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

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This research will address the question of whether ambiguity around the domestic interpretationof the 2002 Facilitation Directive has promoted the criminalisation of solidarity with migrantsand refugees in the European Union (EU). This is an important issue which requires detailedacademic investigation. Across the EU, cases of human rights defenders (HRDs) (includinghumanitarian practitioners activists, or other civil society actors assisting migrants) facingcriminal charges and being detained are increasing alongside border securitisation measures.This apparent 'criminalisation of solidarity' with migrants has taken different forms acrossnational contexts and, in a sense, appears to be interrelated with the criminalisation of irregularmigration itself. Criminal cases against HRDs aiding migrants do not occur in isolation. EU Statesare increasingly utilising detention facilities to hold migrants while simultaneously decreasingthe resources invested in pro-active search and rescue (SAR). Despite growing scrutiny by theEuropean Court of Human Rights, the Human Rights Committee, and other human rightsmonitoring bodies (see Khlaifia and others v. Italy, 2016 for a statement against migrantdetention or A.S. and others v Italy, 2021 for a review of extraterritorial obligations), suchconcerns continue. Emblematic cases demonstrate the nefarious impact of these bordersecuritisation policies on the work of those aiding migrants. In 2015, Lisbeth Zornig, a DanishHRD was found guilty of human smuggling for driving a family of Syrian refugees across a bridgeto Sweden (Zornig, 2016). In France, farmer Cedric Herrou was charged in 2017 with 'facilitatingirregular entry' for hosting asylum seekers in his home, before being acquitted by a Court ofAppeals in 2020 (Amnesty International, 2020). In Hungary, the 'Stop Soros' law criminalisingassistance to asylum seekers was found by the European Court of Justice (ECJ) to be in breach ofEU law (see European Commission v Hungary, 2021). Along the contested Mediterranean routes,politicians and FRONTEX border management officials have labelled the presence of civil societySAR activities as a pull-factor for increased irregular migration and have conflated humanitarianrescue with human smuggling (Franko, 2021). In Greece, the impact of this highly politicisednarrative can be observed in the case against the members of Emergency Response CentreInternational (ERCI), who spent several months in pre-trial detention after being arrested in 2018on charges of human smuggling, espionage, money laundering, and membership of a criminalnetwork (OHCHR, 2021). Similar cases have also occurred in Italy, with the seizure of vesselsand 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, thisresearch project will consist of two distinct analytical phases and consider three case studycountries: France, Greece, Italy. The first phase consists of a doctrinal analysis contrastingdomestic legislation under which acts of solidarity with migrants are criminalised withinternational human rights obligations and other relevant international legal frameworks, suchas 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 phaseis to identify the uncertainty around the conflicting legal frameworks allowing States tocriminalise assistance to migrants. The second phase seeks to understand the consequences ofthis legal uncertainty on the ability of HRDs to conduct their work, highlighting any perceivedrisks and potential hidden deterrent effect.