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Rescue a Refugee: Get Charged With Trafficking?

In Europe, governments are increasingly prosecuting people who help migrants.

An attempted rescue after a boat capsized off the coast of Italy, killing more than 30 people. (Chris McGrath/Getty Images)

The case was sensational. Two young volunteers stood accused of masterminding a massive smuggling operation on the Greek island of Lesvos, innocently disguised as a search-and-rescue NGO. 

One, Sarah Mardini, was already famous. She and her sister fled Syria in 2015, and when their dinghy’s motor failed on the sea crossing to Greece, the sisters swam the boat to safety—to the very island where Mardini would later be accused of running a criminal enterprise. The other, Seán Binder, was a German-Irish rescue diver and son of a one-time refugee from Vietnam. Mardini and Binder were charged with people-smuggling, espionage, and membership of a criminal organization. If convicted, they faced decades in prison.

It was a good story. There was also very little evidence for the charges.

Binder and Mardini’s organization, Emergency Response Center International (ERCI) ran rescue missions on Lesvos’s southern shore, collaborating regularly with the Greek Coast Guard. “It always seemed to be a fairly amicable relationship,” Seán Binder told me from his home in Cork, Ireland. He and Mardini had initially been arrested, questioned, and released in February 2018 during a routine rescue mission. Then, in August, police held a press conference, publicly denouncing the NGO as a front for “an organized criminal network that systematically facilitated the illegal entry of foreigners.” Mardini, Binder, and ERCI’s former director, Nassos Karakitsos, were arrested and denied bail. Pre-trial detention alone, they knew, could last 18 months. In prison, Binder taught English and German to the other inmates. He read, called his friends when he had phone credit, and waited for visiting hours. 

Then, in early December, all three defendants were finally freed on bail, just as Mardini said she had given up hope. The Greek prosecutors’ witnesses had contradicted themselves; an extensive search of a private security company owned by ERCI’s founder turned up nothing suspicious; and a PricewaterhouseCoopers audit of the organization found no supporting evidence for the police’s theories. According to Mardini’s lawyer, his client hadn’t even been in Greece on many of the days that she was accused of engaging in trafficking.

Mardini’s and Binder’s case, though garnering more media attention than average, is one of many such cases in the past few years. Similar charges have been brought against volunteers working with migrants all over the European Union, in what has come to be known as the “criminalization of solidarity”—the repurposing of laws originally intended to target human traffickers in order to prosecute those who aid migrants and refugees.

Strikingly, even as migrant arrivals to Europe have dramatically decreased, instances of criminal prosecution of humanitarian workers are on a steady rise. In 2018 alone, at least 89 people were placed under investigation or prosecuted for their involvement with border crossers, according to the UK Institute of Race Relations; 20 were prosecuted the year before. These cases have occurred on the EU’s periphery and at its center, in countries with vastly different political climates and experience of migration. Some, like Binder and Mardini, have been prosecuted for things they deny ever doing; others, like French farmer Cédric Herrou, who helped dozens of migrants over the French-Italian border, are taken to court for acts that they acknowledge carrying out but see as moral imperatives. “It is enraging to see children, at 2 in the morning, completely dehydrated,” Herrou told the court at his trial, referring to children he’d seen by the side of the road.

In 2000, the United Nations adopted a convention on trafficking that defined the act as transporting border-crossers for personal financial gain. But a EU council directive two years later was less specific, instead broadly criminalizing “the facilitation of unauthorized entry, transit and residence of migrants.” The 2002 directive mandated prosecution of for-profit migrant transporters, but left it up to the discretion of the member state to go after the not-for-profit variety—“cases where the aim of the behaviour is to provide humanitarian assistance.” In practice, it seems to have paved the way for member states to ignore precisely this distinction.

Despite isolated cases before 2015, it wasn’t until the refugee crisis hit Europe that the prosecution of humanitarian aid to migrants based on the 2002 directive truly coalesced into a discernible phenomenon. Over one million migrants arrived on EU shores in 2015, moving freely from Greece north to Germany. By 2016, that number was down to under 400,000, and it has continued to fall every year since: the deliberate result of EU policies that sent asylum seekers back to Turkey, disbursed millions of dollars to African governments who committed to stopping migrants long before they set foot on EU soil, and closed internal borders throughout Europe. 

Dragan Umičević, a volunteer who was prosecuted in Croatia this past year for allegedly helping a family illegally cross into the country from Serbia, saw this shift happen in real time. Umičević lives near the Serbian border; in 2015, thousands of asylum seekers began to move through the area, tracing a path north that became known as the “Balkan Route.” In response, Umičević and his friends began bringing food and blankets.

For a brief moment, the EU responded to the situation as a humanitarian crisis. “The political situation was to help people,” Umičević told me. “Now it’s gone in the direction of these people aren’t welcome anymore.” In March 2016, Umičević watched as tens of thousands of asylum seekers on the Balkan Route were stopped in their tracks overnight.

Since then, criminal prosecution of humanitarian aid workers has proliferated. “The EU and its institutions, particularly the European Commission and Frontex, and the member states, have presented their actions as a battle against the ‘traffickers’ who profit from the refugees’ plight,” Frances Webber, the vice chair of the Institute of Race Relations and a former barrister who’s done extensive work on solidarity criminalization, told me over email.  The irony, she pointed out, is that closed and militarized borders have actually created a greater demand for traffickers, opening vulnerable asylum seekers up to financial and sexual exploitation. And because of the 2002 facilitation directive, people associated with border crossers for humanitarian reasons become tarred with the same brush as the traffickers.

