Rachel Landry, Fellow for Refugee Policy, Center on National Security, Fordham Law School
One night in January 2016, Salam Aldeen, co-founder of the volunteer rescue organization Team Humanity, received a call about boats in distress near Greece. This was a regular occurrence for Aldeen, who had assisted thousands of refugees on almost 200 boats since 2015. As usual, he notified the Greek coast guard of his rescue mission. However, this time, Aldeen and his four fellow volunteers never made it to the refugees.
A military ship approached their rescue vessel aggressively, forcing them to return to shore. Before they could reach land, they were intercepted and detained by two military vessels and the Greek coast guard, who also seized their boat. Their supposed crime was human smuggling, though they were merely trying to help people in need. While Aldeen was eventually freed on bail, he cannot depart Greece, has to check in with the authorities weekly, and is facing trial and a potential ten-year prison sentence.
Aldeen and his team’s arrest highlights a disturbing trend: the EU’s crackdown on human smuggling during the current refugee crisis risks criminalizing humanitarian aid. Although the European Commission (EC) acknowledges the importance of not prosecuting those providing aid to migrants in distress, the actions of individual member states often contradict this.
The EC is currently revising the Council Directive 2002/90/EC to improve the EU’s legal framework for tackling migrant smuggling. This directive, also known as the Facilitation Directive, defines the act of facilitating unauthorized entry, transit, and residence, and governs human smuggling alongside other activities aiding irregular migrants. This review presents a crucial opportunity to re-evaluate how we define and address human smuggling, especially differentiating between reprehensible smuggling and commendable “humanitarian smuggling.”
To initiate this discussion, here are five key observations derived from my recent research with the Refugee Studies Centre, titled “The ‘humanitarian smuggling’ of refugees: Criminal offence or moral obligation?”
1. Criminalizing humanitarian acts alongside human smuggling aims to deter and control irregular migration.
The EU is using various methods to prevent refugees and migrants from reaching its member states. These include United Nations Security Council Resolutions allowing EU forces to intercept suspected smuggling vessels near Libya, deploying NATO warships in the Aegean Sea, and the EU-Turkey deal to return those arriving irregularly back to Turkey. Rather than being isolated incidents, these policies of deterrence and securitization are deeply embedded in EU law concerning irregular migrants and those who assist them.
The Facilitation Directive primarily focuses on preventing irregular migration. As stated in its opening paragraph, one of the EU’s objectives is to gradually establish an area of freedom, security, and justice, which necessitates combating illegal immigration. Outlawing assistance with irregular entry is merely one method to achieve this. Scholar Spena argues that, ironically, the Facilitation Directive views smuggling as a form of assistance that is only indirectly wrong. It is seen as aiding the true offense, which is irregular migration. This emphasis on deterring irregular migration results in a disregard for the smuggled migrants themselves, evidenced by the Directive’s lack of clarity regarding its relationship to international human rights or refugee law.
2. National interpretations of the Facilitation Directive allow for prosecuting genuinely humanitarian efforts.
The Facilitation Directive aims to broadly penalize, often through criminal law, a range of actions that could support irregular migration. Article 1.1.a directs Member States to sanction anyone intentionally helping a non-citizen enter or travel through their territory in violation of immigration laws.
Article 1.2 includes an optional “humanitarian clause” applying only to Article 1.1a. This clause allows Member States to choose not to impose sanctions when the action’s intent was to provide humanitarian aid.
Most Member States have adopted an expansive interpretation of Article 1.1a, enabling the prosecution of individuals who facilitate irregular entry for a variety of reasons. This ranges from smuggling rings knowingly endangering refugees to volunteers rescuing those in danger at sea. The optional humanitarian exemption permits the criminalization of a potentially limitless spectrum of actions at the national level. This lack of clarity prevents individuals from understanding the potential repercussions of their actions and could even outlaw ethically justifiable actions like Aldeen’s. A 2014 report from the Fundamental Rights Agency found that only eight Member States have explicitly adopted the optional “humanitarian clause” in their national laws.
