Mediterranean journeys in hope

Humanitarian citizens: breaking the law to protect human rights

When states criminalise help, is it a sign of active citizenship to disobey?

Janina Pescinski
28 August 2017


Sleeping on the streets of Paris. NurPhoto/SIPA USA/PA Images. All rights reserved.

This article draws on research that will be presented at the European International Studies Association Pan-European Conference on International Relations in September 2017.

As part of the European Union’s crackdown on irregular entry and smuggling of migrants and refugees, laws criminalising actions that facilitate the irregular entry, movement, or stay of foreigners have been enforced against those providing humanitarian assistance. Ongoing research at the United Nations University Institute on Globalisation, Culture and Mobility (UNU-GCM) examines how citizens are expressing solidarity with migrants by violating laws that criminalise humanitarian assistance. In doing so, these citizens are actively remaking their relationship to the state, challenging the notion of citizenship as a bounded legal category based on national identity in favour of an active form of citizenship as a practice of human solidarity.

In the Roya Valley, along the French-Italian border, citizens are actively contesting these laws through actions that assist migrants, and several court cases have been brought against them. Cédric Herrou has become the most visible face of the movement Roya Citoyenne, and numerous other individuals throughout the Roya Valley have become unlikely activists because of their assistance to migrants. For them, these activities began as a moral imperative to assist people in need and have evolved into political convictions against the government’s restrictive policies on migration.

Activities which began as a moral imperative to assist people in need have evolved into political convictions against the government’s restrictive policies on migration.

The actions of Herrou, Roya Citoyenne, and other grassroots groups in the region have much popular support, but have also met with political resistance and legal action. Breil-sur-Roya, where Herrou has hosted over 200 migrants on his farm, is a strongly polarised part of France. In the first round of the recent presidential election, the far-right, anti-immigration candidate Marine le Pen took 29.54% – well above her national average of 21.30% – while the far left candidate Jean-Luc Mélenchon came in second with 26.57%. Such polarisation is fuelling tensions in the area, and similar divisions have emerged in many EU states as governments and populations have reacted to the high profile migration of recent years.

Herrou has repeatedly been arrested and twice put on trial for his actions. In February 2017 he was sentenced to a suspended fine of €3000, and in August 2017 appeal of that case he was sentenced to a four month suspended jail term. While his cases have gotten the most visibility, he is not the only individual whom the French police have arrested and charged. These activists are cognisant of the laws that criminalise such actions, and they violate them consciously because they see them as unjust.

Legal frameworks

The criminalisation of assistance to migrants stems from the criminalisation of migration itself. When border crossings are made illegal, actions taken to facilitate these unauthorised crossings also become illegal, and thus “smuggling” becomes an industry and a crime. Increasingly restrictive border controls do not reduce migration, but they do push migrants to take greater risks and to enlist the help of people who can assist them to cross the border.

Many actions taken to help migrants complete their journeys are everyday actions that only become crimes when done for or with certain migrants. For example, driving across a border is not always illegal. But, when it is done to transport an undocumented person it becomes illegal. This highlights a tension that comes out of the 1951 Refugee Convention, which recognises that breaching immigration rules in order to seek asylum is often necessary, and guards against penalising asylum seekers for illegal entry or stay.

However, borders have become so difficult to cross that asylum seekers often have no choice but to solicit outside help, and those people can be prosecuted as smugglers or traffickers. Not all of the migrants passing through the Roya Valley are asylum seekers, and the majority will not be recognised as refugees, but even as the categories of refugee and migrant become blurred all humans are guaranteed basic rights irrespective of legal status.

Facilitating border crossings is not the only type of assistance that has been targeted for criminalisation. Four Roya Citoyenne activists have been arrested for helping migrants to move within French territory – they were attempting to bring them to a shelter without passing a police checkpoint. Earlier this year in Ventimiglia, just across the border from the Roya Valley, three volunteers were arrested for distributing food to migrants, which is in violation of a local order in the town. Because these actions carry no personal or financial gain for the activists, legally they should be recognised as humanitarian.

Three volunteers in Ventimiglia were arrested for distributing food to migrants, which is in violation of a local order in the town.

Within the European Union, the Facilitation Directive (2002) criminalises any act that facilitates the entry, transit or stay of unauthorised foreigners, with the explicit intent of combatting illegal immigration. There is an optional humanitarian clause that allows states to decide not to impose sanctions on people whose aim is to provide humanitarian assistance, but applying that clause is left to the discretion of states.

In French law, the Code for the Entry and Stay of Foreigners and the Right of Asylum states that any person who has, by direct or indirect aid, facilitated or attempted to facilitate the entry, circulation, or irregular stay of a foreigner in France is subject to up to five years imprisonment and a €30,000 fine. The law was most recently amended in December 2012 in an attempt to exclude humanitarian actions from prosecution, but these situations remain restricted. A violation of this law is referred to as “délit de solidarité” – an offense of solidarity – by activists, who have used this political slogan since the 1990s to denounce this law when applied to humanitarian actions, as is happening in the Roya Valley.

These legal frameworks also perpetuate the problematic narrative of criminal smuggler/migrant victim, which the European Union instrumentalises in its migration policy as a justification for hardening borders, according to research by UNU-GCM and others. Citizens of the Roya Valley are challenging this narrative with their actions of humanitarian assistance. They do not see themselves as criminal smugglers, and although they acknowledge that their actions violate the law they interpret the law as morally wrong. But defining these actors as pure humanitarians risks falling into another narrative trap, that of the humanitarian saviour and the migrant victim. These citizens recognise migrants as having the agency to make their own decisions around mobility, even when they do not have the means to do so. The Roya locals refer to themselves as citizens fulfilling their duty to fellow humans.

Humanitarian citizens

In the Roya Valley, those performing humanitarian actions describe themselves as acting in violation of the law but in accordance with their role as citizens of the French nation state. In their view, they are contesting government policies in an appeal to the higher ideals of their nation state. This is evident in the language they use when conveying their message to the media. Herrou has repeatedly stated “I am a Frenchman” and claims he is “doing the work of the state”. Another activist explains that “at some point it is our duty to disobey”.

This appeal to the language of citizenship and duty illustrates how citizens themselves are redefining their relationship to the state. Citizenship is no longer a passive legal status that is bestowed on subjects, rather it becomes an active system of practice that citizens themselves enact through their participation.

In this case, Roya citizen activists are calling on the government to fulfil its human rights obligations and uphold the ideals of the nation state. Under international law, the state has certain obligations to protect human rights and dignity, particularly in the cases of vulnerable groups like asylum seekers and minors. France, as a nation state, defines itself by the universal values of “liberté, égalité, fraternité”; it considers itself the country of human rights because of the 1789 Declaration of the Rights of Man and Citizen and its role in developing the 1948 Universal Declaration of Human Rights. These are the higher ideals to which the Roya citizens are holding the state by disobeying the law.

Those providing humanitarian assistance in the Roya Valley are not criminals; rather, they are acting as humanitarian citizens, redefining the citizen’s relationship to the state and the international human rights regime. In an increasingly securitised world, they are performing the role of the humanitarian citizen to uphold international human rights even when the law criminalises such actions.

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