One of the first high-profile cases of such prosecution occurred on Lesvos in January 2016, when five foreign volunteers were charged with human trafficking after responding to a routine distress call at sea. As with Mardini and Binder, the defendants had cooperated regularly with the Greek authorities on search-and-rescue missions. Since then, everyone from 24 crew members of the rescue boat Aquarius to the editor-in-chief of the Belgian Marie Claire has been charged with human trafficking, prosecuted for actions ranging from rescuing people at sea to briefly housing them and purchasing them cellphones.

Migrant families, helped by volunteers, on the coast of Lesvos in 2015.
Bulent Kilic/AFP/Getty Images

National laws on trafficking vary widely from member state to member state and are patchily and even disingenuously enforced, as Webber wrote in a 2017 briefing on the subject. Though the case against Umičević, for example, fell apart in court—GPS data showed that the family he stood accused of spiriting across the border was already in Croatia by the time they made contact with him—he was still convicted of “unconscious negligence” and tagged with an 8000 euro fine.

If Umičević had been convicted of helping the migrants cross, he would have faced far harsher consequences: Croatian law makes no distinction between humanitarian assistance and illegal aid. Only eight member states include exceptions for humanitarian intervention (or specific types of humanitarian intervention: providing food, but not transport, for example) in their national anti-trafficking laws. But that doesn’t mean these exemptions are honored in practice. In Greece, a law governing facilitation of illegal entry exempts sea rescue—but Greek authorities claimed the volunteers in the 2016 Lesvos case were found in international waters, implying that they had been running refugees between Turkey and Greece. In Mardini and Binder’s case, the police’s theory of a vast smuggling conspiracy likewise aimed to preclude a defense of humanitarian rescue. 

It’s impossible to know for sure whether the overzealous prosecution of aid workers is merely a byproduct of closed borders or a coherent strategy of deterrence—for one thing, prosecutors would never admit to an EU-wide plot to deliberately target pro-refugee civilians. What seems fairly undeniable is that EU member states have taken full advantage of the 2002 directive’s “high degree of legislative ambiguity,” as a 2016 European Parliament study put it. Trafficking charges against aid workers have become so commonplace that they are now used as threats: In February, the unabashedly xenophobic Italian Interior Minister Matteo Salvini tried to intimidate the British crew of rescue ship Sea-Watch 3 with the possibility of an investigation into human trafficking charges for their actions in rescuing 47 migrants in the Mediterranean.

Harassment of humanitarians also sometimes seems to exceed what a state might find practical for another crime. Human rights activist Helena Maleno Garzón has been observing migrant and border militarization issues in Spain’s Moroccan enclaves of Melilla and Ceuta for years. The government, she told me, regards people like her as “unwelcome witnesses” to police abuse and security contracts with Spanish companies with questionable human rights records. 

Maleno has spent much of her career trying to draw attention to the persecution that human rights defenders around the world face. In 2012, she discovered she herself was under investigation by the Spanish government. But, unable to find enough incriminating evidence on Maleno to prosecute her in Spanish courts, the police eventually handed over their intelligence to Moroccan authorities, according to Maleno and her lawyers. In early 2018, she was hauled into court in Tangier, accused of people smuggling for her work receiving distress calls from migrants at sea and passing them on to maritime rescue operations. A year later, she’s still waiting for the judge’s decision.

Still, more often than not, courts around the EU seem to recognize the instinctive distinction between trafficking and humanitarian aid, despite prosecutors’ efforts.  In May this past year, the 2016 Lesvos smuggling case was finally resolved when the defendants were cleared of all charges in Greek court. And in December, the conviction of Cédric Herrou was overturned by France’s highest court. The decision to send Herrou’s case back to the Lyon court of appeals for reconsideration was based on by a ruling several months earlier that those who facilitate illegal entry into the country without being compensated for it should be immune from the usual penalties, under the French principle of fraternité. 

But the fact that these cases aren’t holding up in court hasn’t deterred authorities from continuing to mount them, or attempting to see them through to the bitter end. Webber finds it “astonishing” that charges were brought against Mardini, Karakitsos, and Binder in the first place, given the five Lesvos defendants’ acquittal. Though that case has now all but collapsed, a trial will most likely still take place—“it would be unprecedented” to drop it entirely, Binder told me. Maleno’s investigation, which she has described as a “sword of Damocles” hanging over her head, remains open, and Umičević is currently mired in an appeals process. 

These prosecutions generally don’t lock people up for the rest of their lives, and they don’t seem to affect the desire of migrants to seek asylum in Europe. But they do act as a pretty effective deterrent when it comes to aid work. Binder’s lawyer recently told press that “hundreds of volunteers have been discouraged, and on Lesvos many have left.” Since ERCI was forced to suspend its operations, there are no more formal search-and-rescue organizations active on Lesvos’s southern shore. The forced confinement to port of a number of rescue ships means that untold numbers of people have drowned in the Mediterranean.

“When you’re confronted with this type of criminalization, it has a really big impact on your life,” Maleno told me. “You need to take security precautions—I have to evaluate the risk to my family, to my children. It also has an impact on work. I can’t do my investigatory work with the freedom I had before.” 

This article originally misstated the number of people prosecuted in 2018 for assisting border crossers as “at least 99,” rather than 89. We regret the error.