snakeheads as ‗philanthropists‘

because they contribute large sums to improve their home villages169.

2.2.1 Nature of the Organized Group

Another group attempted to theorize the nature of the organized

criminal smuggling network. T. Naylor says that smuggling OCGs are different

to other criminal groups as they have a special knowledge about the business

and are a durable hierarchical structured organization. He further notes that

169
Zhang, (n 18 ) 108

73
these groups use violence and corruption. They extend their activities to the

global economy170. Veronika Bilger and others study also supports this view.

This group devoted their attention to the ways and means of irregular

migration and has focused on the dynamics and the organizational

structures171. They cite that smuggling organizations in Hungary are well

organized, structured and highly disciplined172.

Peter Kwong, an expert on illegal Chinese immigration into the United

States notes that Chinese human smuggling network is sophisticated 173. In

the same study, he noticed that despite the fact that the human smuggling

networks have numerous characteristics; some groups may claim all the

features while some may just fit into just a couple. 174.

Contrary to the organized crime group, there are other advanced

sources of smuggling network which are loose networks that have no clear

command structure, working flexibility and are united on an ad-hoc basis175.

Smuggling by sea is generally carried out by flexible criminal groups. These

groups sign contracts when and where necessary and finish their task176.

Once their task is over, the contract comes to an end whereas the organized

group has continuation in their operation. The UNODC also verifies that

170
T. Naylor , ‗Mafias myths and markers: on the theory and practice of enterprise crime‘,
[2002 ] <http://imumi.org/attachments/article/97/UNODC_Smuggled_Migrants_2010.pdf >
accessed 10 November 2017
171
Bilger at el (n 61)
172
Ibid
173
Samuel (n151)
174
Ibid
175
Cleo J. Kung, (n22)
176
UNODC (n121 ) 1-10

74
criminal groups are undeniably far more cellular in structure with lose

connection made and broken all the time with more subtle hierarchies 177.

Another research178 finding notes an alternative idea with respect to

nature of smuggling networks. This investigation takes note of that the

smuggling services are provided by manifold service providers as opposed to

mafia-like criminal organizations. Henceforth, the potential migrants can get

services from anybody whom they pick.

The above conclusion contrasts from the Salt and Stain model. John

Salt and Jeramy stein have recognized that there several criminal groups from

various countries involved in this activity. They have cited an example in their

article highlighting the interaction between different organized crime groups in

a single task in which the Chinese have endeavored to enter the UK. He

likewise refers Yugoslav, Hungarian, Dutch and Turkish organized crime

groups getting together to transport migrants179.

2.2.2 Tasks of the Organized Criminal Group

In an organized criminal group, the smugglers‘ involvement is task

oriented. Edward R.Kleemans180 makes a distinction between the ‗bridge

builders‘ and the ‗facilitators‘. According to Edward R.Kleemnes, the bridge

builders build territorial and social bridges. They operate at a global and inter-

177
Bilger et al ( n61)
178
, Peterka-Benton D. ‗Human Smuggling in Austria: A Comparative Analysis of Data on
Smuggled Migrants from Former Yugoslavia and the Russian Federation‘ [Summer 2011]
The International Migration Review,215, 230
179
John Salt, (n23) (31, 42
180
Edward R. Kleemans, „Organized Crime, Transit Crime, and Racketeering‘[(2007] , Crime
and Justice, 179,

75
ethnic level. They accept a key role in organized crime. The facilitators181 are

service providers who give a wide range of important services , for example,

enrolling potential migrants , collecting cash from them and arranging forged

documents, transporting them to the other border, taking care of the migrants

during the voyage (in the case maritime smuggling; this is important) , sorting

out the organizing tasks and coordinating the sub procedure between them.

This group includes safe house administrators and overseers debt collectors

both in the source country and in the destination.

The Australian Institute of Criminology has identified ten different

categories of people engaging in a single smuggling process. Finance is

provided by the leaders of the organization for investing and sharing the profit

of the coordinators.182 Transporters and guides take people to the other side

of the border.

Sheldon X. Zhang explains the different tasks of the smuggling group /

members as follows183:

1. Recruiters Relatives or close friends of the would-be migrants. Sometimes

involved in the smuggling operation.

2. Coordinators Make connections to acquire necessary services. Get fee. Their

survival is dependent upon a dyadic relationship with other partners

181
Ibid 208 , A. H. Bajrektarevic ,‘ Trafficking in and smuggling of human beings – linkages to
organized crime – international legal measures‘, [2000] 57
182
Ibid, 399
183
X. Zhang, ‗ The Characteristics of Chinese Human Smugglers ---A Cross National Study ‘
[1999] United States Department of Justice Office of Justice Programs National Institute of
Justice <https://www.ncjrs.gov/pdffiles1/nij/grants/200607.pdf> accessed 10 April 2017

76
 who would provide them with specific services.

