The EC’s Guidance on the Facilitation Directive – Ending the Criminalisation of NGO-led SAR Operations?

[Malcolm Wu is an LL.M. candidate at the London School of Economics and Political Science.]

Introduction

As highlighted by Mudukuti and Gauci and Karageorgiou, the criminalisation of NGOs and human rights defenders (HRDs), notably within the context of search and rescue operations (SAR), has been on the rise in the EU since its migration crisis in 2015. A substantial role in this controversy belongs to the broadly-drafted Facilitation Directive 2002/90/EC which renders NGOs and HRDs liable for human smuggling for rescuing distressed migrants at sea (Amnesty International 2020 Report, para. 5.1).

Rather than amending the Directive, the European Commission decided to clarify its implementation through a Guidance Communication instead. Published on 23^rd September 2020 as part of the EC’s New Pact on Migration and Asylum, the Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence stated:

‘In view of the general spirit and objective of the Facilitation Directive, it is clear that it cannot be construed as a way to allow humanitarian activity that is mandated by law to be criminalised, such as search and rescue operations at sea, regardless how the Facilitation Directive is applied under national law.’ (EC Guidance, para. 3)

Despite affirming the legality of NGO-led SAR operations, this post highlights how the Guidance may not go far enough in ending their criminalisation. Accordingly, this post argues for an appropriate amendment of the Facilitation Directive. This will be done by first examining how the drafting of the Directive has led to the criminalisation of NGO-led SAR operations, taking Italy as a case study. This will be followed by the examination of how the EC’s Guidance addresses these issues.

The problem with the Facilitation Directive:

In its efforts towards sanctioning human smuggling, the Facilitation Directive deviates from the UN Protocol against Migrant Smuggling by Land, Sea and Air (Smuggling Protocol) by broadening its definition of the crime. Article 1(a) of the Directive defines human smuggling as:

‘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.’

This is in contrast with article 6(1) of the Smuggling Protocol which requires the facilitation of illegal entry to be in pursuance of ‘financial or other material benefit’ as an element to the crime. As article 1(a) of the Directive criminalises the facilitation of illegal entry of migrants regardless of motivation, this may prima facie bring HRDs conducting SAR operations within the scope of human smuggling despite not being conducted in pursuance of ‘financial or other material benefit’ but in pursuance of humanitarian motivations.

Article 1(2) of the Directive does offer the option for Member States to exempt facilitation of illegal entry from criminalisation in their national legislation when carried out in pursuance of humanitarian assistance. However, only 8 out of the 27 Member States have decided to do so thus far (EC Guidance, p. 5).

It is the Directive’s broadening of the definition of smuggling coupled with the mere option of exempting humanitarian assistance under article 1 that has paved the way for criminalisation of HRDs and NGOs (PETI 2018 Report, p. 14). Indeed, from 2015 to 2019, research has found 60 investigation and prosecution cases mainly concerning illegal facilitation of entry in 10 Member States. These cases mainly concerned HRDs and volunteers involved in SAR operations at sea (EC Guidance, para. 1). The UN Independent Expert on Human Rights and International Solidarity found that the Directive has ‘contributed the most directly and significantly to the maintenance of the legal regimes in most European States that suppress and criminalize humanitarian assistance to irregular migrants’ (UN 2019 Report, paras. 21-22).

Criminalisation in Italy

This can be observed in the wave of prosecutionsthat was conducted by Italy against the crew of Iuventa (2017), Open Arms (2018) and Sea-Watch 3 (2019) for their SAR operations (AI 2020 Report, paras. 6.4.3.1-6.4.4.1). Article 12 of Italy’s Immigration Act, punishing the facilitation of illegal entry into its territory, constitutes implementation of the Directive and has been used to criminalize SAR operations in most cases (AI 2020 Report, p. 59). Under article 12(1), only the intent to facilitate illegal entry of migrants into the State would suffice. Similar to article 1 of the Directive, the financial or material motivation behind the facilitation of illegal entry is not a necessary element to the crime, but merely an aggravating circumstance (AI 2020 Report, p. 60).

Article 12(2) does provide a defenceif one facilitates irregular entry in the course of humanitarian assistance. This is assessed upon whether facilitation of irregular entry was committed in fulfilling one’s duty or in a state of necessity. While this defence can exonerate HRDs when applied to SAR operations, this nonetheless has not prevented prosecutors from opening criminal investigations against them. Throughout these investigations, vessels may be impounded, SAR operations halted, lives of the accused disrupted, and NGOs may suffer from irremediable damage (AI 2020 Report, p. 60).

This can be observed in the 2018 case of the Open Arms whereby prosecutors alleged that the crew had facilitated illegal entry when they refused to hand over 218 rescued migrants to Libyan authorities and chose to disembark them in the Italian port of Pozzallo despite Italy’s refusal of disembarkation. This has led to the indictment of the captain of the vessel and the head of the mission in December 2018 in which they are still awaiting trial as of March 2020 (AI 2020 Report, p. 63).

Additionally, Italy required NGOs to sign a Code of Conduct for SAR operations in 2017. This Code required NGOs to ‘board armed police officials’ on missions and to ‘loyally cooperate with the police on the place of disembarkation’ among other requirements. These are beyond the scope of international law on humanitarian assistance (AI 2020 Report, p. 57-58). Yet breaching the Code, as had been done by NGOs at times in compliance with their non-refoulement obligations, has been argued by a Catania judge to constitute commission of the article 12 crime (AI 2020 Report, fn. 273).

