Migration crisis: European Parliament moves to prevent the criminalisation of those supporting migrants
ELZA HOLMSTEDT PELL
Europe’s migration crisis has mobilised strong support from civil society and citizens looking to help migrants enter, transit and reside in the European Union. In some cases, this has led to charges of people smuggling. In July, the European Parliament adopted a non-legislative resolution calling on EU countries to include a ‘humanitarian assistance’ exemption in their legislation. It also urges the European Commission (EC) to issue guidelines specifying the forms of facilitation that should not be criminalised by EU Member States.
The EU Facilitation Directive, adopted in 2002, guides Member States on how to tackle migrant smuggling and contains an optional clause to exempt humanitarian assistance from criminalisation. There is a discrepancy in how Member States interpret this.
Adding to concerns, the Hungarian government approved the so-called ‘Stop Soros’ law, which criminalises people who help asylum seekers, in June 2018. The EC subsequently said on 19 July that the law is in breach of the EU Charter of Fundamental Rights and launched a probe into the legislation.
But the legal risks for non-governmental organisations and citizens who help migrants go beyond Hungary, with uncertainties in numerous other countries over when exemptions for humanitarian assistance should kick in. ‘The purpose of a human trafficking law is to stop people from exploiting refugees,’ says Soroush Shahram, a lawyer at Sweden-based Adacta. ‘But Swedish courts, including the highest court, have judged that even if a citizen helps a relative cross the border illegally, he should be convicted of people smuggling.’
In April 2018, Sweden’s High Court eased the sentences in two people-smuggling cases where the offender acted on humanitarian grounds rather than for financial gain. But Shahram wonders why the criminal charges remained. While a humanitarian exemption is not enshrined in Swedish law, the legislative history documents say such exemptions can be made in cases of illegal entry, he says.
Only eight EU Member States have banned the criminalisation of humanitarian assistance. In France, the Constitutional Council ruled in July 2018 that the principle of fraternity, enshrined in French constitutional law, should have prevented farmer Cédric Herrou from receiving a four-month suspended prison sentence last August for helping migrants cross the Italy–France border.
“This is the moment for lawyers, especially in Western countries where populism is on the rise, to push every single legal avenue to get a more progressive solution
Member of the European Parliament
The Council noted, however, that with regards to facilitating the illegal entry of a person into France, it is up to the legislator to ensure there is a fair balance between the principle of fraternity and the safeguarding of public order – meaning it’s still not entirely clear whether similar cases would result in no prosecution in the future. French law states that ‘anyone who has, through direct or indirect assistance, facilitated or attempted to facilitate the entry, circulation or illegal stay of a foreigner in France shall be punished by imprisonment for five years and a fine of 30,000 euros’, which has been used against those assisting the entry of migrants for humanitarian reasons.
‘All citizens have the duty to assist a person in danger,’ says Karl Waheed, a lawyer and founder of Karl Waheed Avocats in France, and the Vice-Chair of the IBA Immigration and Nationality Law Committee. ‘The solidarity offence law tries to counter the civil duty.’
Herrou’s victory was hailed by civil right groups, who are hoping this will make it easier to contest accusations of the solidarity offence going forward. In addition, France’s proposed new immigration bill – while controversial – suggests more leniency regarding the solidarity offence.
This, alongside recent efforts by the European Parliament to address solidarity offences, indicate a developing landscape. Claude Moraes, the MEP who drafted the Parliament’s resolution, tells Global Insight: ‘We fully expect the Commission to [adopt] the guidelines and we’ll push very hard if that doesn’t happen.’
There are concerns, however, that guidelines will not be enough to prevent solidarity from being criminalised. ‘We welcome the resolution in Parliament,’ says Carmine Conte, Legal Policy Analyst at Brussels-based think tank, Migration Policy Group. ‘But the main problem is that [the directive] lacks an obligatory exemption for humanitarian assistance.’
Conte says it’s unlikely the legislative debate around the Facilitation Directive will be formally reopened in the current anti-immigration and populist political climate in Europe.