China-based transporters help the migrants to get to the border or to

3. Transporters the smuggling ship. Transporters based in the United States receive

the smuggled immigrants from ports and take them to safe houses.

Produce / obtain necessary travel documents through official or

unofficial channels, genuine and false.

4.Document

vendors Officials in China and many transit countries are paid. They act as

facilitators and core members of a smuggling organization.

5. Corrupt public

officials Responsible for the moving of illegal immigrants from one transit point

to another by land or by air. Crew members are people employed by

the Snakeheads to charter smuggling ships or to work on them.

6. Guides and crew

members Were hired by snakeheads to work on the smuggling ships.

Responsible for maintaining order, distributing food and drinking water.

responsible for locking up illegal immigrants in safe houses until their

7. Enforcers. smuggling fees were paid.

8. Debt collectors

Table 4

Source- X. Zhang, ‗ The Characteristics of Chinese Human Smugglers ---A Cross National

Study ‘ [1999] United States Department of Justice Office of Justice Programs National

Institute of Justice

77
2.2.3 Characteristics of the Organization

Sheldon X Zhang has found the following characteristics of Chinese human

smuggling organizations184:

1. Organizational Structure – Non-hierarchical, task force orientation,

collaborative, clear division of labour,

2. Membership of 3-5 individuals

3. Identity and membership – Casual association through social and

family contacts, membership based on capacity to deliver definite

services, no official rituals, no enunciated structural regulations or

group identity, provisional membership and association

4. Operational characteristics – transnational, non-territorial, commercial

and short-term collaboration of individuals, official corruption is done

haphazardly and based on fortuitous personal contacts

5. Use of violence – Instrumental, to enforce contract (payment collection,

to maintain control throughout smuggling / trafficking operations)

Leslie Holmes, another scholar on organized crime, argues that ‗an

organized group consists of more than two people, prolonged time, suspected

of committing crime and motivated by profit‘185. The EU has also identified a

long list of features of transnational criminal organizations are186.

184
ibid
185
Lesly Holmes. Advanced Introduction to Organized crime (Edward Elgar Publication 2015),
2
186
Ibid 3 - It is a collaboration of more than two people, Each member of the organization will
have his / her own appointed tasks, should exist for a prolonged indefinite time, suspected of
the commission of serious criminal offences, operating on an international level, using
violence or other means suitable for intimidation using a commercial or business-like
structure, engaged in money laundering, exerting influence on politics, media public
administration, judicial authorities or the economy motivated by the pursuit of profit and / or

78
Features Notable Examples Other remarks

Criminal network The Chinese Fuk Ching and Big Major task is preparing

should be there for a Snakehead. The Fuk Ching emerged in documents to facilitate

long time and in New York City in the mid-1980s, people smuggling. EU had

operation. founded by a group of young Chinese also provided this criterion.

from China's Fujian Province. This is a commonly cited

The Chinese Snakehead was founded feature

in 1980 and is active till date. It is being

operated in Chinatown, New York City. E.g.: Sheldon X .Zhang,

Kolin Chin CleaJ.Kung ,

Leslie Holmes and EU List

2.Being highly E.g.: ‗Big‘ coordinating agent in Despite the fact that the
187
organized- Pakistan . organization is highly

Most gangs in Hungary retain some organized it is not possible to

kind of internal discipline based on hold any one responsible.

violence. Migrants did not condemn

188
Albanian gang . the smugglers because there

is no single person who can

be held responsible.

3. More than three Yugoslav, Hungarian, Dutch and Article 3(a) of the Protocol
189
persons Turkish, Snakehead

4.Group being E.g.: (drugs, weapons, fraud, and so Salt and Stain Model
190
engaged in several on ) This is evident from the above

power ,The table below provides notable examples of transnational organized groups around
the globe with special features of such organizations.
187
Ali Nobil Ahmad, (n16)
188
Kelly Hignett, ‗Organized Crime in East Central Europe: The Czech Republic, Hungary and
Poland‘ [2004] Global Crime 75,
189
EU require more than two people should involve in organized crime.
190
United Nations Convention on Transnational Organized Crime 2000, art. 4 requires that the
organised criminal group should involve one or more activity.

