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 distinguishes brute forms of raw power from exercises of valid rule. Different theoretical accounts put the accent on different aspects of this transformation.

The emphasis can be on the sources of legitimacy, typically consent, manifested by political participation and deliberation of those affected by the decisions to be adopted. This is usually called ‘input legitimacy’ and is tightly related to the demos as the ultimate source of authority in any democratically organised political system and its capacity to shape and determine common decisions. Ideals of government by the people encapsulate this approach.

When the focus is instead on the results of common decisions, the discussion centres, instead, on ‘output legitimacy’. The principle of utility, concerned with the maximisation of happiness/effectiveness, features significantly here. The validity of decisions revolves around the quality of ensuing outcomes and whether they entail efficiency gains, epistemic advantages, materially beneficial consequences, or some other (perceived) improvements for the lives of those governed that ‘cater to the public interest’. On several versions of this account, the laws enacted must be such that all reasonable individuals could have agreed to them (or, at least, not reasonably opposed them) and align with shared moral principles.

A third group of legitimacy theories emphasises process. Government with the people — rather than by or for the people — becomes prominent. Legitimacy then depends on the procedural steps foreseen for democratic decision-making. The stress is placed on ‘throughput legitimacy’ and the fairness of the decision-making arrangements in terms of their ‘accountability, transparency, inclusiveness and openness’.

The most comprehensive accounts highlight the complementarity of these components and their mutual reinforcement. Legitimacy, on this reading, depends on political participation in the processes of deliberation and justification of democratic decisions adopted on fair procedural arrangements that ensure the substantive quality of the results they generate.

But in all these cases, legitimacy operates linearly (from input to throughput to output) and within a closed circuit, focused exclusively on the citizens of a State as the basic unit of political organisation. What matters is that their interests are fairly represented in political institutions, fairly articulated through political processes, and fairly reflected in the final outcomes. Legitimacy in this way becomes a self-referential system of justification of coercive power: by the citizens, with the citizens, and for the citizens. It ignores the cross-border impacts and trans-national interconnections of today’s globalised world, in particular the foreseeably harmful effects of democratic decisions on non-citizens.

Yet, as they are ultimately subjected to EU/State authority, a preferable conception of legitimacy would demand that their position, and the impact of envisaged decisions on their human rights, be considered in the democratic decision-making process. Such a ‘reviewput legitimacy’ requirement would dictate that political entities (including the EU) evaluate the consequences and personal and material repercussions of intended decisions beyond the bounds of the polity. What is more, it necessitates that, as part of the deliberative process, the appraisal of projected laws/policies be committed to upholding human rights as core democratic foundations and take knowledge of (occurrent or dispositional) harm to ‘others’ into account.

Because ‘reviewput legitimacy’ requires the observance of universal obligations of mutual respect (especially those already positivised in existing legal norms), it serves to foreclose democratic decisions — particularly in the face of viable alternatives — that (expectedly) produce harm to non-citizens and to constitutional values, in violation of pre-existing human rights commitments. This, in turn, prevents the de-subjectification of ‘outsiders’ in a way that treats them like objects of regulation, denying (full) personhood and basic dignity standards.

The Abuse

Insofar as the EU is ‘a community based on the rule of law’ (Les Verts, §23) that respects human dignity and human rights (Arts 2 & 6 TEU), including in its interactions with the wider world (Art 21 TEU), the human rights impact of its decisions constitutes a legitimacy constraint that cannot be eluded. In the context of the Facilitators Package reform, this means that provisions likely to (continue) curtailing the rights of civil society organisations, impeding them to act as human rights defenders, indirectly negating the rights of third-country nationals, cannot be justified. A ‘reviewput legitimacy’ assessment should lead the legislator to take existing concerns, ascertainable from a wide array of publicly available sources, seriously and in good faith. Definitional problems with solidarity crimes are well known and vastly documented, including by the Commission itself (p. 9, Recast Proposal). Overcriminalisation is a fact, and is incompatible with human dignity, fundamental rights, and the legitimacy principle underpinning democratic systems (Art 2 TEU).

Civil society actors are the ones upholding the norms and values the EU/Member States are bound by (Arts 2, 6 & 21 TEU), acting as the true guardians of the Treaties. They are undertaking acts of ‘civil obedience’ (rather than disobedience); of allegiance to the legal order and the hierarchy of sources as is. In the process, they are performatively revealing the failure of public authorities to fulfil their (existing) moral-become-legal duties. Those in defiance of the system are (shown to be) the Member States (with the Union’s complicity). They are the ones relying on their own wrongdoing, on their own failure to comply with third-country national rights as recognised in the Treaties (Art 67 TFEU), to generate a hostile environment for irregular migrants and those who stand in solidarity with them. They are using the vague text of the facilitation definition to camouflage the(ir) violation of EU primary norms and international standards.

Definitional ambiguity cannot be exploited to favour migration control at all costs, simultaneously undoing the protections third-country nationals derive from EU law. According to settled case-law, ‘there is a general principle that EU law cannot be relied on for abusive … ends’ (Commission v. Hungary, §111). The Union and its Member States cannot use their powers to subvert the legal order, placing EU legislation above constitutional requirements, international obligations, and universal moral commitments. ‘State disobedience’ of this kind is not admissible.

There are legitimacy limits to solidarity crimes.