Civil society has always been the first responder to humanitarian emergencies. For decades, fishermen, lawyers, and people living in the southern European coast have been rescuing and supporting migrants, replacing the often non-existing government structure.
While those in the frontline of the refugee crisis on the Greek island of Lesvos are being honored with a nomination for the Nobel Peace Prize, the EU and its member states are moving in the opposite direction, placing a strain on civil society. The Draft Council Conclusions of 26 January 2016, drawing on the policy guidelines of the EU Agenda on Migration, place the emphasis on migrant smuggling and call for higher penalties and the intensification of law enforcement, close surveillance of social media, and the participation of NGOs in investigations into migrant smuggling.
Most importantly, the Council equates smuggling with trafficking. The ground for this proposal has been prepared in the previous months with the lines between the two being intentionally blurred in the media and the mainstream political discourse. In fact, what the two crimes have in common is the element of irregular border crossing, a feature that is only sometimes present in human trafficking. However, according to the Glossary on Migration of the International Organization for Migration (IOM): ‘Smuggling, contrary to trafficking, does not require an element of exploitation, coercion, or violation of human rights.’ This follows the definition of the UN Protocol against the smuggling of migrants, constituting trafficking a quite different crime in both means and impact on the individual.
In the preamble of the Draft Council Conclusions, the Council acknowledges the distinction between the two crimes in international law. However, it considers them as one, for the reason that ‘both forms of crime can be often interlinked,’ and that ‘migrant smuggling has become an increasingly violent form of crime, often involving serious physical or psychological violence and human rights abuse.’ Current EU legislation and practice are already in contradiction to the UN Smuggling Protocol, which requires the punishment of the facilitation of irregular entry only when done with the purpose to obtain financial or other material benefit, hence exempting those who provide assistance for the sake of humanity and community. Contrary to international law, the relevant EU legislation, the EU Facilitation Directive (2002), leaves this ‘humanitarian exception’ in the discretion of the Member States (Article 1(2)). In its 2014 survey on the criminalization of migrants and persons engaging with them, the Fundamental Rights Agency (FRA) found that only four out of the 28 member states (Germany, Ireland, Luxemburg, and Portugal) punish facilitation only in cases in which it’s done for profit, while only a few more states have included limited exceptions in their legislation.
The existing regime already leaves a significant gap in protection and the Draft Council Conclusions make no mention of a humanitarian exception. In this context, the elevation of the crime of smuggling to the level of human trafficking, and the intensification of law enforcement, are expected to have severe consequences on the humanitarian response of civil society.
The newly acquired focus of the EU policy on targeting smuggling networks has been heavily criticized on the basis of the scapegoating effect it produces, since it fails to address the root causes of migration. Moreover, according to the teachings of criminology, increasing the severity of punishment is an ineffective deterrent to crime. Restrictive legislation, however, as well as enhanced surveillance and law enforcement have a strong deterrent effect on citizen participation.
Other EU plans, according to Statewatch, involve the registration with the authorities of all NGOs and volunteers, and the close control of their activities. The relevant guidelines set in the Commission Progress Report on the Implementation of the hotspots in Greece in December 2015 already led to the adoption of new legislation in Greece, published two days after the Draft Council Conclusions, which provides for the control and close monitoring of NGOs and volunteers operating on the island of Lesvos. In particular, the new law provides for the ‘registration, identification and certification’ of all non-governmental actors providing assistance, as well as for the ‘evaluation, prior approval of’ and the ‘continuous coordination and control of their actions.’
The new legislation has been presented in the national press, disconnected from its EU policy background, as a response to complaints concerning lack of coordination among volunteers, responsibilities overlap, management problems, and competition among NGOs. However, the stated goal of the Draft Council Conclusions isn’t facilitating reception, but ‘preventing and countering migrant smuggling.’ Additionally, in the Commission Progress Report, the measure is covered under Title I concerning the efficiency of ‘hotspots’ that operate in the context of Dublin and return procedures, rather than under Title V, ‘Reception Capacity.’ Such onerous regulatory and monitoring requirements contribute to shrinking space for NGOs and are expected to intimidate and discourage local volunteers.
Although, it is accepted that coordination problems exist when operating in circumstances of extreme urgency, two of the Nobel prize nominees, the self-organized solidarity structures Horio tou Oloi Mazi and Platanos Refugee Solidarity, have already publicly expressed their disapproval and see the measure as a deterrent for volunteers and a crackdown on aid.
Furthermore, law enforcement has been intensified in the island following the Draft Council Conclusions. As the solidarity structures and NGOs report, emergency structures are being fined for constructions that have been made without permission, lifeguards and fishermen are being prosecuted for aiding illegal entry, and camps are being forcefully evicted.
These developments at the national and at the EU policy levels fit, according to the 2015 State of Civil Society Report, an international culture of limitations, restrictions, and harassment of civil society, where even democratic states are rolling back in their own human rights standards, which more and more often are advocated to be obstacles for security and public order. And while enabling conditions for civil society should be promoted and the community humanitarian work is in need of state support, volunteers are instead exposed to restrictions and the risk of punishment.
Statewatch has adopted a very critical stance on the issue from the perspective of freedom of participation in the commons and freedom of expression and action. The Council of Europe, in its Recommendation on the legal status of NGOs and its Explanatory Memorandum, where it sets out the ground rules to ensure the independence of NGOs and their political participation in a democratic society, makes clear that ‘there should be no attempts by public authorities to make NGOs effectively agencies working under their control.’
From a legal perspective, national legislation and EU policy as it stands today fails to abide by the international obligation to exempt humanitarian assistance from punishment. It may also undermine respect for Article 31 of the Refugee Convention, which excludes penalization of refugees for irregular entry, and may result in violations of the ECHR and the EU Charter of Fundamental Rights. In order to ensure fundamental rights compliance, the emphasis in law and policy should be put on rescuing people in distress at sea and improving reception conditions, while NGOs and independent volunteers should be protected from overzealous surveillance and penalization.
Guest post by Mariana Gkliati, PhD researcher at the Institute of Immigration Law, Leiden University. Her doctoral research focuses on the effective legal protection of individuals against human rights violations in the area of asylum and immigration attributed to EU agencies, in particular Frontex.