79
illegal activities Chinese Fuk Chin Snakehead,

Hungarian criminal groups.

it has a hierarchy Libya-based smuggling networks along

191
the North-Western route to Europe

5. Using violence E.g.: Fuk Ching; Its transnational Hungarian criminal groups

criminal activities consist of smuggling have retained their capacity

of migrants across national borders and for violence.

human trafficking that includes coercion Facilitate the activities

(kidnapping) and exploitation in the through Corruption of law

192
destination country. enforcement

6. The organization Thailand police has revealed a complex This shows smugglers are

has fixed a division for organization charts of the smuggling not necessarily formally

tasks among several networks based partly on the analysis of structured

members of the their phone calls.

organization

7. Impose an internal

positive or negative

sanctioning system

8. Laundered money Hungarian criminal groups

with the aid of experts

and is used for

193
corruption

Table 5

191
Deanna Davy , ‗Unpacking the Myths : Human Smuggling from and within Horn of Africa‘,
RMMS Briefing Paper 6 <
https://reliefweb.int/sites/reliefweb.int/files/resources/RMMS%20BriefingPaper6%20-
%20Unpacking%20the%20Myths.pd>f accessed 9 November 2018
192
Stefan Huijboom. < /www.kyivpost.com/article/content/reform-watch/smuggling-corruption-
rife-on-ukrainian-hungarian-border-396756.html> accessed 12 November 2018
193
Edward R. Kleemans, (n 180) 164

80
2.3 Human Rights Based Model.

In the Business and Organized Crime Model, the migrants are mirrored

as clients as well as offenders. Under the Human Rights Based Model, the

smuggled migrants are reflected as sufferers. Art. 5 of the human smuggling

Protocol further emphasizes that smuggled migrants should not be treated as

criminals. In other words, this section indirectly opinionates that the migrants

are victims of smuggling.

The Human Rights Based Model mainly considers two matters. They

are (1) looking at the smuggled migrants as human rights victims, (2)

considering migrants as victims. It specifies that all the states have to protect

the rights of smuggled migrants. The core element here is considering the

victims as the centre point of anti-smuggling measures by prioritizing the

protection of their rights. The victims should be ensured of equal protection

without any discrimination. Special consideration needs to be given to women

and children. One of the reasons why authors are particularly concerned

about the Human Rights Based Approach is that the migrants are subject to

many risks, economic exploitation, deception, degradation along the way,

death and so on. The UNODC notes that ‗Smuggling is not just a business,

but it can be a deadly business‘194. The UNODC further says that the exact

human cost of smuggling is impossible to be determined.

194
Zhang (n18 ), 205 , UNODC (n 121 )

81
2.3.1 Smuggled Migrants as Victims

Studies indicate that the smuggled migrants‘ rights are violated by both

state and non-state actors in the process of human smuggling. Transnational

human smuggling often involves treacherous routes through multiple

countries. During the journey, the migrants lack basic facilities, experience

vehicle breakdown and face health related issues such as labour and sexual

exploitation. Sheldon X. Zhang indicates that certain criminal networks use

threat and violence against the migrants to collect the payment195. Migrants

suffer from a lack of sanitary facilities and crowded living conditions in the

detention camps196. They have to face interrogation, court cases and

deportation in multiple countries after apprehension. In certain instances, they

have to face additional miseries in the law enforcement process of the said

countries.

However, the relationship between smugglers and the migrants end at

the destination as it is just an agreement of service though it is not always the

case. Patrick Radden Keefe points out those Chinese smuggled migrants

pay their balance money after they get jobs197. Further, they enter long term

payment plans with the migrants. As a result, the relationship does not simply

end as said.

195
ibid
196
Ibid 202.
197
Patrick Radden Keefe , ‗Snakeheads and Smuggling: The Dynamics of Illegal Chinese
Immigration‘ , [(Spring, 2009], World Policy Journal, 33, 40

82
 Anne. T. Gallaher‘s study based on this theory claims that in numerous

regions of the world, smuggled migrants‘ freedom is gradually limited198. She

supports this with point with few examples mentioned below 199

(1) In May 2009, the Italian authorities intercepted a boat consisting of

Mediterranean and Somali origins. The migrants were not informed of their

destination. No means were taken to recognize them. Further, all their

personnel possessions had been confiscated. At last, they were detained in

the camps.

(2) Australia violating the human rights obligation when MV Tampa arrived

Australia.

(3) Furthermore, in certain cases, Chinese women migrants confronted sexual

abuse.200.

With such a backdrop, the Human Rights Model justifies why these

migrants should be considered as victims. The advantage of adopting the

Human Rights Model is explained by B.Elizabath as follows: ‗That one

advantage of adopting a human rights model is the ability to hold the states

accountable for how they treat their nationals and other individuals under their

control‘201.