The EC said last year that a review of a Facilitators Package would ‘not bring more added value than its effective and full implementation’.
Moraes says he would not rule anything out in the ‘dynamic’ and ‘highly sensitive’ debate on how to manage migration. ‘This is the moment for lawyers, especially in Western countries where populism is on the rise, to use every possible lever and push every single legal avenue to get a more progressive solution,’ he says.
And lawyers can certainly look beyond the EU for guidance on solidarity and humanitarian assistance from a legal perspective. Definitions of humanitarian assistance and the principle of showing humanity exist in international treaties and laws.
‘The challenge is that many states, because they want to take control over their immigration policy, are seeking to move away from those definitions,’ says Neelim Sultan, a barrister and head of family law at London-based 1 MCB, and the Co-Chair of the IBA Human Rights Law Committee. ‘Criminalising acts of human solidarity runs counter to the shared jurisprudence of Europe, which gave birth to the Universal Declaration on Human Rights and the European Convention, as well as long-established ethical principles governing humane conduct.’
IBAHRI shares international tools to support UN torture prevention framework in Mexico
The IBA’s Human Rights Institute (IBAHRI) recently worked with the National Preventive Mechanism (NPM) of Mexico, sharing international tools and perspectives in a bid to strengthen the country’s torture prevention efforts.
NPMs are a global system, set up under a United Nations protocol, to independently monitor places of detention, in order to safeguard against torture and other abuses.
Mexico’s NPM was created in June 2017 by the national Law to Prevent, Investigate and Sanction Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It’s designed to guarantee the permanent and systematic monitoring of detention facilities in the country.
The IBAHRI programme in September provided international comparative perspectives on torture prevention. The experiences and challenges faced by other regional NPMs were examined. Following the success of a similar IBAHRI initiative in Brazil, the programme also covered the international guidelines for the effective investigation and documentation of torture that form the Istanbul Protocol.
Mexico’s NPM will analyse information to identify patterns and methods of torture, and prompt recommendations for law reforms to improve torture prevention.
International justice and accountability – new films
Two new IBA films focusing on the importance of the International Criminal Court (ICC) in securing global justice and accountability challenges in Africa are now available online.
In a recent interview to celebrate 20 years since the adoption of the Rome Statute, the IBA’s Executive Director Mark Ellis discusses the ICC’s contribution to the global fight against impunity.
Assessing the challenges facing international justice, Ellis considers the ICC’s commitment to a fair trial and the need for more international support for the Court, emphasising its key role in ensuring that accountability trumps impunity for atrocity crimes.
In the second film, the IBA’s Innovation Fellow outlines the corruption and exclusionary legal system in parts of Mali. Restoring trust in the justice system is key to supporting peace, stability and inclusion in the West African country, which is blighted by armed insurgency, says Blair Glencorse.
With justice out of reach for much of the population, he emphasises the need to integrate formal legal mechanisms with the informal justice systems in local communities.
Kofi Annan – a tribute
The IBA was deeply saddened by the loss of Kofi Annan, the 7th Secretary-General of the United Nations, who passed away on 18 August. A tireless advocate for peace and diplomacy, Annan and the UN co-received the Nobel Peace Prize in 2001 for revitalising the organisation and prioritising human rights.
The IBA’s Human Rights Institute (IBAHRI) Co-Chair Hans Corell, who was the UN Legal Counsel from 1994–2004, said: ‘Kofi Annan brought to the forefront the need for democracy and the rule of law in international relations. He understood that peace and security is simply not possible without a system under the rule of law in which fundamental human rights and humanitarian law are fully respected.’
As head of the UN from 1997–2006, Annan led the creation of the Global Fund to fight AIDS, Tuberculosis and Malaria in Africa, helped drive the ‘Responsibility to Protect’ doctrine, and launched the Global Compact on corporate social responsibility.
IBAHRI Co-Chair Michael Kirby said: ‘His actions saved millions of lives. Moreover, he showed the world that so much more can be achieved by international cooperation rather than war.’
The IBA was proud to welcome Annan as a special guest panellist at the 2015 IBA Annual Conference, where he contributed to a showcase on business and human rights and gave a fascinating and wide-ranging interview.