The EC’s Guidance Communication:

While the EC noted the rise in prosecutions of HRDs (EC Guidance, para. 1), they refused to amend the Directive, relying upon their 2017 REFIT Evaluation that there has yet to be ‘reliable and comparable national criminal statistics’ to warrant an amendment (REFIT Evaluation 2017, p. 25; Institute of Race Relations 2017 Report, p. 2). They have thus resorted to clarification of the Directive instead.

The Guidance clarifies that humanitarian assistance mandated by law, particularly SAR operations that comply with the ‘relevant legal framework’, cannot be criminalised (EC Guidance, para. 4.i-ii). This is because such criminalisation would be in breach of international law and would thus not be permitted under EU law.

In determining the relevant legal framework that SAR operations has to comply with (to avoid criminalisation), the Guidance cited the international law of the sea, specifically:

• the UN Convention on the Law of the Sea (UNCLOS);
• the International Convention for the Safety of Life at Sea (SOLAS);
• the International Convention on Maritime Search and Rescue (SAR);
• and relevant maritime traffic treaties and International Maritime Organisation Resolutions.

This legal framework imposes upon States a duty to require shipmasters to assist and rescue any individual in distress at sea. This duty to assist and rescue, recognised as a principle of customary international law (EC Guidance, p. 7), by corollary includes a duty for States to disembark rescued migrants in the nearest place of safety(SAR Annex, para. 1.3.2; IMO Resolution A 920 (22)). A place of safety has been defined by the UNHCR, paragraph 10 of EC Recommendation C(2020) 6468, and article 2(12) of Regulation (EU) No. 656/2014 to include safety from threat of persecution in line with the human rights principle of non-refoulement. While the Guidance also stated that NGOs must observe instructions received from the coordinating authority when carrying out SAR operations, this is to the extent of which the instructions disseminated are in accordance with principles of human rights law (EC Guidance, p. 7).

Hence, in the 2019 case of Sea-watch 3, when Captain Rackete had disobeyed instructions from the coordinating authority to disembark rescued migrants in Libya due to the credible risk of refoulement, this was in compliance with the relevant legal framework. When she decided to disembark in the next closest place of safety – the Italian port of Lampedusa, after twenty days of stalling and refusal of disembarkation from Italian authorities, this was also in compliance with the relevant legal framework. When she breached the Italian Code of Conduct, i.e. disobeying the police on the place of disembarkation, pursuant to her non-refoulement obligations, this was also in compliance with the relevant legal framework. Therefore, Rackete as well as the aforementioned crews facing prosecution in similar cases should never have been arrested or prosecuted for their SAR operations.

The Guidance thus affirms the legality of NGO-led SAR operations that have been and continue to face criminalisation. Humanitarian assistance such as SAR operations, when carried out within the aforementioned legal framework, cannot be criminalised by any Member State. This is regardless of whether Member States have decided to exempt humanitarian assistance from criminalisation under national legislation per the option granted in article 1(2) of the Directive (EC Guidance, para. 4.iii).

Does the Guidance suffice?

Nonetheless, the Guidance does not appear to address the problem of criminal investigations.  As shown above, article 12(2) of Italy’s Immigration Act already has an express defence of humanitarian assistance against criminalisation. This has not stopped Italian prosecutors from opening and maintaining investigations. As observed in the case of Captain Rackete, the Italian Supreme Court found that Rackete acted within the relevant legal framework and should never have been arrested. The Court ordered for her release in January 2020 (UNDOC No. ITAx033; InfoMigrants Press Release). Yet, this has not stopped prosecutors from maintaining investigations. Even after publication of the EC Guidance in September 2020, the Italian prosecutors have still refused to close their investigations against Rackete (OHCHR Press Release). Within this remit, the Guidance evidently has not gone far enough in resolving the problem besides reiterating what has already been laid down in Italy’s immigration laws. At this point, it is hard to argue that these investigations are not a deliberate tactic to hamper NGO operations and deter civil society from participating in humanitarian efforts (AI 2020 Report, para. 6.4.5).

However, if article 1(a) of the Directive was amended to align to the definition under article 6 of the Smuggling Protocol; to require the facilitation of illegal entry to be in pursuance of financial or other material benefit as an element of the crime, NGO-led SAR operations per their non-profit, humanitarian mandate will fall outside of the scope of the crime. This will act as a barrier for prosecutors to open and maintain investigations. Further, as the relevant legal framework only pertains to SAR operations conducted at sea, humanitarian assistance conducted on land still falls within the scope of criminalisation. The amendment of article 1(a) would thus have the added effect of extending decriminalisation to humanitarian assistance conducted on land. Hence, alongside the advocacy of Amnesty International, PICUM, PETI Committee, and countless other HRDs, this post calls for the EC to amend article 1(a) of the Directive accordingly.  

Concluding remarks

As of June 2020, 11 NGO-led SAR vessels in the Mediterranean have ceased operations – 6 of which have been subjected to legal proceedings against vessel and crew and 5 of which are facing ongoing proceedings. Another 2 vessels, while currently operational, are also facing ongoing proceedings. This leaves only 1 NGO-led SAR vessel that is currently operating without having faced legal proceedings (FRA 2020 Update). This is incredibly worrisome. HRDs must be adequately protected from criminalisation when carrying out their duties and saving lives. The Guidance Communication has been useful in clarifying to all Member States the legality of NGO-led SAR operations and that such operations ‘cannot and must not be criminalised’ (EC Guidance, para. 4). While this may reassure HRDs of their legal position, this has not stopped criminal investigations, a tactic that has proven damaging to the lives of HRDs and the operations of NGOs. Amending the Directive to align with the standards of the UN Smuggling Protocol must remain at the top of the agenda.