Anyone who helps migrants is made a criminal

It costs him “a lot of time, energy and money”. Ever since he captained a rescue ship in Italian waters in 2016 and 2017, Dariush Beigui has been prosecuted for helping migrants. In the last three months of 2022, he had to appear six times in Trapani, the Sicilian city where the preliminary hearings were held, he told the InfoMigrant news site.

Like Beigui, there are hundreds of others in Europe: rescue workers who are persecuted for helping migrants. Last week, the trial continued against 24 aid workers for refugees on the Greek island of Lesbos, including Dutchman Pieter Wittenberg.

Their cases raise the question of what you can do to help a migrant without risking ending up in prison. Can you provide food? Water? Medical supplies? Shelter?

This is not a difficult question in theory. These include a number of human rights, including the right to life, the right to be free from inhuman and degrading treatment and the right to health, food, water, sanitation and an adequate standard of living. And according to the Universal Declaration of Human Rights, it is the responsibility of “every individual and every organ of society” to strive to implement these rights.

So much for the theory. In practice, civil society organizations increasingly report that all of the above activities, including the provision of water, are criminalized by governments worldwide.

The UN rapporteur on the human rights of migrants, the Chilean professor of international law Felipe González Morales, emphasizes that “a poisonous narrative has taken root in many countries” around aid to migrants. According to the rapporteur, these ‘smear campaigns’ have created a hostile environment for groups providing services to migrants.

According to the ‘toxic’ story, migrants would not think of coming to Europe if they knew they would not receive help. People helping them would therefore not so much save people in need with their activities, but facilitate the arrival of additional migrants. By making assistance to migrants a criminal offence, politicians ultimately want to limit migration.

Prosecuting aid workers is not without danger, notes the Council of Europe’s human rights commissioner. Governments’ “overtly or tacitly hostile approach” towards NGOs “leads to further reductions in rescue capacity at sea and restrictions on human rights monitoring”. The Commissioner therefore advises Member States to refrain from “misusing criminal and administrative procedures and technical requirements simply to hinder the life-saving work of NGOs”.

No legal basis

Politicians who want to prosecute migrant helpers run into a problem: there is often no legal basis for doing so. This was illustrated again this month in Greece. The retired Dutch banker Pieter Wittenberg, the Syrian swimmer Sarah Mardini – known from the Netflix documentary The swimmers – and more than twenty others who had come to Lesvos to help refugees are no longer being prosecuted for espionage, it emerged earlier this month. The suspicions of human trafficking and participation in a criminal organization still remain.

Also read: Can Italy turn away NGO boats or selected boat migrants?

Rescue workers are also being prosecuted for helping migrants in Italy, among others. This has never resulted in a conviction; the German captain of an NGO boat Carola Rackete, a favorite target of the Italian authorities, also remained unpunished.

The argument for prosecution is often that aid workers contribute to human trafficking. But international treaties make a crucial distinction between smuggling people and helping migrants. The difference lies in whether money is made from it.

The United Nations’ ‘Protocol against Smuggling of Migrants by Land, Sea and Air’, also known as the Smuggling Protocol, allows for the ‘humanitarian exception’: actions taken by those acting out of humanitarian concern for migrants, rather than economic or material gain, are not punishable.

This sounds like an undeniable criterion that should clearly distinguish smugglers from aid workers. Still, there is a lot of confusion about it in practice, says Thea Naes Rabe, who is doing a PhD in sociology at Nord University in the Norwegian city of Bodø. “Governments sometimes still use anti-trafficking laws to prosecute aid workers.”

Rabe researched Norwegians, Danes and Germans who provided assistance to asylum seekers who had exhausted all legal remedies, who should really be put on a plane back to their homeland. If you help them, she says, you end up in a legal gray zone. “But many of their helpers said to me, ‘I have to help them because no one else will’.”

