Migrant Search and Rescue Operations in the Mediterranean by Humanitarian Organizations: Migrant Smuggling or Humanitarian Assistance?

Since the International Organization for Migration (IOM) set up the Missing Migrants projects in 2013, aimed at compiling information on migrants who die or disappear on migratory routes around the world, the Mediterranean Sea has been identified as being by far the most dangerous route, with the greatest number of dead or missing migrants. Despite the difficulties involved in collecting this data, since most of the migrants who lose their lives are smuggled across by land or sea to avoid detection, according to the IOM, 30,900 migrants worldwide lost their lives between 2014 and 2018, 17,919 of whom perished in the Mediterranean in their attempt to reach Europe’s coasts along western, central and eastern routes.2 While there has been a significant reduction in the number of migrants who have died or disappeared in 2019 and 2020, falling from 2,964 in 2016 to 758 in 2019 and 377 in 2020, the figures are still considerable and they give a clear idea of the magnitude of the tragedy that immigration represents.3

Migrant search and rescue operations are covered by different international legal instruments binding upon all EU Member States. Rule 33 of chapter V of the 1974 Convention for the Safety of Life at Sea (SOLAS Convention), article 98 of the 1982 Convention on the Law of the Sea, and article 10 of the 1979 Convention on Maritime Search and Rescue (SAR Convention) all refer to the obligation of States and the captains of vessels to render assistance to any person in distress at sea

Despite the existence of this obligation, the truth is that there has been a progressive reduction in search and rescue operations in the Mediterranean by the EU and by its Member States.5 Faced with this inaction, different

NGOs dedicated to providing humanitarian aid6 have deployed vessels in the Mediterranean in order to search for and rescue migrants in distress at sea.7 Thus NGOs have come to play an important role in assisting migrants, although they have come up against substantial hostility on the part of certain States, which regard these NGOs as acting as accomplices in the illegal trafficking of migrants.

Along with the criminal proceedings filed by the authorities of certain States against rescue ship crewmembers, NGOs have also been subject to restrictions on the use of ports in certain Mediterranean countries and permission to leave ports once docked has been denied on the basis of judicial, administrative

or technical impediments.8 Also, as a result of measures to protect public health due to the COVID-19 pandemic, countries like Italy or Malta have closed their ports as they have not been considered safe. All this has led to a progressive decrease in the NGOs operating in the Mediterranean for fear of the sanctions that may be imposed on them, inferring the criminalization of the humanitarian aid provided by these organizations.9

Measures by States against NGOs, accusing them of carrying out criminal activities by fostering illegal immigration and encouraging the business mafias that smuggle migrants from Africa by sea, have had serious humanitarian consequences as their ability to rescue immigrants at sea has been limited. In turn, humanitarian efforts by NGOs have impacted on migration policies by forcing States to decide what to do and what the rescued migrants’ final destination should be. The activism of these NGOs and contrasting inaction on the part of States, combined with the harassment that these organizations have experienced, highlight the complexity of relations between States and NGOs, calling into question States’ real commitment to human rights.

Based on an analysis of different measures taken by certain States against NGOs involved in rescue operations in the Mediterranean and the current regulatory framework governing the fight to combat illegal immigration, this

article aims to assess whether the work of humanitarian organizations can be deemed to have been wrongly criminalized and what the consequences are from the perspective of the observance of human rights.

The only existing statistics on how many humanitarian rescue organizations operate in the Mediterranean and how many legal proceedings have been filed against them by the authorities of different States are those drawn up by the EU Agency for Fundamental Rights.10 If we focus on the last two years, it can be seen that, in 2019 and 2020, there has been a significant increase in legal action. This hostility toward humanitarian rescue organizations, the fear of having to face criminal proceedings, and the blocking or seizure of vessels have had repercussions on the number of them engaged in rescue work in the Mediterranean. Thus, there were 14 ships in May 2017, 5 in August 2018, 7 in June 2019 and 4 in June 2020.11 This drop in the activity of rescue organizations has gone hand in hand with the temporary suspension, in March 2019, of maritime military operations carried out in the southern central Mediterranean within the framework of EUNAVFOR Med Operation Sophia. This means that currently, apart from EUNAVFOR Med Operation Irini, launched on 1 April 2020 to control the arms embargo on Libya,12 there are very few vessels in the Mediterranean that can assist people in distress at sea, with the ensuing humanitarian consequences.13 In a joint statement issued on 29 August 2020, the IOM, the UN Refugee Agency and the UN High Commissioner for Refugees pointed out that the gap left by NGOs has been partly filled by assistance from commercial vessels and, as there are no clear

