Human rights or State rights? On the criminalisation of solidarity

By Andrea Visentin, 23rd June 2021

The criminalisation of humanitarian assistance has been a growing problem in the European Union since the migration crisis of 2015. This is not only a practical problem because it puts more lives at risk, but it is also a theoretical one, because it shows the shortcomings of the human rights system against the State system. Following a recent report of the LIBE Committee of the European Parliament, criminalisation of humanitarian assistance in this article refers to the policing, intimidation and establishment of administrative sanctions or criminal proceedings against citizens, migrants, and volunteers or employees of NGOs and private sector actors who have assisted migrants and asylum seekers for humanitarian motives.

Source: @nikkotations / Unsplash

As the LIBE report says, out of the 28 NGO-operated search and rescue vessels that have been operational in the Mediterranean and the Aegean since January 2015, 18 have faced administrative and criminal investigations and spent time impounded or unable to sail on instruction by Italian, Greek, Maltese, German, and Dutch authorities.  In the same period, even if arrivals of migrants decreased, the risk of death – meaning the percentage of people that die at sea – has increased. Furthermore, the COVID-19 pandemic has been used as an additional excuse to close ports to migrants and NGO vessels.

This criminalisation stems from a fundamental problem in the system of human rights. Human rights are supposed to be universal, natural, and unalienable, but the truth is that they are not. They are bestowed upon citizens by the State, which is the authority that can decide who can have rights and who cannot. There is a system of international law put into place to curb this issue, but the final decision is always taken by the State. In this particular case, there is a strong contrast between the right to life of the migrants that are trying to reach Europe, the principle of non-refoulement, and the right of the State to preserve sovereignty over its territory and population.

Providing assistance to people in distress at sea is a responsibility of all states under international law (1982 UN Convention on the Law of the Sea, 1974 International Convention for the Safety of Life at Sea). Furthermore, the non-refoulement principle prohibits States from returning individuals to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation. On the other hand, smuggling of migrants is internationally recognized as a crime. The line between the two can be blurry in some circumstances. The UN Smuggling of Migrants Protocol specifies that there is a crime only if the facilitation of entry is made for profit. This is specified exactly to make sure that humanitarian aid is not considered a crime. EU law is slightly different. Under what is known as the “Facilitators’ Package”, the decision to criminalise or not actors facilitating entry of migrants is at the discretion of the Member States. There is an optional clause that is intended to exclude humanitarian actors from being criminalised, but that is just an optional clause.

When it comes to EU Member States, many of them consider facilitation of entry as a crime even when the smuggler does not profit. This is what allows States to criminalise the operations of the NGOs as soon as there is the slightest suspicion of smuggling. Unsurprisingly, in a report requested by the PETI committee in 2018, the Facilitators’ Package is considered to be “essentially a bad law that is not fit for purpose in the evolving political and legal context of the EU”; and again in same report: “the Facilitators’ Package gives Member States permission to stretch the definition of smuggling as far as to criminalise acts without any criminal intent, including those conducted by civil society actors to whom thousands owe their lives”. The Fundamental Rights Agency has also expressed concerns multiple times, the latest instance being the Fundamental Rights Report 2021, about the intimidation, policing, and criminalisation of humanitarian workers.

Source: @audeandresaturnio / Unsplash

At European Union level, the New Pact on Migration and Asylum signed in September 2020 doesn’t do much about the criminalisation of humanitarian assistance: the Commission only provides guidance on how to apply the already existent Facilitators’ Package, with all its shortcomings. On the other hand, the New Pact calls for an improvement and enlargement of the operations carried out by the European Border and Coast Guard Agency (FRONTEX). This Agency has always been criticized by civil society actors for its lack of accountability and transparency, and its respect for human rights has also been questioned. Recently, three NGOs have filed a case against FRONTEX on behalf of two asylum seekers that have been “violently rounded up, assaulted, robbed, abducted, detained, forcibly transferred back to sea, collectively expelled, and ultimately abandoned on rafts with no means of navigation, food or water”. On the other hand, a lot of NGOs have been accused of helping smugglers, often without any real ground for their accusations.

Humanitarian workers should never have to worry about their own legality. The possibility that humanitarian assistance could be criminalised undermines the efficiency of NGOs that operate in this field, and also makes you question the so-called “advanced cultures” that criminalise these behaviours. Even if you don’t want to believe in the good will of NGOs, the presumption of innocence should be the principle that guides the investigations in this field, like in any other. Every time an NGO vessel is forced to stay in a port to wait for legal and criminal procedures, thousands of migrants could be dying at sea. The bare minimum should be to make these procedures faster, in order to stop NGOs for as little time as possible. A better way to do this would be to implement the “profit clause” at European level, in order to uniform the situation in Member States. But in any case, the dispute between States, coastal guards, FRONTEX and NGOs is not one that will be solved easily nor soon.