The ethics of criminalisation of solidarity of NGOs and refugees in Europe

V. Tais Yáñez.

15 Nov, 2021

On 19th of October, 2021, the Israeli Defence Ministry outlawed six well known Palestinian humanitarian organisations for alleged connections with the Popular Front for the Liberation of Palestine, a left-wing group designated as terrorist by both the State of Israel and the European Union.

These organisations, some of whom work closely with Human Rights Watch and Amnesty International (HRW, 2021), support women, children and disabled people, compile evidence of human rights abuses against Palestinian civilians, and provide detainee and prisoner support. The staff of all six groups now risk becoming prisoners themselves.

This particular decision by the State of Israel cannot be seen as an isolated case but as part of the global phenomena of criminalisation of solidarity.

I find there are similarities between what UN experts deemed Israel’s "frontal attack on the Palestinian human rights movement, and on human rights everywhere"(UNHR, 2021) and the current actions of some European Union Member States like Italy whose response at the beginning of the so-called refugee crisis was scrapping the rescue Operation Mare Nostrum altogether and substitute it with the monitoring and patroling Operation Triton run by Frontex. In addition to this the EU has also chosen to systematically persecute Search and Rescue organisations operating in the Mediterranean, a process that started in 2017 with the seizure of Jugend Rettet’s ship Iuventa and the prosecution of her crew.

Militarising the borders signals the lack of political will of governments to implement humane asylum and migration policies that comply with International and Maritime Laws. Solidarity is built as an act of resistance, just like migratory dissent, states Stierl (2018), therefore removing this political meaning allows for the treatment of refugees and SAR workers as mere criminals.

A lot has been said about the legitimacy, or lack thereof, of detention of asylum seekers and persecution of Human Rights workers and Sea Rescue, as well as the practice of refoulement

or pushbacks,which is forbidden by articles 32 and 33 of the 1951 United Nations Geneva Convention signed by all EU States. Therefore, this paper is not focused on the legal aspect of Fortress Europe’s border control or persecution of refugees and NGOs, instead, it is a reflection on the ethics of what Derrida (2001) succinctly puts as “permitting the prosecution, and even the imprisonment, of those who take in and help foreigners whose status is held to be illegal. This ‘crime of hospitality”.

Here, I will examine the moral grounds for the repression of active empathy that prioritises state security over human security in countries which claim to possess liberal values of egalitarianism, harmony, collectivism and commitment to others (Vignoles, Smith, et al, 2018). I evaluate the contradiction of promoting diversity, solidarity, tolerance, hospitality in a context where thousands of people are forced to use unsafe routes to seek asylum and safety in Europe, and many end up losing their lives because of the EU’s response.

Let us take Greece as an example. Voutira (2016) refers to the ancient principle of Xenos Zeus that imposes a moral obligation to welcome and protect strangers. This concept has been co-opted by the right wing Greek government to market the country as a great tourist destination but, she explains, many scholars have pointed out the duplicity of inviting certain foreigners for a holiday whilst normalising and promoting xenophobia and violent attacks on the ‘other’ unwanted foreigners, namely, refugees and migrants, as well as aid workers and antifascist activists including the 2013 murder of 27-year-old Pakistani refugee Shehzad Luqman, and the fatal stabbing of 34-year-old antifascist activist and rapper Pavlos Fyssas for which parlamentarians of the neo-nazi party Golden Dawn were found guilty of collusion just in October 2020.

The labeling of the issue as a European ‘refugee crisis’ as an ‘invasion’, especially by the far-right but not only, allows for a selective Xenos Zeus and interpretations of other philosophical principles of hospitality . On one hand the sun-loving Northern European holiday makers own " the right of a stranger not to be treated as an enemy when he arrives in the land of another… only a right of temporary sojourn, a right to associate, which all men have” (Kant, 1795) In stark contrast should poor and dispossessed people just displaced fleeing war-torn zones attempt to enter Greece, or indeed, the European Union ‘one may refuse to receive him'' (ibid). Should we choose to interpret this line of Kant’s Third

Definitive Article for a Perpetual Peace as a right to reject strangers we could have a philosophical, but not legal, framework to justify the EU’s refusal of asylum seekers, however Kant specifies the process must be done in a way that the foreigner is not destroyed.