The German captain of an NGO boat Carola Rackete was prosecuted in Italy for ‘encouraging illegal immigration’ after she rescued refugees at sea and brought them to Italy. It did not lead to a conviction: according to the judge, she had acted “in accordance with national and international maritime law”.
Photo Maja Hitij/EPA

In 2019, a case was brought in Norway against a well-known retired bishop who is also a former member of the Norwegian Nobel Committee, which awards the Nobel Peace Prize. Gunnar Stålsett, then 84, often described as ‘Norway’s moral compass’, helped a failed asylum seeker from Eritrea by giving her work: she cleaned his house for a fee. Rabe says he did this out of Christian conviction: if he didn’t help her, she would be a beggar, and the right to dignity is a human right. “But the Norwegian authorities believed that it benefits a migrant financially.”

In interviews, Stålsett talked openly about his civil disobedience. “If it comes to prison, I want to accept the sentence, because I have fulfilled my Christian duty.” The retired bishop was finally told on Christmas Eve 2019 that he would have to spend 45 days on probation and pay a fine of 10,000 Norwegian kroner (almost 1,000 euros).

Frightening effect

The criminalization of the aid workers’ behavior has a deterrent effect and also undermines the rights of the migrants themselves, says the International Commission of Jurists, an NGO of lawyers who defend human rights. “It deprives them of vital support and is likely to increase their marginalisation, increase the risk of exploitation and hinder their access to justice.”

This deterrent effect is undoubtedly a political objective. Governments, says the Norwegian researcher Thea Rabe, are not so quick to say that migration as such should be a criminal offence. “What they are saying is that action must be taken against human traffickers, a term which they then interpret very broadly. They hope this sends a signal to future migrants. I don’t think that’s how it works: migrants will keep coming, whether they can expect help or not.”

An analysis of last year’s migration figures seems to support this claim. Large numbers of asylum seekers are driven to flee by global conflicts, insecurity, inflation and climate change. That ‘push factor’ is more decisive than whether they can expect help. However, many migrants were attracted by Serbia’s generous visa policy, from where they crossed the border into the EU.

This criminalization is the result of the misuse of criminal law to promote anti-immigrant policies

Melina Duarte moral philosopher

According to Melina Duarte, lecturer in political and moral philosophy at the University of Tromsø, discouraging aid workers is even counterproductive. In her paper The ethical consequences of criminalizing solidarity in the EU she argues that it leads to a less free, secure and fair EU due to its negative effects on the legitimacy of power, democracy, the rule of law, fundamental rights and social trust in general. Cohesion in the EU depends on a sense of solidarity, says Duarte in an explanation for his paper. “The criminalization of helping migrants corrupts this feeling.”

What makes the situation even more poignant, according to the philosopher, is that NGOs often fill the gaps left by states in providing aid to those in need. States should provide that help themselves, according to Duarte – let alone criminalize their own alternative.

Also read: Asylum seekers flee from conflict and are attracted by visas

Many aid workers say the criminalization of their activities will not stop them. The Norwegians, Danes and Germans whom researcher Rabe interviewed often referred to their Christian motives, and so did ex-bishop Stålsett. Christians, says Rabe, often think, “What would Jesus do?” “This is more important to them than the law. Jesus was a rebel. What is legally right does not always feel morally right to them.”

Intimidation, says philosopher Duarte, seems to weigh much less on aid workers when it comes to saving lives. “In my opinion, helpers do not become criminals because acts of solidarity are made punishable. This criminalization is the result of the misuse of criminal law to promote anti-immigrant policies. I think it is important for them to know that there are others who do not judge their actions’.

It is striking that morally convinced aid workers sometimes even compare their situation to World War II. For example, in Rabe’s study: “Norwegian police sometimes lift migrants from their beds at four in the morning to put them on a plane. Like raids, the aid workers say.”

And the aid worker Pieter Wittenberg, who was prosecuted in Greece, also makes the analogy. he said on Sunday Buitenhof that he cannot stop the rescue work. “My father fled Czechoslovakia in ’39, from Hitler. Jewish, had an address in Amsterdam where he could go. There were lovely people who took care of him. Because they helped him through the war, fortunately I was born in the Netherlands. And I think I can pay back part of that bill now, and I’m happy about that.’

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