Solidarity Crimes, Legitimacy Limits

The criminalisation of humanitarianism has become pervasive in the EU over the last two decades. Overbroad definitions of the crimes of facilitation of irregular entry, transit and stay produce well known noxious effects on the human rights of migrants and civil society organisations. Nevertheless, the tendency has been to tighten the rules rather than contesting the EU’s failure to pursue a migration control system that is ‘fair towards third-country nationals’ and constructed ‘with respect for fundamental rights’ (Art 67 TFEU). The Commission is in fact currently considering a reform that risks exacerbating the overcriminalization trend. The process normalises hostility and ignores that what human rights defenders do is not only morally laudable, harmless and blameless conduct, but also aligns with the founding principles of the EU (Art 2 TEU); their interventions are examples of ‘civil obedience’ and adherence to the constitutional framework provided for by the Treaties.

In this blogpost, I argue that the EU legislator’s disregard for the human rights impacts of the facilitation regime constitutes an abuse of power. Legislative measures that have the effect of subverting legally enshrined principles (Arts 2, 6 & 21 TEU) and suppress the rights of civil society and the migrants with whom they engage are incompatible with core democratic premises.

The Context

Seán Binder and Sarah Mardini have recently been acquitted of several extravagant charges for their volunteer work in Lesvos rescuing ‘boat migrants’, but they still potentially face additional criminalisation for facilitating irregular entry. Their story is not uncommon. The provision of humanitarian assistance at the EU’s external borders has become a risky business, with a notable increase in prosecutions since the ‘refugee crisis’.

Although many human rights defenders are eventually released, trial processes are in themselves punitive and have a chilling effect. Jugend Rettet, for example, has not been able to operate since the preventive seizure of their vessel in 2017. The IUVENTA crew, for their part, have been charged with several counts of smuggling. Their trial is ongoing. It has stalled several times in what appears to be a delaying tactic of the Italian authorities. In these cases, the punishment is in the prosecution that puts organisations out of the game.

Many other instances of criminalisation (broadly understood) go unreported. Acts of administrative repression, hostile rhetoric, surveillance, harassment, threats, and violence have become routine in the everyday encounters of NGOs and individuals engaging with third-country nationals with Member State authorities across the EU. The offices of KISA, a migrant support group in Cyprus, were literally bombed in early January 2024, in an apparent xenophobic attack that remains to be fully investigated. This adds to other famous cases involving activists Cédric Herrou, initially convicted for assisting asylum seekers cross the Roya valley at the French-Italian border, who were lost and would otherwise have perished in the Alpes, or Carola Rackete, the captain of the Sea-Watch 3, who contravened orders and entered port in Italy to disembark the survivors of a shipwreck in urgent need of medical attention.

The conflation of humanitarian action with the crime of migrant smuggling that underpins these cases is enabled by the laws in operation at both the domestic and EU level, in particular the Facilitation Directive.

The Law

Adopted in the pre-Lisbon era, the Facilitation Directive 2002/90/EC and its accompanying Framework Decision 2002/946/JHA aim to ‘combat’ ‘illegal immigration’. To maximise their effect, the definitional elements of the transnational crime of migrant smuggling, as formulated at UN level, have not been retained. Contrary to the UN Smuggling Protocol (Art 3), merely assisting a person to enter/stay within the territory of a Member State without authorisation through whatever means, whichever the purpose, with or without the intermediation of a financial or other material benefit, suffices for criminalisation under EU law (Art 1(1)(a), Facilitation Directive). The requisite of a financial gain is only necessary for the crime of facilitation of irregular residence (Art 1(1)(b), Facilitation Directive). This means that there is no distinction between abusive or exploitative action and action engaged in for humanitarian or solidaristic reasons. Even mere ‘attempts’, ‘instigation’ or ‘participation’ in the acts concerned attract criminalisation (Art 2, Facilitation Directive).

The risk of overcriminalisation has not been averted by the optional provision in Art 1(2) of the Facilitation Directive. That ‘[a]ny Member State may decide not to impose sanctions with regard to … cases where the aim of the behaviour is to provide humanitarian assistance’ does not constitute a proper exoneration clause. It does not preclude criminalisation, it is not a bar to prosecution, and its optional nature leads to uneven interpretations across the Union.

The Commission Guidance on the interpretation of the Facilitation Directive has not stopped the overcriminalisation trend either. It recommends Member States to exclude from criminalisation only ‘humanitarian assistance that is mandated by law’ (§4(i)), without defining the term or specifying when it should be considered ‘mandated by law’. It also states that ‘the criminalisation of NGOs … that carry out search and rescue [SAR] operations at sea … amounts to a breach of international law and therefore is not permitted by EU law’, but only when operations are conducted ‘while complying with the relevant legal framework’ (§4(ii)), leaving ample margin for speculation. Quite controversially, the Guidance also contends that ‘[e]veryone involved in [SAR] activities must observe the instructions received from the coordinating authority when intervening in [SAR] events’ (p. 7), disregarding recent incidents involving the Libyan Coastguard contravening the right to life and the principle of non-refoulement. The only concrete exhortation is to ‘invite’ Member States ‘to use the possibility provided for in Article 1(2) of the Facilitation Directive’ (p. 8), leaving current practices untouched.

Unless the Kinshasa ruling intervenes, the proposed legislative reform of November 2023 will make matters even worse. Therein, profit remains excluded from the definitional elements of the baseline crime in certain respects or is given such a capacious meaning that it does nothing to limit overcriminalisation. Facilitation of irregular entry/transit/stay constitutes a criminal offence where the perpetrator ‘requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit’ (Art 3(1)(a)). This could feasibly encompass the provision of legal assistance for a fee, rendering rescue or medical services on a salaried basis, or on receipt of donations for the sustenance of the NGOs’ independent functioning. The offence is also committed where ‘there is a high likelihood of causing serious harm’ or if it amounts to ‘publicly instigating third-country nationals to enter [irregularly]’, with or without the intermediation of profit (Arts 3(1)(b) and 3(2)), which could serve to criminalise both maritime SAR and similar initiatives on land (e.g. across the Alps or at the EU-Belarus border).

The Commission is well aware that the ‘broad definition of the offence and the absence of exemptions’ are the main flaws of the existing legislation (p. 3, Recast Proposal). Yet, there is no exoneration clause in the proposed reform. Instead, the optional proviso in current Art 1(2) has been erased, with the proposed text adding further ambiguity. While ‘it is not the purpose of this Directive to criminalise … humanitarian assistance’, this is only if it is ‘provided … in compliance with legal obligations’ (Recital 7, Recast Proposal), which ignores that NGOs generally step in uninvited to deliver services that are absent, insufficient, or deliberately withdrawn by States. Thus, it is unclear under which circumstances — outside the SAR domain  — there may be a legal requirement to deliver humanitarian assistance so that it can be considered as ‘provided … in compliance with legal obligations’ (Recital 7, Recast Proposal).

Can the EU and its Member States freely decide what actions to criminalise?

Is this how legitimacy works?

The Limit

I would like to argue that there are legitimacy-based limits on the EU’s legislators democratic decision-making power when it comes to the criminalisation of humanitarian conduct. Legitimacy tends to be associated with the justification of (coercive) power and political authority, acting as a benchmark of (moral/legal/political) acceptability. It is what distingu