boat from a retired German couple, with calls by the prosecution for a prison sentence for human trafficking totalling 1655 years. In April 2019, the Spanish Ministry for Transport denied vessels owned by NGOs Proactiva Open Arms and the Humanitarian Maritime Rescue Association permission to leave Spain’s ports, considering that they could not carry out sea rescue operations. Likewise, in April 2019, the German authorities blocked a vessel belonging to the organization Mare Liberum for alleged security reasons. On 3 September 2019, the Italian authorities confiscated a vessel owned by the Italian NGO Mediterranean Saving Humans and the organization was fined €300,000 for entering the port of Lampedusa to put ashore 31 rescued migrants, despite the fact that, according to the NGO, they had the necessary permission to do so.16 In May 2020, vessels “Aita Mari” and “Alan Kurdi “ operated by the NGOs Salvamento Marítimo Humanitario and Mediterranean Saving Humans were seized in the port of Palermo due to technical and operational irregularities.

The statistics on proceedings filed in the EU against private bodies involved in Mediterranean rescue operations during the period 2017 and 2020, compiled by the EU Agency for Fundamental Rights, are truly worrying and they show a clear trend by certain States to prosecute humanitarian organizations, even in cases in which their national legislation exempts persons and bodies providing humanitarian aid to migrants entering a Member State’s territory from any criminal liability. Most proceedings concerning the blocking or seizure of vessels have ended in their release. However, some criminal proceedings have been brought against the captains and crew of certain NGOs or against individuals who have voluntarily rescued people at sea17 and some of them are

still in progress.18

Because the number of rescued migrants has increased in recent years, different countries have taken steps to criminalize or deter humanitarian sea rescue operations by NGOs and other private bodies or individuals on the grounds that they foster and cover up criminal activities, such as migrant smuggling, which is closely related to human trafficking.19A report presented on 16 April 2019 to the Council of Human Rights by the United Nations Independent Expert on Human Rights and International Solidarity states that the argument put forward by a State to criminalize humanitarian aid is the fact that migrant deaths will cease “(…) if its navy and its criminal justice system succeed in dissuading humanitarian workers from helping irregular migrants who are in danger at sea, which in turn will deter these people from trying to cross the Mediterranean or other seas.”

In 2002, in order to clamp down on migrant smuggling, including both assistance in irregular border crossings and for the purpose of sustaining networks that exploit humans, the EU adopted what is known as the “Facilitators Package”. This legal package, aimed at the approximation of Member States’ criminal legislation in order to combat such practices, is made

up of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence and Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.21

The so-called “Facilitation Directive” requires that Member States impose effective, proportionate, dissuasive sanctions on those who instigate, participate in or attempt to assist a person who is not an EU citizen to enter or cross the territory of a Member State in breach of the laws of that State on the entry or transit of non-citizens. While article 1 (a) states that each Member State shall impose appropriate sanctions on “any person who intentionally assists a person who is not a national of a Member State to enter or transit across the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens”, article 1.1 of the Framework Decision 2002/946 states that each Member State shall take the necessary measures to ensure that the violations defined in the aforementioned article of the Directive are punishable “by effective, proportionate and dissuasive criminal penalties, which may entail extradition”. Given that the application of these articles could lead to the penalization of assistance by humanitarian organizations or by individuals, article 1.2 of Directive 2002/90 includes a “humanitarian exemption clause” which states that “any Member State may decide not to impose sanctions with regard to the behaviour defined in paragraph 1(a) by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.”

