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5. Operational definitions5.3 T5.3 THEUNITEDNATIONS DEFINITION OF “SMUGGLING OF MIGRANTS”Pursuant to article 3 of the Protocol on the smuggling of migrants, supplementingthe 2000 United Nations Convention against Transnational Organised Crime, thesmuggling of migrants (hereinafter referred to as “smuggling of migrants” or simplyas “smuggling”) consists in the “the procurement, in order to obtain, directly orindirectly, a financial or other material benefit, of the illegal entry of a person into aState Party of which the person is not a national or a permanent resident”.According to paragraph (b) of the same provision “illegal entry” means “crossingborders without complying with the necessary requirements for legal entry into thereceiving State”.As with trafficking, so with smuggling the States Parties undertake to criminalisethe conduct described. 17The smuggling of migrants is the procurement of illegal entry into a country for aperson who is neither a national nor a permanent resident of that country. 18This conduct is intended to obtain a material or financial benefit: the intention togain money is essential. The provision does not cover other economic activitiesconcerned with migrants. Criminalisation concerns solely the smuggling andtransportation on which illegal immigration is based.One of the purposes of the Protocol is to protect the rights of migrants subject toillicit smuggling (article 2). Nevertheless, the definition of the smuggling ofmigrants does not refer to them as victims, nor there are provisions regarding thepossible consent given by the latter. The choice not to consider as a victim theperson who voluntarily resorts to criminal groups that earn money from illegalimmigration is justified by the different role played by that person, who is no longera passive subject in relation to the smugglers, but rather an active one, in the sensethat the migrant has deliberately undertaken migration by investing his/her owncapital. The smuggling is often based on contractual relationships between themigrant and the smugglers. The former buys a service (transport across the borders17 The conduct to be criminalised is stated by article 6 of the Protocol. In respect to the smuggling ofmigrants, it comprises not only the activities of transport and smuggling but also the so-called“instrumental” criminal offences like the production of fraudulent travel or identity documents, or otheroffences such as enabling a person to remain in the country unlawfully.18 On this point see G. Carlin, “Traffico e trasporto di migranti: il Protocollo internazionale firmato aPalermo” [Smuggling and Transport of Migrants: the International Protocol Signed in Palermo], in AffariSociali Internazionali, no. 4, 2001.35