The preamble of the European Charter of Fundamental Rights, an instrument applicable to all member states of the European Union (EU) when implementing EU law, holds that “the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity,” centralising the idea that EU member states must protect human life. Yet, several Southern European Member States have criminalised search and rescue (SAR) operations in the Mediterranean Sea and charged the rescue operations with the criminal act of smuggling. Therefore, the operators face years in prison if convicted. At the same time, the EU has closed down its own SAR operations, relying on its deals with the Libyan coast guard to intercept boats.
Criminalisation of saving human life
After Italy ended its SAR operations, much responsibility has been left to NGOs to conduct these operations. However, states have a moral and legal ‘responsibility to protect’, stating that states must act to save people’s lives. Scholars Eugenio Cusumano & James Pattison find that “there [are] humanitarian duties to assist migrants drowning”, saying that SAR operations must be conducted to save people’s lives.
Yet, SAR operations have been criminalised by certain Member States mainly on the grounds that they constitute smuggling, leading to the seizure of boats, prosecutions of captains, and most importantly loss of human life. The EU’s Facilitation Directive highlights that smuggling should be hindered, but that it is up to any given member state to decide on possible sanctions for people who work out of humanitarian concerns.
The EU’s expert centre on fundamental rights, the EU Agency for Fundamental Rights, argues on their website and in several of their reports that the organisation “has repeatedly underlined that actions against migrant smuggling must not result in punishing people who support migrants on the move for humanitarian considerations, including persons working for NGOs saving lives during search and rescue operations.” This underlines that while smuggling is prohibited by EU law, SAR operations work to save human lives first and foremost.
Cases of criminalisation in Greece and Italy
Greece and Italy are both examples of countries that have penalised SAR operations. While Italy appears to be taking a different turn in its migration policies and on allowing rescue vessels to dock, Captain of Sea-Watch 3, Carola Rachete is still on trial for disembarking people rescued at sea. In June 2019, she docked at an Italian port without authorisation and permission, after saving 41 people from the sea for which she “still faces possible charges of helping illegal immigration.”
Her actions have been heavily discussed, both with praise and condemnation, but she has indicated that she will persist in performing SAR operations, and says that “I see a very, very urgent need to act, because people are losing their lives every week in the Mediterranean Sea, which I see as our common European border. So protecting them, I think, is a duty of European citizens.”
Meanwhile, in another case, Greece is prosecuting the two voluntary operators, Sarah Mardini and Sean Binder on the grounds of “assisting illegal aliens into Greece, being part of a criminal organisation, money laundering, and spionage.” If convicted, the two people may face 25 years in prison.
Amnesty International says that “across Europe, people like Sarah and Sean have been targeted with criminal action… just for helping refugees” and pleads for the charges of the two search and rescue operators to be dropped.
Continued SAR Operations
The International Organisation for Migration (IOM) estimates that close to 100,000 people have tried to cross the Mediterranean Sea this year alone, and that NGOs are still highly involved in SAR operations. One of them, Médecins Sans Frontières (MSF), explains that they decided to reopen their SAR operations again in 2019, after having been closed down for nearly a year, as they regard these operations as a duty.
IOM highlights that over 1,000 people have lost their lives this year while trying to cross the Mediterranean Sea, signifying the need for continued SAR operations. Therefore, the MSF says that the EU must “respond to the urgent need for proactive and sufficient European search and rescue capacity” and stop criminalizing the ones who carry out SAR operations. After all, there is a responsibility to protect.