Morocco States that do not explicitly include fi a ial or other aterial e efit
50 migrant and his or her family in raising that fee. Here the sale of family jewelry or
ancestral homes in order to raise the smuggling fee was pointed to as the potentially aggravating factor rather than the actual profit received by the smuggler.
Practitioner insights into the role of organized crime: The provision that addresses migrant smuggling is concerned with organizing of migrant smuggling, although
this was not understood by practitioners to relate explicitly to organizing in the context of organized crime . The linkages between migrant smuggling and
organized crime were explained as addressed by the Terrorism Financing Act of 2016 and joint work with the Australian government on assessing whether proceeds of
smuggling fund terrorism, and amendments made to the Money Laundering Act in 2011 to include both migrant smuggling and human trafficking as predicate offences.
Practitioner insights into evidentiary challenges: Practitioners were of the view that inclusion of FoMB as an element in smuggling of migrant offences would pose
significant challenges to prosecutions. While the view was expressed that profit is almost always the incentive for smuggling crimes, practitioners pointed to
evidentiary difficulties associated with the fact that smuggling fees are generally not paid until the migrant has arrived in the destination country. Often, smugglers
promise several attempts until the venture is successful before receiving payment, meaning that actual evidence is outside of Sri Lankan jurisdiction and that migrants
have no incentive to make statements to authorities as to whether payments were made.
No humanitarian or other exemptions in law: The broad range of options provided under s.45C for what can constitute organizing readily captures all incidents of
facilitating irregular migration, irrespective of whether the motivation is humanitarian rather than financial. With the exception of a situation where migrants
in distress are rescued at sea, which would not be considered under the provision for want of intention, practitioners considered all cases of facilitated irregular migration
for humanitarian reasons to fall within s.45C as a strict liability offence. Whether the role played by migrants in smuggling ventures e.g. by steering smuggling vessels,
cooking food for migrants during the journey or offering medical assistance to persons on board would constitute assisting the smuggling venture was an issue of
significant contention, with practitioners disagreeing as to whether such acts could or should be charged as smuggling, or whether such circumstances should simply
serve to mitigate sentences. Criminalization of smuggled migrants: Practitioners emphasized that criminals are
the target of anti-smuggling efforts, not migrants themselves. While provisions included in the Immigrants and Emigrants Amendment Act address irregular
migration offences, practitioners emphasized that, in practice, the maximum penalty imposed for such offences is a fine, and that such persons are never incarcerated but
are treated as witnesses. During his 2014 visit to Sri Lanka, the United Nations Special Rapporteur on the human rights of migrants was assured that intercepted
smuggled migrants are not penalized, but considered as victims of migrant smugglers, and that criminal action is only taken against smugglers. However, the
51 Special Rapporteur received conflicting information that such persons would be
imprisoned.
62
Practitioner insights into international legal cooperation: Practitioners emphasized that international cooperation with respect to evidence exchange is a priority for Sri
Lanka and that such cooperation is indeed taking place. The Sri Lankan government entered into a Memorandum of Understanding MoU with the government of
Australia in November of 2009 concerning legal cooperation. This MoU includes a commitment to harmonize Sri Lankan and Australian migrant smuggling legislation
i o plia e ith ele a t i te atio al e h a ks . The MoU does not explicitly state what these benchmarks are. Additionally, Australia and Sri Lanka
launched a Joint Working Group on People Smuggling and Other Transnational Crime in 2012, the third meeting of which took place in Colombo in June 2016. The
presence or absence of the FoMB element was not considered to be a barrier to extradition. However, no smuggling-related extradition requests have been made by
or to Sri Lanka. Practitioner views on potential guidance to States Parties: Practitioners were in
favour of the Sri Lankan legislative approach that offers a broad range of options to capture prohibited conduct and noted that the law as framed does not pose
prosecutorial challenges. Distinctions between smuggling by organized criminals, and smuggling by family members or petty criminals may not be made in law but
practitioners considered that prosecutorial discretion in relation to which charges to lay and judicial discretion in relation to sentencing can mitigate risks of treating
family member and organized criminals alike. In their view, the profit aspect of migrant smuggling is a given, that need not be captured in legislation as an element
of the crime. If it were required to be proved, prosecutions might be compromised where witness statements could not be obtained from smuggled migrants.
Practitioners also took the opportunity to explain why combating smuggling is a key priority of Sri Lanka as an origin country. In their view, migrant smuggling constitutes
a threat to national security with its potential linkages with terrorism. More broadly, irregular migration from Sri Lanka is considered to impact negatively on the regular
migration regime.