198
Anne T. Gallghar (n5) 605
199
Ibid 6
200
Ibid, 7
201
B. Elizabeth ‗Models Wanted: The Search for an Effective Response to Human
Trafficking.‘ [2004] , Stanford Journal of International Law, 32

83
2.3.2 Human Rights Obligation Towards Victims

The second element of this theory emphasizes that regardless of the

immigration status, the smuggled migrants have certain inalienable rights

arising from international law. David Miller who supports this theory states that

‗Since human rights are universally binding, they must apply to the

relationship between the state and immigrant as well as to other

relationships‘202. Miller further says that the human rights obligation of states

covers both the citizens and non-citizens203.

The authors whose studies based on this model are surrounded with

the international legal provisions of the protocol and other major international

human rights conventions.

2.3.3 Obligation of the Country of Origin.

Migrants violate the immigration laws of the countries by leaving their

state and entering into another by irregular means. We can simply recognize

them as offenders. Having accepted that they violate the laws, the country of

origin can be responsible for their sufferings because it could not (1) address

the root causes of smuggling (2) prevent the operation. Hence, the country of

origin is responsible for the migrants who have undergone hardships at

various stages of the smuggling process.

202
David Miller, ‗Border Regimes and Human Rights‘ [2013] LEHR 4,
203
ibid

84
2.3.4 Obligation of the Transit and Destination

While accepting that these states are able to control irregular migration

to safeguard their interests, it is also their duty under international human

rights law and refugee and the law of the sea to extend the universal human

rights obligations.

Several provisions in the human smuggling Protocol has taken the

Human Rights Based Approach. The Protocol‘s preamble reckons that the

‗State parties note that they are convinced of the need to provide migrants

with humane treatment and full protection of their rights‘. It emphasizes that

the state parties understand the need of providing protection to the migrants.

The importance of human rights obligations is enunciated in the

preamble yet again by emphasizing art. 2. The parties have two obligations.

They are, (1) preventing the crime of human smuggling in their territory and

(2) protecting the rights of the migrants present in their territory 204. Art. 4 also

stresses the protection of the migrants205. As explained earlier, art. 5 of the

Protocol entails the states not to treat the migrants as criminals. Art. 14, para.

1, notes that training should be delivered in preventing migrant smuggling and

in ―the humane treatment of migrants who have been the object of such

conduct, while respecting their rights as set forth in this Protocol.” Art.14 (2)

explicitly records that ―cooperation among competent international

organizations, non-governmental organizations, other relevant organizations

204
‗to prevent and combat the smuggling of migrants, as well as to promote cooperation
among States Parties to that end, while protecting the rights of smuggled migrants‘
205
Smuggling (n14) art.4 ‗the Protocol shall apply ―to the prevention, investigation and
prosecution [of migrant smuggling] … as well as to the protection of the rights of persons who
have been the object of such offences‖.‘

85
and civil society actors should be undertaken in the delivery of such training,

which shall include training on the humane treatment of migrants and the

protection of their rights.‘

Although several articles refer to the need of the rights and protection

of the smuggled migrants, the Protocol does not specify those rights. It

expresses that the state parties should take into consideration other treaties

such as the IHR and Refugee Law in order to give effect to that end.

Research studies based on this model analyses the role of the states

and their institutions criminalizing, smuggling and protecting the rights of the

smuggled migrants. Hence, the transit source and destination countries

therefore, need to adopt the Human Rights Based Approach in the enactment

of law, law enforcement and criminal justice administration.

According to Tom Obakaoto206, this model theorizes that the states

have obligations to ensure the rights of the smuggled migrants irrespective of

their status. Most of the literature is based on this and they focus on the

obligations of the destination countries. It is to be noted that the country of

origin has obligations towards its citizens. First of all, the conditions that lead

to human smuggling should be addressed. The rights of the smuggled

migrants should be focused on after they return as well.

206
Tom Obakato (n 65) 394, 400.

86
 Apart from looking at the migrant‘s rights, the Human Rights-Based

Approach requires the necessary procedural safeguard to be extended to the

perpetrators as well. This basically refers to the procedural fairness in the

criminal justice administration.

2.4 Deterrence Theory and Human Smuggling

The prominent profounder of the Deterrence Theory of Punishment are

Thomas Hobbes (1588–1678), Cesare Beccaria (1738–1794) and Jeremy

Bentham (1748–1832). Deterrence is divided as general deterrence and

specific deterrence.

