the usual means of transportation for those without resources. Against this backdrop,
the boosting of criminal activities as a result of migratory movements is a cruel fact.
In view of the significance of the problem, the United Nations has issued the
Protocol against the Smuggling of Migrants by Land, Sea and Air, and the Protocol
to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children, both supplementing the United Nations Convention against Transnational
Organized Crime. For our purposes, it is to note the definition of smuggling of
migrants according to which it “shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal entry of a
person into a State Party of which the person is not a national or a permanent
resident”.
20 The latter highlights that this crime only takes place if it provides a
financial or other material benefit to facilitators that operate within a transnational
organized structure.
Rescue at sea followed by disembarkation at a place of safety does not fall within
the abovementioned definition. And nevertheless, there is a worrisome trend towards
criminalising all assistance to migrants regardless of whether it is made for profit or
not.
21 In particular, the trend targets crews on board ships operated by NGOs. In
2004, a ship operated by the Cap Anamur relief group rescued 37 migrants in distress
and the then Cap Anamur president, the ship’s captain and first officer were put on
trial in Agrigento, Italy, in 2006 to be finally acquitted in 2009. In another case, three
Spanish firefighters and two members of the Danish NGO Team Humanity were
caught in Greece returning from a rescue mission which ended without finding
anyone. Finally, the Greek Criminal Court No 9 of Mitilene in Lesbos found them
not guilty on 7 May 2018 [Agence France de Press 2018]. Similar is the case of the
Spanish NGO Proactiva Open Arms whose ship was arrested and the master indicted
in Sicily, on grounds of having disembarked 218 boat people in Italy against the
orders issued by the Italian authorities requiring the master to transfer them to Libyan
coast-guard ships (Tondo 2018b).
Fishermen have been also criminalised. In 2011, two Tunisian fishermen faced
charges in Italy after rescuing 44 migrants and disembarking them at an Italian port
(Mangano 2011). In early September 2018, six Tunisian fishermen were detained in
Sicily, also for helping people to reach Italy (Tondo 2018b). The UN Refugee
Agency has repeatedly complained that all these trials have a very negative impact
to the extent that seafarers and fishermen restrain from rescuing people stranded at
sea. As to NGOs, all their rescued ships have been withdrawn from where they are
much needed because of the arrests and the costs therein involved.
The (thin) legal basis for cases like the above-mentioned ones can be found in the
national implementation of the Migrant Smuggling Protocol. On a regional level, the
European Union has reinforced prosecution of these crimes by issuing specific
20 Art. 3(a) of the Migrant Smuggling Protocol.
21 See The Institute of Race Relations (2017) Humanitarism: the unacceptable face of solidarity,
available at:
L. Carballo Piñeiro
the boosting of criminal activities as a result of migratory movements is a cruel fact.
In view of the significance of the problem, the United Nations has issued the
Protocol against the Smuggling of Migrants by Land, Sea and Air, and the Protocol
to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children, both supplementing the United Nations Convention against Transnational
Organized Crime. For our purposes, it is to note the definition of smuggling of
migrants according to which it “shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal entry of a
person into a State Party of which the person is not a national or a permanent
resident”.
20 The latter highlights that this crime only takes place if it provides a
financial or other material benefit to facilitators that operate within a transnational
organized structure.
Rescue at sea followed by disembarkation at a place of safety does not fall within
the abovementioned definition. And nevertheless, there is a worrisome trend towards
criminalising all assistance to migrants regardless of whether it is made for profit or
not.
21 In particular, the trend targets crews on board ships operated by NGOs. In
2004, a ship operated by the Cap Anamur relief group rescued 37 migrants in distress
and the then Cap Anamur president, the ship’s captain and first officer were put on
trial in Agrigento, Italy, in 2006 to be finally acquitted in 2009. In another case, three
Spanish firefighters and two members of the Danish NGO Team Humanity were
caught in Greece returning from a rescue mission which ended without finding
anyone. Finally, the Greek Criminal Court No 9 of Mitilene in Lesbos found them
not guilty on 7 May 2018 [Agence France de Press 2018]. Similar is the case of the
Spanish NGO Proactiva Open Arms whose ship was arrested and the master indicted
in Sicily, on grounds of having disembarked 218 boat people in Italy against the
orders issued by the Italian authorities requiring the master to transfer them to Libyan
coast-guard ships (Tondo 2018b).
Fishermen have been also criminalised. In 2011, two Tunisian fishermen faced
charges in Italy after rescuing 44 migrants and disembarking them at an Italian port
(Mangano 2011). In early September 2018, six Tunisian fishermen were detained in
Sicily, also for helping people to reach Italy (Tondo 2018b). The UN Refugee
Agency has repeatedly complained that all these trials have a very negative impact
to the extent that seafarers and fishermen restrain from rescuing people stranded at
sea. As to NGOs, all their rescued ships have been withdrawn from where they are
much needed because of the arrests and the costs therein involved.
The (thin) legal basis for cases like the above-mentioned ones can be found in the
national implementation of the Migrant Smuggling Protocol. On a regional level, the
European Union has reinforced prosecution of these crimes by issuing specific
20 Art. 3(a) of the Migrant Smuggling Protocol.
21 See The Institute of Race Relations (2017) Humanitarism: the unacceptable face of solidarity,
available at:
L. Carballo Piñeiro