Conference to mark 30th anniversary of the Bangalore Principles
The legacy and continuing importance of the 1988 Bangalore Principles, covering the domestic application of international human rights law, will be examined at an upcoming conference hosted by the IBA’s Human Rights Institute and the Bingham Centre for the Rule of Law.
Taking place in London on 20 November, the event will mark the 30th anniversary of the Principles – a landmark set of legal rules on how judges should apply human rights norms.
Leading experts will assess the impact of the Principles since they were adopted at a judicial colloquium in India in 1988, as well as the role of parliaments, governments, human rights institutions and others in applying and promoting them.
At a time of backlash against international standards and institutions, speakers will also explore the prospects and challenges for the future. In particular, with the European Charter of Fundamental Rights ceasing to apply in the United Kingdom following its withdrawal from the European Union, the event will consider the domestic status of other international human rights obligations post-Brexit.
The Principles emphasise the need for national courts to have regard to international human rights norms for the purpose of deciding cases where the domestic law – whether constitutional, statute or common law – is uncertain or incomplete. They also encourage practical measures to promote knowledge of these norms throughout the judiciary and the legal profession.
The conference is free to attend but advance registration is required – go to tinyurl.com/iba-bangalore-event
IBA focuses on civil society organisations and starvation as a war crime to support UNHRC
The role of civil society organisations (CSOs) in combating impunity for atrocity crimes and the use of starvation as a weapon of war were the focus of two IBA side-events, held to coincide with the 39th Session of the United Nations Human Rights Council (UNHRC) in September.
In the first event, panellists discussed how CSOs, both international and local, are helping to advance accountability mechanisms for atrocity crimes, often working in parallel with independent commissions of inquiry (COIs).
Since its establishment in 2006, the UNHRC has authorised a growing number of COIs to investigate the facts and circumstances of urgent human rights situations. These commissions are increasingly being given explicit mandates to pursue accountability, in addition to their central fact-finding role.
The panel examined how CSO practices can be adapted to comply with international standards and meet local expectations of legal accountability. Speakers included: Catherine Marchi-Uhel, Head of the UN International, Impartial and Independent Mechanism on crimes in Syria; Michael Kirby, Co-Chair of the IBA’s Human Rights Institute (IBAHRI) and former Chair of the UN COI on Human Rights in North Korea; Mazen Darwish, President of the Syrian Center for Media and Freedom of Expression; Wendy Betts, Director of eyeWitness to Atrocities, which runs a groundbreaking app to capture verifiable footage related to atrocity crimes; and IBAHRI programme lawyer Natacha Bracq.
The second side-event focused on the international crime of starvation. It followed a landmark resolution, passed by the UN Security Council in May 2018, which deems that the use of starvation of civilians as a method of warfare may constitute a war crime.
Highlighting the situations in northeastern Nigeria, Somalia, South Sudan and Yemen, the event noted that every instance of famine and acute food insecurity today is happening in the context of an armed conflict.
The discussion explored the elements of the international crime of starvation – from attacks on health facilities to obstructing the delivery of relief supplies – its links with conflict-induced hunger, and how it’s distinct from famines. The gaps and constraints in existing law and other challenges to accountability were also outlined, along with the process of mounting a successful investigation and prosecution.
An introduction by Monique van Daalen, Permanent Representative of the Netherlands to the UN in Geneva, was followed by a keynote address by UN Special Rapporteur on the right to food, Hilal Elver. Expert panellists included World Food Programme Deputy Director, Brian Lander; Wayne Jordash QC, Managing Partner of Global Rights Compliance; and Emanuela Chiara Gillard of the European University Institute.
Both events were moderated by Federica D’Alessandra, Executive Director of the Oxford Program on International Peace and Security, and Co-Chair of the IBA War Crimes Committee.
A new UN resolution deems that starvation of civilians may constitute a war crime
India: Supreme Court decriminalises gay sex in groundbreaking ruling
On 6 September 2018, the Indian Supreme Court handed down an historic judgment decriminalising gay sex in India.