Unfortunately, the inclusion of this clause does not exempt NGOs dedicated to sea search and rescue operations or the captains of these vessels from the possibility of having to face accusations of migrant smuggling and human trafficking, with the foreseeable criminal sanctions, since the inclusion of this clause in national criminal legislation is not mandatory, but optional (“Member States may decide not to impose sanctions” says Directive 2002/90). In fact, only six out of the 27 EU Member States provide for an exception under their domestic legislation that exempts organizations and individuals who assist migrants on humanitarian grounds from punishment.23 Thus, in a response by the European Commission of 31 July 2017 to a request by the Petitions Committee of the European Parliament, following an earlier request by a Spanish MEP on behalf of an NGO dedicated to humanitarian sea rescue operations, it stated that Belgium, Greece, Spain, Finland, Italy and Malta included some type of exception. The European Commission also highlighted the relevant fact that four of them were Mediterranean countries directly affected by the arrival of migrants to their coasts.24 However, in their transposition of the directive, most EU Member States have chosen not to insert the humanitarian exemption clause in the provisions that criminalize migrant smuggling. This clearly jeopardizes people and humanitarian organizations that assist migrants insofar as they may have to face sanctions.

When an evaluation is made of whether the exemption is included or not in the national provisions that typify and punish the illegal smuggling of migrants, it should be borne in mind, as the EU Agency for Fundamental Rights has pointed out, that the legal concept of ‘a state of necessity’ in force in countries like Hungary, Portugal, Lithuania or Spain would protect NGOs working in the field of the humanitarian aid from punishment.

Moreover, in the absence of a humanitarian exemption clause, decisions not to impose criminal sanctions on humanitarian organizations have been tied in with principles of a constitutional nature. Thus, in a judgment of 6 July 2018, France’s Constitutional Council declared that the provisions of article L 622 of the Code of Entry and Stay regulating foreigners and the right of asylum were contrary to the “principle of fraternity” established in articles 2 and 72.3 of the French Constitution.26 The applicants (organizations providing aid to migrants) appealed against the provisions of the said article of the Code of Entry and Stay in the consideration that the envisaged exemption from criminal liability only applied when a person was charged for having helped to facilitate an illegal stay and not for facilitating the entry and movement of a foreign national in an irregular situation within French territory. Similarly,

the exemption from criminal liability did not include assistance in facilitating an irregular stay for purely humanitarian reasons, without receiving any direct or indirect compensation in exchange. In the opinion of the Constitutional Council, “by sanctioning any assistance in facilitating the movement of a foreign national in an irregular situation, even if it is secondary to assistance in facilitating the foreigner’s stay and it is given for humanitarian reasons, the legislator did not ensure a fair balance between the principle of fraternity and the constitutional objective of protecting public order” and it therefore declared the words “assistance in facilitating irregular stays” contemplated in the first paragraph of article L 622-4 as being unconstitutional.

MEPs have condemned the criminalization of humanitarian aid and the optional, non-mandatory nature of the humanitarian exemption clause before the European Commission. The Commission was asked what measures it intended to take to promote the application of this clause and to clarify what types of aid should not be penalized by Member States.27 In his reply of 3 July 2018, although he considered that it was not necessary to modify the wording of the directive,28 Commissioner Avramopoulos (responsible at that time for Migration, Home Affairs and Citizenship policy) acknowledged “(…) a perceived risk of criminalization of humanitarian assistance as one of the areas in need of improvement.”29

In a report published in 2014, the EU Agency for Fundamental Rights raised the need to modify the wording of Directive 2002/90 to avoid any

criminalization of humanitarian aid to migrants. Also, while this amendment was still pending, it proposed the drafting of a practical guide “(…) to support EU Member States to implement the directive in a fundamental rights compliant manner.”30 The agency deemed that the guide should explicitly exclude any criminal sanction in the case of humanitarian aid for the entry of migrants (including sea rescues) and any form of humanitarian aid granted to immigrants in irregular situation.31

Along these lines, on 5 July 2018, the European Parliament (an institution that has shown a special sensitivity to human rights issues) adopted a resolution where it asked EU Member States to incorporate the humanitarian exemption clause into their domestic legal systems and urged the European Commission “(…) to adopt guidelines for the Member States that specify which forms of aid will not be penalized in order to ensure clarity and uniformity in the application of the current acquis.”

