Guest post by Laura Schack. Laura is a PhD researcher in Politics and Information Security at Royal Holloway, University of London. Her research analyses the criminalisation of pro-migrant civil society during the European refugee crisis. In 2019, she spent four months conducting field research in France, Greece and Italy.

Introduction

Humanitarian actors helping refugees and migrants in Europe have repeatedly faced accusations and charges of migrant smuggling in the last years. The 2019 arrest of Carola Rackete, the Sea Watch captain, is perhaps the most well-known example, but it is only one of many. For example, at least nine volunteers in Greece conducting search and rescue activities on Lesvos island were arrested and charged for human smuggling, five in 2016 and four in 2018. In Denmark, almost 300 people were prosecuted and fined for human smuggling in 2016 for helping refugees who were passing through the country. And in 2017, the Iuventa, the search and rescue ship belonging to the NGO Jugend Rettet, was confiscated in Italy while its crew continue to face charges for human smuggling which could result in over 20 years in prison.

The criminal charges laid against these humanitarian actors are based on the Facilitation Directive, the EU’s legal framework for tackling human smuggling. This is due to the way in which the directive’s ambiguous formulation, which deviates from the UN definition of migrant smuggling and only includes an optional humanitarian exemption, leaves ample space for European authorities to target people and organisations helping refugees and migrants. Given the shrinking space within which pro-migrant civil society can act, a revision of the Facilitation Directive would send a decisive and vital message.

A view of Turkey from Lesvos island, where Sarah Mardini and Sean Binder were volunteering before they were arrested and detained in 2018 (Photo: Laura Schack)

The Facilitation Directive

The EU Facilitation Directive, passed in 2002, was introduced to combat migrant smuggling, i.e. helping migrants to enter or stay in a country illegally in exchange for financial or material gain. The directive provides guidelines concerning the facilitation of illegal entry, transit, residence and stay of irregular migrants in EU Member States. While the directive is allegedly used to prosecute smugglers, it has been systematically used to prosecute EU humanitarian and civil society actors for smuggling-related crimes due to two key features.

First, contrary to what was established in the UN Protocol against the Smuggling of Migrants by Land, Sea and Air, the directive does not require the existence of the motivation of material benefit for an act to count as smuggling (material benefit includes any kind of financial or non-financial inducement or payment). This omission in the Facilitation Directive is conspicuous: while the directive outlines material benefit as a requirement for the prosecution of those who enable the stay and residence of irregular migrants within Member States, there is no such condition in the article on the facilitation of entry.

The 2018 study Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 Update found that this lack of definitional clarity has resulted in legal uncertainty and widespread non-conformity of Member States to international rights standards. According to the study, only four EU Member States (Germany, Ireland, Luxembourg and Poland) are in line with the UN standards requiring proof of a material benefit in smuggling prosecutions. It further found that 13 Member States, including France and the UK, did not require the profit motive to establish the crime of facilitating residence and stay, constituting non-compliance to the Facilitation Directive itself which, however, has not resulted in any kind of sanctions or measures being taken against these Member States.

The second feature of the Facilitation Directive which has left space for the prosecution of humanitarians for migrant smuggling is the humanitarian exemption which states that ‘any Member State may decide not to impose sanctions […] where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The voluntary nature of this clause, however, leaves open the option for Member States to prosecute people aiming to provide humanitarian assistance for migrant smuggling. Furthermore, the directive does not define what exactly counts as ‘humanitarian assistance’. This allows the Member States which choose to implement the exemption to draft very narrow interpretations of ‘humanitarian assistance’ in which, for example, only situations of life and death are covered. Due to these ambiguities, even in those few Member States which have implemented the exemption, including Belgium, Greece, Italy, Malta and the UK, criminal investigations and prosecutions against humanitarian actors have still taken place.

Accordingly, criminal smuggling-related investigations and charges against NGOs, volunteers and individuals (such as those helping family members) have dramatically increased since 2015. A recent report by the Research Social Platform on Migration states that as of December 2019 there have been at least 60 cases, involving at least 171 individuals in 13 Member States: Belgium, Croatia, Denmark, France, Germany, Greece, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland and the UK. The majority of cases are in Greece, Italy and France. According to the report, 44 cases were based on the crimes of facilitation of entry or transit, 10 were based on the crime of facilitation of residence, and six were based on multiple grounds in which smuggling charges were accompanied by accusations of other crimes including money laundering, membership of a criminal organisation and espionage.

Pushing for Change

In response to these cases, there have been several demands seeking clarification concerning the directive. The 2016 study Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants found that the Facilitation Directive acted as a deterrence to the provision of assistance to migrants and refugees and recommended legal reform in order to bring European policies in line with international criminal justice and rights standards. Subsequently, in 2017, the European Commission reassessed the Facilitation Directive, but concluded that there was insufficient evidence suggesting that individuals acting out of compassion were being prosecuted to justify reform.

Following an NGO-led campaign, the European Parliament adopted a resolution to end the criminalization of humanitarian aid in July 2018. They called for Member States to implement the humanitarian exemption and for the European Commission to provide clearer guidelines for Member States. In response, the Commission again stated that there was not enough evidence showing that the Facilitation Directive was the cause of criminalisation to justify legislative change.

In July 2019, a joint statement calling for the EU to ‘stop the criminalisation of solidarity with migrants and refugees’ was published and signed by over 100 European civil society organisations. It suggests a range of policy recommendations. First, it proposes the adoption of guidelines concerning the rights of civil society actors in the context of European and Member State border control operations and the fight against smuggling. Second, it calls for the independent monitoring of the acts carried out against humanitarian actors and human rights defenders of migrants. Within the contemporary rise of populist movements and authoritarian tactics throughout Europe, protecting the independence and freedom of all civil society must be a priority.

Finally, it calls for EU institutions to revise the Facilitation Directive in order to bring it in line with the definition of migrant smuggling elaborated in the UN Convention on Transnational Organised Crime, which requires the existence of financial or other material benefit. The EU should further make the humanitarian exemption clause mandatory alongside a clear definition of what exactly counts as humanitarian assistance.

Investigating and prosecuting humanitarians for migrant smuggling is only one of the ways in which people helping migrants and refugees in Europe have been targeted. Various reports indicate widespread police harassment of volunteers, activists and humanitarian aid workers occurring in countries such as France, Greece, Italy and Croatia. While search and rescue NGOs have faced many accusations and charges related to human smuggling, bureaucratic and administrative sanctions have been at least as successful in hindering their work, for example in the cases of Mission Lifeline, and Sea Watch’s Moonbird plane and Sea-Watch 3 ship. Laws unrelated to the Facilitation Directive have also been used to criminalise pro-migrant civil society actors, as seen in the Stansted 15’s terrorism-related conviction in the UK, Loan Torondel’s conviction for criminal defamation in France, and Hungary’s Stop Soros law.

The widespread targeting of people and organisations helping migrants and refugees in Europe is a very concerning practice. It not only further limits the already scarce sources of support available to migrants and refugees, it is an attack on the freedom of civil society, a foundation of liberal democracy. While the prosecution of humanitarians for migrant smuggling is only one part of a bigger picture, a reform of the Facilitation Directive which decisively prevents this method of criminalisation would send a clear message to European authorities: that saving lives and protecting the fundamental human rights of others must not be criminalised.

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.

__________   

How to cite this blog post (Harvard style) 

Schack, L. (2020). Humanitarian Smugglers? The EU Facilitation Directive and the Criminalisation of Civil Society. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/07/humanitarian [date]