The ruling overturned Section 377 of the Indian Penal Code, a remnant of the colonial era which deemed that sex between men – and later extended to all LGBTI individuals – was a criminal offence, punishable by up to ten years in prison.
Activists celebrated in the streets when the judgment was delivered, not quite believing that it had finally happened.
The Indian government had called upon the Supreme Court to address the matter of decriminalisation. In fact, it went beyond its mandate and recognised fundamental rights, quoting both Goethe and Shakespeare as it did so.
The judgment stated unequivocally: ‘The State has no business to get into controlling the private lives of LGBT community members or for that matter of any citizen’, and ‘Section 377 results in discrimination and is violative of constitutional principles.’
This decision is clearly of huge importance in India and marks an important step in throwing off what many Indians see as colonial era shackles, which impede the development of the world’s second most-populated country.
Michael Kirby, Co-Chair of the IBA’s Human Rights Institute (IBAHRI) and former Justice of the High Court of Australia, says the ruling’s significance cannot be understated. ‘An independent court overturned an 1860 colonial law and invoked its own “constitutional morality” to protect its citizens against imported medieval prejudice,’ he says. ‘In one resolute stroke, the judges unanimously provided liberation to huge numbers of homosexual, bisexual and trans people, and their families, whose lives had until then been lived under a shadow of legally sustained prejudice.’
Phillip Tahmindjis, Director of the IBAHRI, says the judgment ‘vindicates at the local level – where human rights matter most – not only the human rights of all people, but also the dignity to which everyone is morally and legally entitled’.
The judgment signals the beginning of the end of inequality in India, believes Leo Raznovich, Co-Vice Chair of the IBA LGBTI Law Committee: ‘The very basic concepts of rule of law, privacy and equality before the law that were used to end the colonial law will serve to gain modern equality for all under the Indian Constitution.’
There are hopes the Indian ruling could trigger similar moves around the Commonwealth
Tahmindjis agrees the ruling is groundbreaking, but the judgment still leaves some questions unanswered. It states that it is no longer an offence to engage in consensual gay sex with a person of the same gender in private. However, ‘activity in private’ is not adequately defined and makes it unclear whether two men holding hands in the street would still be punishable, or even whether gay pride marches could still be banned.
‘The case is a great step forward, but it does not signal that the end of the road has been reached,’ says Tahmindjis. Indeed, although the law has changed, social attitudes may take much longer to shift in India. Delhi is a large international city, but LGBTI people in smaller cities or rural areas are likely to find it hard for a while yet to be open about their sexuality.
The judgment could have far-reaching consequences. More than 70 countries around the world still have laws that criminalise consensual same-sex acts. Similar laws to Section 377 are still in place in nearly 40 of the 54 Commonwealth countries. Many, including Paul Dillane, Director of the LGBTI charity the Kaleidoscope Trust, believe India will become a case study as LGBTI activists take up legal battles to overturn these laws.
Kirby says the judgment will be a vital strengthening tool for those fighting for similar reform in other Commonwealth countries. ‘The decision of the Supreme Court of India will add strength to the demands that those countries should move to get rid of such laws,’ he says.
Research undertaken by Enze Han and Joseph O’Mahoney in 2014 concluded that former British colonies were more likely to retain colonial laws criminalising consensual same-sex activity than the former colonies of any other power. Like Kirby, Raznovich hopes ‘the repeal of this colonial law in India may benefit the other former colonies, particularly those where the rule of law plays a fundamental role’.
The IBA has taken a firm stance against laws that criminalise LGBTI people around the world, repeatedly emphasising that LGBTI rights are human rights. It has recently made representations to the British government in respect of the laws of Bermuda, a British Overseas Territory, where the legislature is attempting to overturn a Bermudan Supreme Court decision handed down in May 2017, which stated that Bermudan citizens of the same sex were entitled to marry.
As Kirby says, it’s hoped that the Indian decision will ‘reinvigorate civil society organisations everywhere in their determination to get rid of these remnants of unscientific ignorance and prejudice’.