Red Cross volunteers in Lesvos. Flickr/International Federation of Red Cross and Red Crescent. Creative commons.In mid-January 2016 volunteers and members of NGOs, were arrested and subsequently prosecuted for towing ashore refugees struggling in plastic dinghies off the coast of the Greek island of Lesvos. This is not unprecedented. In the summer of 2015 more volunteers were prosecuted for transporting refugees inland.
These criminal prosecutions are made on the basis of Art.30 of the Immigration and Social Integration Code, according to which it is an offence to provide shelter or to transport third country nationals, who do not have the right to remain in Greece, either into, in, or out of the country and into another EU member state.
The sentences range from 10 years in prison and a €10,000-€30,000 fine per person transported to life imprisonment and a fine of at least €700,000 per person transported depending on the presence of aggravating circumstances. The harsher sentences apply to traffickers.
The sentencing scale, however, should not be confused with the commission of the offence. Both traffickers and volunteers commit the same offence. In other words, the defendant’s mens rea, the subjective attitude towards the act that is generally required for one to be held liable for criminal wrongdoing, is independent from the defendant’s ulterior intent.
Initially the provision did not apply to cases of rescue at sea and when the person involved is deserving of international protection. But whether one falls under the category ‘deserving of international protection’ is assessed by Greek authorities and this generally happens very long after the event.
This prompted an amendment to the law, which introduced a partly subjective defence; the above acts are not offences when they aim at facilitating the submission of the person transported or hosted to the legal process of assessing the person’s status in order for them to be granted leave to remain. It is also required that the police or the coastguard be notified in advance of the transportation or hosting of the third country nationals.
It was on the basis of this defence that some of the volunteers prosecuted under Art.30 in the summer of 2015 were acquitted. Note that the general defence of necessity of the Greek Penal Code was not made available to them.
These cases have caused much outrage and rightly so. Most people vehemently object to the fact that, instead of being assisted by the state, volunteers acting on solidarity are being treated as criminals. Sadly, there is even more that is deeply worrying about it than this.
It is plausible to assume that one of the aims of the law is to control borders by reserving for the state (and the EU) the task of monitoring who goes in and out of its territory. This is coupled with the aim of protecting those deserving of international protection as well as those who may not fall under such formal categories, an aim ostensibly grounded in an international duty of care stemming from some sense of solidarity across borders. It soon becomes clear, however, that the latter is nothing but sheer rhetoric.
Let us consider the Art. 30 offence a little more closely. A central element of the wrongful act –the actus reus, to use the technical term– is the very status of the person transported. Had these people been Greek or EU citizens, transporting them and giving them shelter would be innocent acts; indeed, admirable acts of hospitality.
But their status as lacking leave to remain makes interacting with them in a non-harmful manner a criminal offence (indeed, in many cases such interaction is beneficial; so much so that there are growing calls that the people of the Aegean islands be awarded the Nobel Peace Prize). The wrong is displaced from the actions of the defendant themselves to features of the object of the offence. This is so not only for volunteers whose actions are guided by solidarity or benevolence but also for traffickers.
According to the current law, the latter’s actions are not wrong because they exploit and endanger other human beings (exploitation is merely an aggravating factor) but because they are instances of interaction with people who do not have right of access to a territory.
Simply being in a certain place at a certain time reduces refugees and others seeking safe haven in Europe to a miasma, a crimen/κρίμα/haram; it thus dehumanises them. They become exclusively objects to be managed and processed by the state. This is even more explicitly reflected in the defences to the Art. 30 offence. The only permissible way in which to interact with them is by assisting the state in treating them as objects in the limbo of rightlessness.
The growing trend of criminalising immigrants in Europe –‘crimmigration’ as the phenomenon has been dubbed– is well-documented and widely studied. The example that comes closest to the case of Art.30 is that of the criminalisation of various immigrant groups in Nordic countries in the name of the sense of solidarity that ostensibly grounds the welfare state, although these groups are excluded from the resources available to citizens.
To quote political sociologist of crime Vanessa Barker, the state exercises “benevolent violence” to save these people from the indignity of begging, sleeping rough and so on, which have no place in a well-governed society that cares for its members. The seeming paradox is that the concept of solidarity entails inclusion and yet it is used to justify exclusion through the criminal law.
The case of Art.30, however, goes even further than that. To criminalise immigrants, undocumented or otherwise, is already somehow to include them in the political community as its members, in however qualified and limited a manner. It amounts to at least recognising them as subjects capable of exercising control over their actions and of being held responsible for them (though this is not to say that there are necessarily good reasons for criminalising these actions).
But to turn them into the objects of a crime, into a constitutive part of an offence, as Art.30 does, radically excludes them from the political community, it denies them the very capacity to be a subject in the community. Thus, it severs the solidarity bond that purportedly grounds state and intra-state action, it undermines civil society even more radically than first meets the eye.
Could things be different? In principle they could and, indeed, should. The Art.30 offence should be revised as an exploitation-oriented one targeting traffickers and recasting refugees and other immigrants (along with the political community as a whole) as victims rather than as the object of the offence.
However, recognising refugees and third country nationals as victims of crime before the assessment of their status in international law also amounts to granting them access to resources and rights available to victims of crime. This, I fear, will stumble upon deeply rooted systemic obstacles driven mainly by the politics of austerity and Europe’s increasing isolationism.