International Protection for Smuggled Migrant Human Rights

Smuggled migrants will be vulnerable to other violations that may occur due to the process of smuggling migrants or their implications. In a report released by UNODC (United Nations Office on Drugs and Crime) reports that smuggled migrants sometimes suffer severe psychological and / or physical abuse and trauma during the smuggling trip. Loss of life due to drowning, suffocation and dehydration to reports of deaths as a result and violence by smugglers. Thus it can be said that this smuggling activity has the potential to seriously jeopardize the lives and health of those smuggled, so that smuggled migrants have the potential to become victims of human trafficking or be vulnerable to other violations, which are in principle universal as directed by civilized countries that one of them is transnational crime organized including qualifying crime against humanity with the motive for smuggling migrants, which certainly involves extra territorial jurisdiction, it has become a commitment to the principle of universality. (Danielle Ireland Piper, 2013: 70).

Besides that it is known as universal human rights, also recognized local human rights in a country, as a form of non-intervention extraterritorial jurisdiction. The principle of non-intervention prohibits the state from interfering in the affairs of the sovereignty of other countries. According to Emmerich de Vattel (Year 1757) Swiss legal experts articulate the principle as follows: "Foreign countries do not have the right to interfere in foreign government. Governing oneself in accordance with one's wishes is an attribute of the independence of a sovereign state that should not be disturbed by another country unless the country has given the right to intervene in its affairs. (David J. Gerber, 1984: 210).

Smuggling activities do take place involving the approval of migrants themselves although in the agreed definition of this crime there is no mention of the word 'agreement', which then provides an element of view that migrants in a smuggling situation are not seen as victims of crime or violations of human rights humans as well as trafficked people and consequently their assistance and protection needs are reduced. However, the state as the main responsibility of human rights obligations is based on international human rights treaties and customary law is obliged to ensure that migrant rights are "respected, protected and fulfilled" to prevent crimes and human rights violations against migrants who are victims of migrant smuggling crimes or other crimes which are the impact of the smuggling activities The approach with respect, protection and fulfillment of the human rights of migrants is the basis for ensuring the identification of smuggled individuals, providing assistance and protection, access to justice including the right to recovery. States and non-state actors must provide rights-based responses and protections that apply under specific protocols and human rights law.

            Criminalizing people based on their migration status can lead to a number of other human rights violations, including discrimination, arbitrary arrest and detention, family separation, and inability to access critical health care, education or other rights. Such an approach increasingly encourages migrants to live and work in the shadow of the community and increase their vulnerability to exploitation and abuse by the State and private actors. Dangerous situations such as armed conflict in a country, rescue by using smuggling services may be an important route to safety and when looking at efforts focused on preventing or eradicating migrant smuggling can actually deny human rights, namely the right of all people to leave any country including their own country and the right to seek asylum. Although irregular entry is a violation of national borders and immigration laws are administrative violations but irregular entry and stay by migrants should not be treated as a crime due to the fact that crossing borders or living in a country irregularly is not a crime against people, property or national security, further in Article 5 of the Migrant Smuggling Protocol, requires countries not to criminalize migrants for using the services of smugglers. Migrants who are in irregular situations should not be treated as criminals, or as a threat to national or public security. 

Article 9 of the Universal Declaration of Human Rights (UDHR) and the ICCPR stipulate that everyone has the right to liberty and security of a person and that no one will be subject to arbitrary arrest or detention. The Human Rights Committee has interpreted the right to freedom and prohibition of arbitrary arrest / detention in Article 9 (1) of the ICCPR which requires any action that imposes restrictions on this right that is "must be justified as reasonable, necessary and proportionate in light of the circumstances ", as a result, the legal basis in national law for each detention must establish the basis for detention permitted and the detention of asylum seekers, refugees and migrants in irregular situations must be used as a measure of last resort and their implementation must be evaluated in each case "Therefore, asylum seekers" may be detained brief periods in order to document their entry, record their claims and determine their identity, "However, further detention will require" such as an individualized likelihood of abortion, a danger of crimes against others or a risk of acts against nationalsecurity "Prohibition of arbitrary detention g is an absolute norm and cannot be removed from customary international law. In addition, criminalizing irregular migration is not a valid justification for the use of immigration detention, and often leads to arbitrary detention. Children must not be detained for immigration-related purposes and States parties must take steps to ensure that national law does not permit the detention of children in such cases. Decisions regarding the detention of adult migrants must also take into account the effects of detention on their mental health. Any detention needed must be made in a proper facility, sanitary, non-punitive, and may not occur in prison.

The role of the International Criminal Court (ICC) as an international judicial organization is given the opportunity and duty to impose legal sanctions for legal jurisdictions for drug trafficking crimes, migrant smuggling, human trade and the like, will provide greater certainty to arrest, prosecute and punish those who organize, carry out or be involved in this crime. The ICC will make international law enforcement more efficient and add a layer of criminal justice, it will provide another forum for prosecution other than those established at the national level (Andreas Schloenhardt, 2005: 4)