Moreover Kant compares the intentions and actions of outsiders in European soil, to those of European nations during their invasions to the American continent, Africa and India, some of which are ongoing in the 21st century, and in fact are root causes of displacement. He calls out the “powers which make a great show of their piety, and, while they drink injustice like water, they regard themselves as the elect in point of orthodoxy” (ibid)

The paradoxes between Europe’s values and actions are, as Mainwaring and DeBono (2021) put it, “made possible through an oscillating neo-colonial imagination of the sea as mare nostrum and mare nullius, our sea and nobody’s sea” . Our sea to control and protect at all cost and yet nobody’s which , they say, “allows the EU and its member states to avoid responsibility for deaths at sea”(ibid) . In contrast, the humanitarian workers seem to work on Barnett’s premise that ‘there is no natural geographical scene for the cultivation of responsibility’(2005) to protect human life.

Schark and Witcher (2020) state that NGOs are “criminalized because they challenge and interfere with state policies and practices of hostile hospitality”. NGOs place the three pillars of human security: “freedom from fear, freedom from want and freedom from indignities… before states, institutions and the regional/international system” (Tadjbakhsh, 2014). NGOs are the enemy within threatening sovereignty and state security by aiding ‘illegals’ who, the highly xenophobic and racist rhetoric goes, aim to cause the destruction of European identity, values and way of life and provoke what Balibar (2009) calls a ‘clash of civilisations’ whereby the ideal of civilisation for the EU is based on past historical events.

Ethical considerations matter because the paradoxical interpretation of European ethics and values underpin the justification the EU has for the creation of policy that has caused thousands of deaths of people seeking protection they are legally entitled to, and which, at the same time, criminalises search and rescue operations carried out by NGO volunteers motivated by these values such as Sarah Mardini, a former refugee herself, Sean Binder,

Nassos Karakitsos and other eighteen volunteers, collectively known as the Free Humanitarians, who are currently awaiting trial in Greece for severe charges such as breaking the NGO’s Code of Conduct, aiding illegal immigration, espionage, human trafficking and terrorism.

The crackdown on solidarity actions at sea in particular has deadly consequences as it makes it impossible for the crews to operate as criminalisation implies withdrawal of permits, closing of ports, and seizure of ships such as the Iuventa in 2017, the Acquarius operated by Doctors without Borders and SOS Mediterranee in 2018.

Therefore one of the main objectives of criminalising saving lives of refugees at sea or helping in the Balkan Route, the French mountains, and other unsafe routes, is to deter not only potential immigrants but also sympathetic European citizens and residents who might wish to take action despite the years of constant use of what Cusumano and Bell (2021) call “discursive criminalisation strategies that hinder their legitimacy and access to the humanitarian space”.

The dissemination of negative anti-refugee and anti-activist propaganda would not be possible without the European media. For instance, Cusumano and Bell (ibid) carried out a thorough research of the behaviour of the Italian media from 2014 to 2019, among their conclusions is that:

“criminalisation in a narrow sense, consisting of direct accusations of unlawful behaviour, was mainly confined to the right-wing outlet. Both the conservative and… the progressive paper, however, have indirectly contributed to the criminalisation of humanitarianism through four framing devices: associational links, metaphors, frame-jacking, and othering processes.”

This preponderance of negative frames and the legal battles that ensue also divert the conversation away from the real issue as denounced by Captain Carola Rackete: “the refugees fleeing conflicts who are stranded in the Mediterranean Sea and the European Union's lack of action to help them.” (Deutsche Welle, 2019)

Although this paper is a reflection on how European values of hospitality and solidarity can be interpreted by all the actors involved, criminalisation versus saving lives is a colonial narrative that turns the voiceless migrant into, either, an aggressor or a victim. Nevertheless, it is important to realise migrants themselves do not lack agency inasmuch as the migrant is not a nameless monolith who ‘has merely moved into a geographic space that is transformed by the activist… into a space of politics”(Stierl, 2019).

Migrant resistance, says Skleparis (2016) is not “ isolated incidence of mobilization of irregular migrants against the government in support for their rights in existing institutions” . Migrant resistance starts with movement. Refugees and migrants are being demonised and criminalised in Europe for their origin, for resisting oppression, for fleeing violence to seek a better life. They are also being increasingly charged with henious crimes like terrorism for taking emergency actions to prevent the wreckage of their own boats, thus saving the lives of the people making the risky crossing with them as is the case of Lamin, Abdalla and Abdul known as El HIblu 3 in Malta; and that of the Samos 2, Hasan and N, in Greece.

In conclusion, although the criminalisation of solidarity is a global phenomena, we can see that Europe is foregoing its own humanitarian values of which it prides itself such as hospitality and compassion in favour of a xenophobic securitization of borders by outlawing not only Search and Rescue operations but migrant action and survival itself as well.

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