2.4.1 Elements of Deterrence Theory

The Theory of Deterrence is composed of three independent elements;

severity, certainty, and celerity207. Severity means that severe punishments

will abstain a human being from committing crimes208. Thus, the punishment

enumerated in the law should take into account the causal relationship

between the punishments and encourage people to obey the law. The

severity must deter criminals from committing crimes. Beccaria theorizes if the

purpose of the punishment is to reduce the crime, then the punishment should

not be unjust. He argues that the ‗punishments are unjust when their severity

207
T, Hobbs, Ihekwoaba D. Onwudiwe, Jonathan Odo, and Emmanuel C. Onyeozili DiIulio,
John [1959] J., Jr. 233,237 ttps://marisluste.files.wordpress.com/2010/11/deterrence-
theory.pdf accessed 10 October 2018
208
Ronald L. Akers and Christine S. Sellers, (ed) Criminological Theories: Introduction,
h
Evaluation, Application( oxford university press 2016)
<https://global.oup.com/us/companion.websites/9780199844487/guide1/study_guide.pdf>
accessed 10 October 2018

87
exceeds what is necessary to achieve deterrence‘209. Excessive severity will

not reduce crime but will only increase it. In Beccaria‘s view, ‗swift and certain

punishments are the best means of preventing and controlling crime;

punishment for any other reason is capricious, superfluous, and

repressive‘210.

Certainty of punishment implies guaranteeing that the punishment

happens at whatever point a crime is carried out. Beccaria trusts that if

people realize that their adverse actions will be penalized , they avoid

carrying out the wrongdoing once more.211.

Celerity of punishment must be moment so as to deter wrongdoing212.

This component says that the impending imposition of punishment is for the

commission of the offense; the probability is more noteworthy when the

criminals understand that the wrongdoing does not pay

Thomas Hobbs, has expressed the opinion that people choose to

observe or infringe the law after measuring the benefits and concerns of their

actions213. Bentham is convinced that crime rises from the conscious and

rational considerations of the individua1214. As needs to be, Bentham

contends that an individual anticipating to execute a crime would undertake a

209
Beccaria ‗Deterrence theory‘ (1963) 14
<https://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf> accessed 10
October 2018
210
Ibid.,
211
<https://global.oup.com/us/companion.websites/9780199844487/ guide1/study_guide.pdf>
accessed 10 October 2018
212
Ibid
213
T ,hobbs et al (n 207 ) 237
214
J. Andrews Punishment and Deterrence (Sage Publication 1974) 7

88
cost-benefit analysis and complete the intended action only if potential

benefits can adequately adjust the probable costs. Under this theory, ‗the task

of law enforcement personnel and lawmakers was clear: the risks, or costs,

for a potential criminal had to be so great that he would have far more to lose

than to gain from committing a crime‘215. Beccaria following Bentham

contends that laws ought to be judged by their tendency to bear the ‗greatest

happiness shared by the greatest number‘216.

Beccaria advocates that legislators must define the crime and also

provide specific punishments for each crime. Judiciary has to determine guilt

and the application of the law rather than the spirit of the law. To have a

deterrent value, punishment must be proportionate to the crime committed.

Michelle‘s presentation on ‗A Deterrence Model to Curbing Human

Trafficking in the United States‘ suggests that ‗utilizing this model increases

the probability of prosecutions through local laws increasing the fines and

sentences of traffickers once convicted and increasing the certainty of

detection through increased law enforcement training and public awareness

campaigns‘217.

Since the law enforcement mechanism in both trafficking and

smuggling are similar, his suggestions can be adopted with regard to human

smuggling.

215
ibid
216
ibid
217
Michelle Crawford Rickert, ‗A Deterrence Model to Curbing Human Trafficking in the
United States‘ (Second Annual Interdisciplinary Conference on Human Trafficking,2010)

89
2.4.2 Pleasure and Pain Principle

Beccaria contends that the reality of wrongdoings ought to be founded

on the degree of damage done to the general public. As a supporter of the

Pleasure-Pain Principle or Hedonistic Calculus, Beccaria maintains up that

pleasure and pain are the objects of rationale individuals and that to deter

wrongdoing, the woe of penalty must exceed the pleasure got from

perpetrating the wrongdoing218.

Jeremy Bentham argues that ‗nature has placed mankind under the

governance of two sovereign masters, pain and pleasure‘219. Bentham trusts

that ethical quality advances the ‗greatest happiness of the greatest

number‘220; a phrase that was also common to Beccaria. According to

Bentham the obligation of the state ‗to promote the happiness of the society

by punishing and rewarding‘221.

2.4.3 Arbitrary Punishment

Bentham and Beccaria are against arbitrary and barbarous punishment

imposed in England. They summarize that the object of law is to increase the

happiness of the people by increasing the pleasure and lessening the pain of

the community. Punishment imposed more than required is unjust 222.

