Humanitarians or Smugglers? European Union border securitisation and the criminalisation of humanitarian aid and acts of solidarity with migrants

This research will address the question of whether ambiguity around the domestic interpretation
of the 2002 Facilitation Directive has promoted the criminalisation of solidarity with migrants
and refugees in the European Union (EU). This is an important issue which requires detailed
academic investigation. Across the EU, cases of human rights defenders (HRDs) (including
humanitarian practitioners activists, or other civil society actors assisting migrants) facing
criminal charges and being detained are increasing alongside border securitisation measures.
This apparent 'criminalisation of solidarity' with migrants has taken different forms across
national contexts and, in a sense, appears to be interrelated with the criminalisation of irregular
migration itself. Criminal cases against HRDs aiding migrants do not occur in isolation. EU States
are increasingly utilising detention facilities to hold migrants while simultaneously decreasing
the resources invested in pro-active search and rescue (SAR). Despite growing scrutiny by the
European Court of Human Rights, the Human Rights Committee, and other human rights
monitoring bodies (see Khlaifia and others v. Italy, 2016 for a statement against migrant
detention or A.S. and others v Italy, 2021 for a review of extraterritorial obligations), such
concerns continue. Emblematic cases demonstrate the nefarious impact of these border
securitisation policies on the work of those aiding migrants. In 2015, Lisbeth Zornig, a Danish
HRD was found guilty of human smuggling for driving a family of Syrian refugees across a bridge
to Sweden (Zornig, 2016). In France, farmer Cedric Herrou was charged in 2017 with 'facilitating
irregular entry' for hosting asylum seekers in his home, before being acquitted by a Court of
Appeals in 2020 (Amnesty International, 2020). In Hungary, the 'Stop Soros' law criminalising
assistance to asylum seekers was found by the European Court of Justice (ECJ) to be in breach of
EU law (see European Commission v Hungary, 2021). Along the contested Mediterranean routes,
politicians and FRONTEX border management officials have labelled the presence of civil society
SAR activities as a pull-factor for increased irregular migration and have conflated humanitarian
rescue with human smuggling (Franko, 2021). In Greece, the impact of this highly politicised
narrative can be observed in the case against the members of Emergency Response Centre
International (ERCI), who spent several months in pre-trial detention after being arrested in 2018
on charges of human smuggling, espionage, money laundering, and membership of a criminal
network (OHCHR, 2021). Similar cases have also occurred in Italy, with the seizure of vessels
and arrests of crew members of the Iuventa in 2022 and the Sea Watch in 2019 (see ECCHR,
2022 and HRW, 2019). To analyse and contextualise the criminalisation of solidarity, this
research project will consist of two distinct analytical phases and consider three case study
countries: France, Greece, Italy. The first phase consists of a doctrinal analysis contrasting
domestic legislation under which acts of solidarity with migrants are criminalised with
international human rights obligations and other relevant international legal frameworks, such
as refugee law and international law of the sea. This will be followed by a second phase,
consisting of qualitative key informant (KI) interviews with HRDs. The objective of the first phase
is to identify the uncertainty around the conflicting legal frameworks allowing States to
criminalise assistance to migrants. The second phase seeks to understand the consequences of
this legal uncertainty on the ability of HRDs to conduct their work, highlighting any perceived
risks and potential hidden deterrent effect.