From the Greek Islands and the mountains of southern France to Denmark, people who have helped migrants, offered them food or shelter, or rescued them from drowning are facing legal sanctions. One of the problems is that that there is no common concept of what humanitarian assistance is and how it may be applied.
In May, three Spanish firefighters are due to appear in court in Greece. The charge: Illegal transportation of persons without administrative permission to enter Greek territory. If convicted, they risk up to ten years in prison.
The three men were on holiday in the winter of 2015 when they signed up as volunteers with the aid organization ProemAid on the Greek island of Lesbos, to help with sea rescues. One night in January, the Greek coast watch apprehended them and took them into custody, where they spent the next three days. Although there were no migrants on board their boat that night, the three men were charged by Greek authorities with attempted human smuggling. They were also accused of possession of weapons, because they had a wire cutter among their rescue equipment.
One of the men, Manuel Blanco, has described the situation as “surreal”. “We just did what we do best: saving lives. And we didn’t take a single cent for what we did,” Blanco told ARD television. Ahead of the trial in Lesbos on May 7, Blanco has been in Brussels trying to get support from Spanish MEPs.
Heroes or criminals
Across Europe there are many similar cases in which aid workers have been charged, and in some cases found guilty of smuggling for providing assistance to people both at sea and inland.
This week, Italian authorities began investigations into the activities of three people working with Proactiva Open Arms, a Spanish aid group which does migrant search and rescue operations in the central Mediterranean. They seized the ship and accused the crew members of criminal association for the purposes of illegal immigration.
In September, Lisa Bosia Mirra, a socialist party MP in Switzerland’s Ticino region on the Italian border, was fined more than 7,000 euros and given a suspended two-year sentence for helping four African children cross the border.
In France, farmer and activist Cedric Herrou supports migrants who enter on foot from Italy and pass through his village of Breil-Sur-Roya. After being convicted of helping migrants enter France, Herrou declared outside the court, “If we have to break the law to help people, let’s do it.”
Policing aid workers
Many individuals and groups helping refugees and migrants do not face prosecution. But a major study led by Professor Sergio Carrera from the Centre for European Policy Studies has confirmed that other forms of criminalizing or “policing” refugee aid workers are having serious consequences for NGOs.
“We have seen claims that some NGO representatives are actually cooperating with smugglers, when there is no evidence. Because of such accusations being made, some of the funding to these organizations has been cut,” Carrera says. In some cases, he adds, aid workers have been denied access to migrants held in camps or in detention.
What help can be given to migrants without any legal risk? The problem is, there is no clear answer. A number of different laws have been used across various jurisdictions to charge citizens, including breaching health and safety regulations to those distributing food, and violating public space to those erecting shelters against weather. As a result, people offering humanitarian assistance or rescuing migrants in the EU cannot be sure whether their actions are legal or potentially criminal.
The European Commission’s Office of Migration and Home Affairs told InfoMigrants that “EU law does not criminalize humanitarian assistance to vulnerable migrants in distress, it seeks to ensure that appropriate criminal sanctions are in place for cases of smuggling and facilitating, including for financial gains, whilst avoiding risks of criminalisation of those who provide humanitarian assistance to migrants in distress."
What many see as a problem is that EU law leaves it up to the member states whether they choose to exempt humanitarian assistance from criminalization. Paula Schmid Porras, the main attorney for the three Spanish firefighters, has petitioned the European Parliament to change this law because it “does not provide a definition of the concept of humanitarian assistance, leaving considerable discretion to Member States as to the definition, scope and application.”
Schmid says the European Commission is politically influenced by the European Council, which includes anti-immigration countries like Hungary, Poland and Austria. “The problem is that the EU Commission doesn’t want to acknowledge that there is a problem,” Schmid says. Despite the European Commission’s position, NGOs have been heavily criticized by politicians and others for their interactions with migrant smugglers. In 2016, the Financial Times reported that the EU’s border agency, Frontex, had accused charities of “colluding” with smugglers – that report was subsequently retracted, and Frontex confirmed to InfoMigrants that the agency had never made such a claim. Still, the false report prompted fierce debate about the role of humanitarian actors in the Mediterranean.
Filling the gaps and the “pull factor”
Lorenzo Pezzani co-founder of the Forensic Oceanography project and the WatchTheMed platform calls this “toxic narrative” a convenient distraction. He says the question that should be asked is: “why is there such a gap in search-and-rescue” activities in the first place that makes NGO rescues so essential?” Sophie Beau of the rescue charity SOS Mediterranee told The Independent newspaper that NGOs are being forced to act by the “failure of European states” which should instead be increasing capacity themselves.
Aid workers who help and rescue migrants have also been accused of creating a so-called “pull factor” encouraging hundreds of thousands of people to leave their homes and make the journey across the Mediterranean to Europe. But for Sergio Carrera, respect for democracy and human rights should not be termed pull factors. “That people are actually entitled to rights, to say that this is a pull factor is in direct contradiction to Europe’s values.”