International human rights instruments too advocate the principle of equality,

just and fair punishment for the offenders. Based on the above principles of

218
J. Andrews (n 214 )
219
Bentham, 1948, 125. - Bentham believed that morality is that which promotes ―the greatest
happiness of the greatest number
220
Moyer, 2001, 26
221
Bentham, (n 219) 189
222
J. Andrews (n 214 )

90
the Deterrence Theory, an evaluation of the UNCTOC and the Protocol is set

out below:

1. The UNCTOC considers human smuggling as a serious transnational

crime and should be punished accordingly. (Severity)

2. The aim of UNCTOC and the Protocol is to punish the offender. – By

doing so, it teaches both offender and the prospective offender not to

commit the crime. (Beccaria, Bentham and Hobbs)

3. The Protocol emphasizes that the action based on humanitarian

grounds should not be punished. The rationale behind this provision is

that the person who facilitated the irregular journey did not aim to get

any benefit out of his act. (Bentham and Beccaria)

4. When states impose punishments on the wrongdoers, it has to take the

sufferings of the migrants and the benefit enjoyed by the smuggler into

account – (Bentham‘s Pain and Pleasure Principle) –

However, there is no universal application for the Principles of

Deterrence in regard to human smuggling. The following examples will

explain this position in detail: (a) The penalties provided for people

smuggling crimes differ from jurisdiction to jurisdiction and are based

upon diverse legal traditions, jurisprudence, national practices and

policies.-E.g. (a) In certain countries, people smuggling is not

considered as a serious crime.

(b) Extradition law in certain countries does not extradite the person

requested on certain grounds.

91
(C) In some jurisdictions, aggravated factors may be expressly prescribed in

laws while in others, they may be reflected in the jurisprudence. E.g. Canada,

section 121 of the IRPA requires the courts to consider these factors.

Migration Acts, 1958 in Australia too expresses this in their law. In Sri Lanka,

there is no such requirement but it is reflected in the criminal justice process.

2.5 Demand and Supply Model

A set of scholars look at the issue of human smuggling in relation to

labor demand and supply. Demand in the destination country for cheap labor

attracts people from source countries.

In classical theory, contrast in wages between sending and receiving

countries are viewed as the most significant factor motivating people to

migrate. Massy has put forwarded this argument223. The Dual Market Theory

of international migration also emphasizes a similar argument224. Porte‘s

research asserts that there is relationship between the labor market of the

destination and human smuggling225.

Ronald Skeldon supporting this theory explains that the cause of

migration226 is influenced by two factors:

223
Zhang (n 18 ) 16 – He states that ‗sharp discrepancies in the supply of labor between
countries have long served as a magnet to draw people from developing countries to
developed countries‘
224
Zhang (n 18 ) 17
225
Theorde Baird (n 56)
226
Department of Economic and Social Affairs Bangkok, United Nations Economic and
Social Commission for Asia and the Pacific Population Division, ‗Migration and Development‟
United Nations Expert group Meeting on International Migration and Development In Asia
and The pacific (Thailand 20-21 September 2008
)<http://www.un.org/en/development/desa/population/events/pdf/expert/14/P04_Skeldon.pdf>
accessed 24 March .2018

92
 The low productivity rate in most of the developed states requires fresh

labor to sustain the economic growth.

The rising levels of education in the West have reduced the demand for

low paid and unskilled jobs227. This view has also been supported by Douglas

Massey. He argues that a ‗bifurcating labor market in developed nations

creates a structural demand for unskilled immigrant labor to fill undesirable

jobs that native-born citizens do not take, regardless of wages.‘

Similar to Skeldon, Douglas Massy argues that,

‗Post industrial economies have a widening gap between well-paid and

white-collar jobs that require higher levels of education and "human

capital" which native-born citizens and legal immigrants can qualify to

take up while the bottom-tier jobs that are stigmatized require no

education‘. 228

Since the native-born workers do not like to do menial jobs, there is a

demand for migrant workers. Irregular migrants who possess lesser levels of

education are ready to meet this demand. The Structural Demand Theory

recommends that unskilled workers simply consent the adverse jobs without

taking up low paid work to fulfill their issues of unemployment.

227
Ibid
228
Satvinder Singh , International Migration and Global Justice (Ashgate, 2006 )

93
 According to Cleo J. Kung, labor with low wages available in

destination countries is a pushing factor for human smuggling 229. Satvinder

Sing also supports this view. He says that there is a connection between

cheap labor and human smuggling in the destination countries230.

The country of origin also encourages people to move to solve

unemployment related problems. Scholars whose research inquiries are

based on this model depicts that human smuggling is a business determined

by the market forces of the destination. China is a very good example for this

scenario. They choose the US because there is a huge demand for cheap

labor.

