Stymieing Humanity – On the Prosecution of Aid to Migrants

Opinio Juris

Six United Nations Special Rapporteurs released a statement last week, urging the dropping of charges against an American aid worker for aiding migrants in the Arizona desert. A day later, I read an op-ed on the increased criminalization of humanitarian aid in the European context. While this issue seems to be the subject of increased scrutiny lately, there have been multiple prosecutions in the U.S. and Europe over the past few years. 

A recent study by openDemocracy has ascertained a “sharp increase” in the number of prosecutions in Europe since 2018, with the most number taking place in Italy, Greece, France, the UK, Germany, Denmark and Spain. Those targeted for prosecution include pastors in Switzerland, boat captains in Spain, Italy and Greece, as well as pensioners penalized for providing a lift to migrants in Denmark and Greece. In the U.S., following the European lead, there seems to be a trend of an increase in arrests and prosecutions in 2018. 

International law – Begone!

Broadly speaking, there are two contexts in which the prosecutions are taking place – the first relate to land borders, and the second in relation to rescues at sea. In both sets of cases, there is a blatant disregard for international law obligations that states have signed up to. There is a fundamental disregard of the core human rights norms and instruments – including the ICCPR, ECHR – which most of these states are signatories to, in addition to violating the laws and customs at sea in the latter set of cases. 

It is noteworthy that prosecutions have taken place under a myriad set of laws – from human trafficking and anti-smuggling laws, to defamation, perverting the course of justice, and facilitating illegal migration, to name a few. To be clear, humanitarian workers (providing aid as part of an organization), as well as those who are impelled to help in a purely personal capacity or as volunteers, are all being targeted for prosecution.

The phrase ‘criminalization of solidarity’ – while seemingly overused – is perhaps the most apt to describe the prosecutions of humanitarian aid. The French constitutional court has ruled that this could not be subject to prosecution. However, authorities have found other provisions and means to continue with prosecutions and harassment of those that provide aid to migrants. For a detailed assessment of the French legal environment, more in this Amnesty report released last week. In the U.S., the case of Scott Warren – the subject of the latest UN Rapporteurs statement – include the charges of harbouring migrants and conspiring to transport migrants, under federal immigration law.    

The efforts to criminalize rescues at sea are another example of the environment within which humanitarian aid providers work and are an egregious example of the flouting of international law treaty obligations as well as customary law. As an example, Article 98 of UNCLOS provides the obligation to rescue persons in distress and to provide search and rescue facilities. The latest case is that of German boat captain Pia Klemp, who is being prosecuted by the Italian authorities for rescuing migrants in the Mediterranean. Klemp’s boat, Sea-Watch 3 has been the subject of interim measures of protection by the European Court of Human Rights, in relation to the fate of 47 migrants on board. This however does not relate to her prosecution, which she has also vowed to fight before the European court. 

In the legal context, an aspect worth exploring further is the role of Good Samaritan laws – which are present in many jurisdictions in Europe – and which in fact criminalize the lack of provision of aid or assistance by a bystander. Do these only apply in the case of citizens who need help, and not migrants? Could these provisions be used to argue against the criminalization of aid? A matter for further domestic and comparative research potentially. 

Consequences and Costs 

It is against this backdrop that a communication was transmitted to the International Criminal Court Prosecutor last week, in relation to migrants repatriated at sea and detained in Libya. It is argued that the ‘deterrence’ policy – Triton – pursued by the European Union resulted in crimes against humanity. While not delving into details of the communication in this post, it is relevant to point out that the arguments also focus on the key role of NGOs in search and rescue operations, as well as the impact of criminalization and prosecution (pages 46 – 63 of the communication). The arguments relate to not only criminalization of aid at sea, but also the policy of cease and desist orders for rescues – both of which arguably go hand in hand to create an environment resulting in more deaths. This communication is another instance – after the Rohingya deportation case at the ICC – pointing towards the potential for humanitarian crises to find their way into international courts. 

Some states are at pains to point out that the prosecutions are typically for a host of other infractions, and not for the provision of aid – while others are more blatant about their objectives such as in Italy – but the end result regardless, is the stymieing of action and the escalation of risks in relation to the provision of aid, whether as a volunteer or as an aid worker. The book is being thrown at those who provide aid or any form of assistance – and the consequences include hefty fines, impounding of boats, lengthy jail terms, steep legal costs of cases, and other longer-term impacts.

Equally sinister consequences include the ceding of any (purported) moral authority by the U.S. and European states on rights issues – something that will be seized on with glee by many – as well as the escalation and adoption of anti-migrant rhetoric and laws, drawing from these terrible examples.   

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