This blog is based on two earlier longer posts, published in Border Criminologies, which are available here and here.

Civil society has always been the first responder to humanitarian emergencies. For decades, fishermen, lawyers and people living in the southern European coast have been rescuing and supporting migrants, replacing the often non-existent government structure.

While those at the frontline of the migration crisis on the Greek island of Lesvos are being honoured with a nomination for the Nobel Peace Prize, certain alarming developments in EU policy and on the ground indicate that the EU and its Member States are moving in the opposite direction, placing a strain on civil society.

In February 2016 new legislation was introduced in Greece, which provides for the control and close monitoring of NGOs and volunteers operating on the island of Lesvos. In particular, everyone operating on the island of Lesvos needs to register with the police, while a ‘Coordinating Committee’ is responsible for the registration, identification and certification of all groups and NGOs. The Committee will approve and continuously control all their activities. As a consequence, individuals and groups will not be able to provide assistance to migrants without prior approval, and those who conduct humanitarian work without being included in the national registry could face charges of smuggling and complicity in a criminal organisation.

Already within a few months, the policies have started taking effect, painting a bleak picture for human rights protection in Greece. Several incidents of judicial harassment, including the issuing of administrative fines and the forceful eviction of camps and soup kitchens, but most importantly the criminalisation of flight helpers with the accusation of smuggling have been reported by international NGOs such as the Observatory for the Protection of Human Rights Defenders and Borderline Europe, Lesvos-based solidarity initiatives, such as Horio tou Oloi Mazi and Platanos Refugee Solidarity, as well as in the national and international press.

The new legislation has been presented, disconnected from its EU policy background, as a response to complaints concerning lack of coordination among volunteers, responsibilities overlap, management problems and competition among NGOs. However, a parallel reading of EU documents published in the period directly preceding the publishing on the Greek law and the judicial crackdown on humanitarian assistance, indicates a strong connection to EU policy.

The Draft Council Conclusions of 26 January 2016, drawing on the policy guidelines of the EU Agenda on Migration, place the emphasis on migrant smuggling and call for higher penalties and the intensification of law enforcement, close surveillance of social media and the participation of NGOs in investigations into migrant smuggling.

Most importantly, the Council equates smuggling with trafficking. In fact, what the two crimes have in common is the element of irregular border crossing, a feature that is only sometimes present in human trafficking. However, according to the Glossary on Migration of the International Organization for Migration (IOM): ‘Smuggling, contrary to trafficking, does not require an element of exploitation, coercion, or violation of human rights.’ This follows the definition of the UN Protocol against the smuggling of migrants, constituting trafficking as a quite different crime in both means and impact on the individual.

Current EU legislation and practice are already in contradiction to the UN Smuggling Protocol, which requires the punishment of the facilitation of irregular entry only when done with the purpose to obtain financial or other material benefit, hence exempting those who provide assistance for the sake of humanity and community. Contrary to international law, the relevant EU legislation, the EU Facilitation Directive (2002), leaves this ‘humanitarian exception’ in the discretion of the Member States (Article 1(2)). In its 2014 survey on the criminalisation of migrants and persons engaging with them, the Fundamental Rights Agency (FRA) found that only four out of the 28 Member States (Germany, Ireland, Luxemburg, and Portugal) punish facilitation only in cases in which it is done for profit, while only a few more states have included limited exceptions in their legislation.

The existing regime already leaves a significant gap in protection and the Draft Council Conclusions make no mention of a humanitarian exception. In this context, the elevation of the crime of smuggling to the level of human trafficking, and the intensification of law enforcement, have already started having severe consequences on the humanitarian response of civil society.

Furthermore, according to Statewatch, the adoption of new legislation in Greece has its policy basis on the relevant guidelines set in the Commission Progress Report on the Implementation of the hotspots in Greece in December 2015. In particular, the Commission requests the central coordination of all ‘relevant governmental and non-governmental players involved in the hotspot locations’.

From a legal perspective, national legislation and EU policy as it stands today fails to abide by the international obligation to exempt humanitarian assistance from punishment. It may also undermine respect for Article 31 of the Refugee Convention, which excludes the penalisation of refugees for irregular entry, and may result in violations of the ECHR and the EU Charter of Fundamental Rights. In order to ensure fundamental rights compliance, the emphasis in law and policy should be put on rescuing people in distress at sea and improving reception conditions, while NGOs and independent volunteers should be protected from overzealous surveillance and penalisation.