Alison Mountz‘s study supports the above argument.231. She claims

that an increased demand for cheap labour is a pushing factor in human

smuggling232. She explains that until 1986, the US did not take any measures

in discouraging or rather stopping irregular migration. The changes in the law

to regulate irregular migration has encouraged the human smuggling

industry233.

229
Cleo (n 22) 1272
230
Satvinder (n 228 )
231
unskilled migrants have played a significant role in booming the economy of the US in the
1990s This term is used to include irregular migrants which essentially include smuggled
migrants
232
Alison Mountz (n 28) 13
233
Ibid, 14 - The Immigration Reform and Control Act and Immigration and Naturalization Act
(INA)

94
2.6 Gender Approach Based Model

According to Anne.T Gallahar234, this model analyses the gender

relations and gender differences in human smuggling related issues and

conceives how men and women are exploited in human trafficking. Arther C

Helton and others , commenting on this theory in relation to human

smuggling, indicates that men are smuggled into forced labor while women

are more vulnerable to human rights abuses and sexual misuse.235. Another

scholar, Edward R. Kleemans, who supports this model, demonstrates how

smuggled women are forced into sexual exploitation236. This has been

additionally confirmed by another research which clarifies that several women

are carried from Eastern and Southern Europe into Western Europe for

prostitution. Prostitution is legal in Netherlands and Germany237. The migrant

women are sometimes sold to smugglers to be taken to another country for

financial gain. They end up in prostitution. The Chinese scholar has reported

that sexual exploitation was particularly noted in boat – based smuggling

operations238. Sheldon X Zhang, in his study, points out how sexual

exploitation happens while traveling239.

Although the Protocol defines the ultimate purpose of smuggling is

financial and other material benefits, the above cited examples show that the

migrants are subjected to other risks and exploitations as well. Generally,

234
Anne T.Gallaghar, ‗Human Rights and the New UN Protocols on Trafficking and Migrant
Smuggling – preliminary Analysis‘[ 2001] human Rights Quarterly 975
235
Arthur c. Helton and Eliana Jacobs, (ed), Arresting Transnational Crime (2000 ] 39
236
Edward & Kleemans, Organized Crime, Transit Crime, and Racketeering 35(1) Crime and
Justice in the Netherlands, 172 (2007), pp. 163, 215
237
Philip Martin UCD, ‗Smuggling and Trafficking:‘ [Autumn 2000] A Conference Report , The
International Migration Review, pp. 969-975 http://www.jstor.org/stable/2675952 Accessed:
31-03-2017 09:12 UTC accessed 10 February .2017
238
Zhang (n18) 204
239
Zhang (n18) 205

95
trafficked women are being caught up for sexual exploitation. Since there is a

marginal difference between these two offences, the theory covers both

crimes. Another facet of this model reveals that the gender aspect can also

add to how the women dependents can suffer once the breadwinner of the

family is arrested by the authorities.

240
According to Allison Petrozziello , the laws have to take the Gender

Based Approach in addressing migration issues. The Protocol also requires

the states to be more considerate towards the smuggled women.

The theory emphasizes the point that gender-based violence and other

issues in the human smuggling process should be identified. The state laws

and policies on human smuggling have to recognize the experiences of the

smuggled women and children and address their special needs.

At the outset, this theory contemplates that specific vulnerabilities of

women explained above must be addressed through legal procedures of the

country concerned.

2.6.1 Gender Approach in Organizing Human Smuggling

Many studies on organized crime have mainly focused on male-based

criminal networks. Sheldon X Zhang notes that ‗the theories derived from

gender specific criminal organizations are limited in their ability to explain

240
Allison Petrozziello, Mainstreaming Gender in Migration and Development ( A discussion
2016) < https://www.empowerwomen.org/en/community/discussions/2016/09/mainstreaming-
gender-in-migration-and-development> accessed 10 December .2017

96
women‘s participation in organized crime, because they explain a social milieu

that precludes women from participation‘241.

Although there are no empirical studies conducted on representative

samples, there are few examples to contradict the above argument. Sheldon

X Zhang‘s study is developed focusing on the gendered market perspective.

He cites a single model of women‘s participation in the smuggling industry in

China242. E.g. Sister Ring, a leader of an international criminal organization

specialized in transporting illegal migrants from China to America is called the

‗mother of all Snakeheads‘. After so many attempts, she has been arrested by

the Hong Kong authorities in April, 2000 and was extradited to the US to

stand trial for her role in the Golden Venture incident243. Later, Sister Ping was

sentenced to 35 years on charges conspiring to committing multiple organized

crimes244. Another example is a Chinese woman marrying a leading

immigration lawyer in New York and facilitating her husband by hiring clients

from China245.