Finally, and after noting the significant increase in the actions taken against rescue NGOs, on October 1, 2020 the European Commission presented a communication with some guidelines on the application of EU rules aimed at defining and preventing aid to irregular entry, circulation and stay.33 It should be noted that the Commission takes a position clearly in favor of the humanitarian work carried out by rescue organizations at sea. After pointing out that “the duty of countries to set out the obligation to shipmasters to assist any individual, vessel or aircraft in distress at sea is recognized as a principle of customary international law” which is binding to all countries, the Commission makes it clear that “criminalization of non-governmental organizations or any other non-state actors that carry out search and rescue

operations while complying with the relevant legal framework amounts to a

breach of international law, and therefore is not permitted by EU law ”.34

Being aware of this reality, it might have been appropriate to propose a modification of article 1 of directive 2002/90/EC. However, the Commission just decides to include in this communication some guidance addressed to the States in order to interpret Article 1 of the Facilitation Directive. The Commission considers that article 1 must be interpreted in the sense that:

a) humanitarian assistance that is mandated by law cannot be criminalized;

b) the criminalization of NGOs or any other non-state actors that carry out search and rescue operations at sea, while complying with the relevant legal framework, amounts to a breach of international law, and therefore is not permitted by EU law; and c) where applicable, assessment of whether an act falls within the concept of “humanitarian assistance” in article 1 (2) of the Directive - a concept that cannot be construed in a manner that would allow an act mandated by law to be criminalized - should be carried out on a case- by-case basis, taking into account all the relevant circumstances.35

The Commission’s guidance is a very important step, as it clearly states that it is not feasible to criminalize the work of rescue organizations at sea36. It is even more necessary if we take into account the significant increase in criminal proceedings (the seizure of vessels and arrest of crewmembers) taken by some Mediterranean countries against organizations dedicated to sea rescue operations. Disappointingly, these legal proceedings have been taken by States such as Greece, Italy, Malta or Spain, whose legislation on migrant smuggling incorporates the humanitarian clause.

As the Commission has clearly pointed out recently, the criminalization of humanitarian aid by States does not comply with the provisions of international treaties aimed at combatting the illegal trafficking of immigrants and it is contrary to the most essential human rights, such as the right to life.

The UN Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted in New York on 15 November 2000 (and ratified by all EU Member States except Ireland),37 excludes humanitarian aid from its scope insofar as it cannot be considered that this activity responds directly or indirectly to the procurement of economic benefit.38 In NGOs’ capacity as civil society organizations dedicated to the promotion and protection of human rights, these bodies (particularly those dedicated to sea rescue operations) can be considered to be the defenders of human rights. According to a resolution adopted in March 1999 by the UN General Assembly, States have a prime responsibility and duty to protect, ensure and give effect to the fundamental rights of those who devote their activities to the promotion of human rights.39 The differing aforementioned proceedings that have been taken against humanitarian sea rescue organizations do not comply with international treaties or resolutions adopted by the United Nations. These documents clearly imply a commitment to protect NGOs as human rights defenders. As pointed out by the Commissioner for Human Rights of the Council of Europe, it is not reasonable to believe that these NGOs are engaged in the trafficking of illegal migrants.40 In response to evidence that humanitarian aid to migrants was being criminalized, in 2014, the UN adopted principles and guidelines calling

on States to adopt or amend any domestic legislation that could penalize individuals and organizations who rescue migrants at sea.41 In 2018, the UN reiterated these principles and guidelines.42 Furthermore, following Italy’s harassment of humanitarian organizations, independent UN rapporteurs and experts in the field of human rights have pointed out that “(…) search and rescue operations aiming at saving lives at sea cannot represent a violation of national legislation on border control or irregular migration, as the right to life should prevail over national and European legislation, bilateral agreements and memoranda of understanding and any other political or administrative decision aimed at ‘fighting irregular migration’”.43 Given the Italian authorities’ refusal to establish mechanisms to protect the life and dignity of migrants at sea, the experts referred to the existence of positive and negative obligations on the part of Italy which should clearly constitute a limit on the penalization of rescue organizations’ humanitarian activities.

The administrative and criminal proceedings that have been taken against crewmembers of ships and the vessels’ seizure have raised the issue of the compatibility of these actions with International Law (especially in the case of Italy), particularly with provisions on the Law of the Sea and human rights. This has led NGOs to appeal before domestic courts against decisions taken by the administrative authorities and by prosecutors. Indeed, the courts have referred to reasons of humanity and the need to guarantee fundamental rights, like the right to life, as justifications for not imposing sanctions on NGOs. It is the duty of judicial authorities to assess in the light of a case’s circumstances whether an act falls under an exemption as set out in national law and to strike the right balance between different interests and values at play.

