The criminalisation of search and rescue activities in the Mediterranean Sea

Arguably, it is the 2002 Facilitation Directive that allows Member States to criminalise humanitarian NGOs rescuing migrants at sea because it does not make a clear distinction between human smuggling and humanitarian assistance. The 2002 Facilitators Package consists of the Council Directive (2002/90) defining the facilitation of unauthorised entry, transit and residence and the Framework Decision (2002/946) on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence. It is the basis of European policies tackling migrant smuggling and the criminalisation of the facilitation of unauthorised entry, transit and residence.

The Facilitators´ Package should therefore be revised to protect humanitarian actors. Several international and regional organisations such as the United Nations Human Rights Committee, UNODC and the Venice Commission, as well as EU institutions and agencies have suggested the insertion of a stipulation under EU law that explicitly excludes humanitarian assistance by civil society organisations or individuals from the definition of human smuggling.

Considering the growing criminalisation of humanitarian actors, the European Parliament approved a resolution on 5 July 2018 seeking to stop the criminalisation and sentencing of groups and people who support migrants in need. The European Parliament voiced “concern at the unintended consequences of the Facilitators Package on citizens providing humanitarian assistance to migrants and on the social cohesion of the receiving society as a whole”. The resolution aims at decriminalising acts of humanitarian assistance. It specifically underlines that NGOs and individuals who support migrants perform a key role in backing national authorities and guaranteeing that humanitarian assistance is delivered to migrants in need.

Since the “migrants’ crisis”, NGOs and individuals have increasingly been investigated and prosecuted for helping migrants and their work has been made increasingly difficult. Italy and Malta have taken a firm position against humanitarian vessels rescuing migrants at sea. For example, Italy´s Interior Minister Matteo Salvini mentioned several times that Italian ports were close to humanitarian boats. Recently, the captain of a search-and-rescue ship faced up to 20 years in prison for aiding “illegal” immigration and collaborating with people smugglers. In April, a vessel previously used to save migrants´ at sea was declared unfit for rescue operations at sea by the Italian coastguards, obliging it to stop its activities. The Sea-Watch 3, a German rescue ship, was sized and docked by Italian authorities for several weeks before being released on June 1st.

The lack of safe, legal and orderly options often puts migrant smugglers as the sole means of fleeing wars, applying for asylum, reaching family members or escaping poverty. According to a UNHCR representative, the Mediterranean would be a “sea of blood” without rescue boats. The need for rescue boats is real and the work of crews operating them need to have the legal certainty that their actions cannot be criminalized.n 24 out of 28 Member States the facilitation of entry is a criminal offense, even without the objective of making a revenue out of it.

Author: Dr. Fanny Tittle-Mosser