Some researchers are of the view that women‘s participation in

organized crime is based on the belief of the need of a woman in the

expansion of the criminal market246. Further, the traditional woman‘s role in

the society is now being changed. Changing roles of the modern world

241
Zhang (n 18) 187
242
ibid
243
ibid 184
244
ibid 186
245
Wenchao Wei , Putting the Family First: Chinese Wives‘ Stories of Migration to Britain,
PhD Thesis University of York Centre for Women‘s Studies May, 2011) <
http://etheses.whiterose.ac.uk/1578/2/the_whole_thesis_pdf.pdf > accessed 20october 2017
246
Zhang (n 18 ) 188

97
woman247 has proved that the female smugglers appear to be better educated

than their male counterparts. While males work on formal agreement, the

women smugglers use family ties, friends and relatives in performing their

tasks.

2.7 Other Models

248
Aronowitz A.A and Sheldon X Zhang249 have suggested the models

‗Estimates of Flow, Model of Crossing and Likelihood of Apprehension Model‘.

They look at the statistical models of apprehension, population estimates of

stocks and flows and the estimates of the probability of capture. This is

basically based on the number of boats or vessels intercepted and the

number of smuggled migrants arrested / detained and deported. But there is

no proper data to support this model. As per this model, when regular access

is closed, then the smugglers search for circumvent roots from their

operations250.

Another model is the Global and Comparative Structural Model. This

model is based on comparing smuggling contexts across time and space;

usually single state or two-state comparisons. E.g. Comparative studies with

two regions or two jurisdictions. According to Petros and Melanie251 ‗human

smuggling is viewed as a product of political, economic, legal and social

247
ibid
248
Aronowitz, A. A. ‗Smuggling and trafficking in human beings: The phenomenon, the
markets that drive it and the organizations that promote it‘ [2001] . European Journal on
Criminal Policy and Research, 163-.
249
Zhang (n 18 )
250
ibid
251
Petros, M. (n69) (2005). The costs of human smuggling and trafficking. Global Migration
Perspectives, Report No. 31, April 2005. Geneva: Global Commission on International
Migration (GCIM).

98
factors which differ across space and time making allowances for

comparisons.‘

The Global Historical-Structural Approach highlights the different

causes, types of organized groups, routes and consequences of human

smuggling in different places and at different times across the globe. E.g. The

UNODC has carried out research studies with this approach. However, only a

limited number of research studies have been carried out on other models as

most studies have been based on traditional models.

2.8. Theoretical Models and UNCTOC and the Protocol:

Comparative Analysis

The UNCTOC and Protocol have been compared to examine to what

extent these instruments have reflected the theoretical background of human

smuggling

Models UNCTOC Protocol

Organized Crime Model Article 2 (a) define organized Article 2 (a) read with Article

criminal Group 3 (a) of the Protocol

Characteristics of the group: These features are included Organized crime

More than three persons in the definition

Structured

Existence for a period of time UNCTOC does not include

No geographical boundary this type of group. It should

be an organized group.

Flexible group

Business Model Motivation is profit Motivation is profit

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Human Rights Model Preamble, Article 4. 6, 16

refer to the rights of

smuggled migrants

One of the aims is to protect

the rights of smuggled

migrants State obligations-

Root causes should be

addressed by the source

country

Rights of the smuggled

migrants should be protected

by source, transit and

destination

Gender Approach Special consideration to be

given to women, refers to

CEDAW

Deterrence Theory Serious crime minimum of 4 Serious crime minimum of 4

years yeas

Aggravated circumstances Aggravated circumstances

have to be taken into account have to be taken into account

States require to penalize the States require to penalize the

domestic law domestic law

Demand and Supply Root causes should be

identified – this provision was

brought in by keeping cheap

labour in mind

Table 6

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 Each of the above models has its own characteristics. Although it has

been categorized into different models, there are overlaps among these

models.

Theorde Baird contests the current theories on human smuggling by

saying that the traditional definition of human smuggling just incorporates

three components that are enabling the cross-border movement, cross-border

movement must be for the profit and involving payments by the migrants or a

third party and the migrants are promised to participate voluntarily in both

payment and crossing the border252. He states that migration strategies are

more complex. We cannot confine them to these three elements stated

above. He argues that the existing models just discuss about the migrant and

smuggling based solely on profit and that the social relation and institution in

which actors involved are entrenched have been ignored. 253.

As indicated by him, we must critically attend to the social mechanisms which

offer growth to the phenomenon of how the social category itself has

emerged, how individuals have responded under the condition of state

prohibition and control and the hazards emerged from prohibition.

252
Theorde Baird, Human Smuggling in the Eastern Mediterranean [2016] , Taylor and
Francis 2
253
Ibid

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