3. The rescue of Danish Jews during World War II highlights the ethical necessity and value of certain smuggling acts.
The current refugee crisis is often compared to the scale of displacement witnessed during World War II. Similarly, the international collaboration to resettle refugees after World War II is frequently cited as a model for today’s response. However, we often overlook the “humanitarian smugglers” - today considered heroes - who saved Jews from persecution before the global community intervened.
In 1943, 95% of the Jewish population in Denmark avoided deportation to concentration camps, thanks largely to the combined efforts of fellow citizens and the Danish resistance movement. Within two weeks of the Nazi regime’s September 1943 order to deport Danish Jews, the Danes mobilized to help over 7,200 Danish Jews and 680 non-Jewish family members escape to safety in Sweden. This was primarily accomplished with the help of Danish fishermen.
Those who facilitated the evacuation of nearly the entire Jewish population from Denmark recognized the potential consequences of inaction and risked their own lives to save others. If apprehended by the Nazis, those aiding Jews faced imprisonment or even execution. The heroic rescue of the Danish Jews stands as a powerful reminder of the historical context, commendable nature, and unfortunate necessity of “humanitarian smuggling.”
4. Drafters of the 1951 Refugee Convention considered safeguarding individuals who help refugees cross borders irregularly for humanitarian reasons.
Under certain conditions outlined in Article 31 of the Refugee Convention, refugees may enter a country without authorization and avoid penalties. The drafters understood that refugees might be compelled to cross borders irregularly due to their vulnerable circumstances and should not be punished for this.
Given the expansive scope of the Facilitation Directive and the potential for prosecuting humanitarians like Aldeen, it might be surprising that some drafters, particularly the Swiss government, believed in protecting not only refugees but also those who rescue them. The French representative noted that organizations helping refugees reach safety were fulfilling “an obvious humanitarian duty.” However, the French government opposed changing Article 31’s language, fearing it would encourage refugee organizations to engage in illegal border crossings. The United States representative similarly acknowledged the lack of protection for those providing humanitarian assistance to refugees crossing borders illegally as a potential drafting oversight but did not support adding such protections.
Although the Refugee Convention doesn’t explicitly protect “humanitarian smugglers,” there was an understanding, albeit flawed, that governments should not and would not prosecute those assisting refugees for humanitarian reasons.
5. The landmark November 2015 Supreme Court of Canada case, R. v. Appulonappa, might offer a legal precedent for redefining the Facilitation Directive’s smuggling offense to decriminalize “humanitarian smugglers.”
The November 2015 Supreme Court of Canada (SCC) case, R v. Appulonappa, sets a legal precedent for narrowing the definition of smuggling. The SCC deemed that Section 117 of the Immigration and Refugee Protection Act, which criminalized smuggling, was overly broad and should be interpreted to exclude individuals providing humanitarian assistance to asylum-seekers or those providing mutual aid (including to family members). Similar to Article 1.1 of the Facilitation Directive, Section 117 theoretically criminalizes anyone facilitating irregular entry, regardless of motive or method.
The SCC determined that Section 117 extended beyond its intended purpose of targeting organized crime, stating that “a broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament’s purpose.” Potential amendments to Section 117 could serve as a blueprint for refining the Facilitation Directive’s prohibition to more accurately distinguish between acceptable and criminal smuggling activities.
Conclusion
These five observations offer starting points for navigating the complexities of human smuggling and the ethical need to decriminalize humanitarian acts that facilitate irregular entry. To provide effective recommendations for amending the Facilitation Directive to avoid prosecuting humanitarian aid to irregular migrants, the EC must first clearly define the specific acts of facilitating irregular entry that warrant criminalization. The EC faces the challenge that the primary aim of the Facilitation Directive is to deter irregular migration, and a narrower directive might undermine this objective.
During the current crisis, Europe has scapegoated human smugglers and those perceived as such. Targeting both criminal smugglers and commendable “humanitarian smugglers” serves as a temporary fix for a problem that can only be solved by establishing safe and legal routes for refugees to reach Europe.
Barnard & Peers: chapter 26
JHA4: chapter I:7
Photo credit: wikicommons: Syrian and Iraqi refugees arrive from Turkey to Skala Sykamias, Lesbos island, Greece. Spanish volunteers (life rescue team - with yellow-red clothes) from “Proactiva open arms”http://en.proactivaopenarms.org/ help the refugees.