On July 3 2019, based on “the duty to save lives at sea”, an Agrigento magistrate released Sea Watch 3 captain Carola Rackete, who was under house arrest for 72 hours after putting ashore 40 migrants rescued at sea.45 On 29 August 2019, another magistrate from Agrigento ordered the release of the Open Arms ship seized by the Italian authorities after 160 rescued migrants were put ashore. The magistrate pointed out that the “(…) obligation to save lives at sea is a duty of the States and it prevails over the bilateral rules and agreements aimed at combating irregular immigration. The international conventions on the matter, to which Italy has adhered, do in fact constitute a limit to the State’s legislative power in accordance with art. 10, 11 and 117 of the Constitution, and so an exception cannot be made to such a limit at the discretion of the political authorities, ranking themselves higher hierarchically than the prime source.”46

Some courts, however, have not shared this view and they have imposed restrictions on the movement of humanitarian activists and seized vessels. The compatibility of these decisions with the human rights standards of

the European Convention on Human Rights has been questioned recently before the European Court of Human Rights. On 24 April 2019, after filing pertinent appeals before the Greek courts, the organization Global Legal Action Network (GLAN) filed the first suit before the ECHR against Greece on behalf of Salam Kamal-Aldeen. GLAN considers that the confiscation of a vessel owned by NGO Team Humanity and its founder’s imprisonment under Greek law due to the organization’s humanitarian activities on the island of Lesbos since 2015 were contrary to certain rights recognized by the Convention.47 It is thus the first appeal brought before the ECHR that seeks to determine the compatibility of the Convention with measures adopted by States that criminalize humanitarian aid.

Inaction on the part of Mediterranean States has led humanitarian organizations to play a fundamental role in assistance and rescue operations

at sea. Incomprehensibly, these States have chosen to criminalize solidarity, perhaps due to their inability to manage migrant arrivals to their coasts.

Although the administrative and criminal proceedings that have been brought against the crews and vessels of humanitarian sea rescue organizations have had very little success, since no ship has been permanently immobilized and no one is currently in prison, it is worth wondering whether there is any sense to all this. Likewise, is the fact that only six of the 27 EU Member States have incorporated the humanitarian exemption clause in their domestic legislation on illegal immigration consistent with the fundamental values that inspire EU legislation? It all seems contrary to the values enshrined in article 2 TEU.

In the absence of the humanitarian clause’s inclusion and bearing in mind that the UN Protocol against the illegal trafficking of migrants by land, sea and air–which all EU Member States have ratified (with the exception of Ireland)– excludes humanitarian aid from its scope, it makes no sense for States to criminalize humanitarian aid by NGOs. Even if the Commission has recently published some guidelines (which are not binding to Member States) on the application of EU rules aimed at defining and preventing aid to irregular entry, circulation and stay, it should show more determination in amending Directive 2002/90 so as to make the clause compulsory for Member States. That would provide legal certainty to organisations dealing with migrants at sea.

Unfortunately, the humanitarian clause’s inclusion will not guarantee no acts of Member State harassment of humanitarian organizations. The EU and its Member States’ inability to manage migrant sea rescues in a joint way should not lead to the criminalization of solidarity with the sole objective of discouraging humanitarian aid by rescue organizations. Maybe the ECHR’s reply on the compatibility of repressive measures against some NGOs with the European Convention on Human Rights and the fact that some European Mediterranean countries have recently relaxed their immigration policies a little herald a change of course. Whatever the case, it is inadmissible for States to criminalize the activities of NGO rescue organizations and to view them as accomplices in the illegal smuggling of migrants when they simply provide humanitarian aid.

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SÁNCHEZ LEGIDO, A., Controles migratorios y derechos humanos, Tirant lo Blanch, 2020.

SMITH, A., “Uncertainty, alert and distress: the precarious position of NGO search and rescue operations in the Central Mediterranean”, Paix et Securité Internationales, no. 5, 2017, pp. 29-70.

TECH, V., “La fraternité en droit des estrangers : un principe qui manquait ?”,

Actualité Juridique , Droit Administratif, September 24 , 2018, no. 31, pp. 1786-1790

VOSYLIÜTE, L. & CONTE, C., Crackdown on NGOs and volunteers helping refugees and other migrants, Final Synthetic Report, June 2019, Research Social Platform on Migration and Asylum (RESOMA).