29th Feb 2024

Germany moves to criminalise NGO search-and-rescue missions

  • With the new move, Germany follows many other EU countries, including Greece and Italy (Photo: Frontex)
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Rescuing people from drowning in the Mediterranean and bringing them ashore could leave NGOs in Germany liable to criminal prosecution for "smuggling foreign nationals" into the EU — with concerns the offence would potentially be met with sentences of up to 10 years.

In an attempt to clamp down on trafficking, the draft amendment to the Aufenthaltsgesetz (Residency Act) would redefine what constitutes illegal assistance of entry into the EU.

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While the existing law in Germany criminalises facilitating entry in return for financial gain or other personal advantage, new legislation would expand the remit to include any form of assistance — regardless of motive.

The draft is still yet to pass through the Bundestag.

Other forms of humanitarian activity could also face prosecution, such as providing clothing, food or shelter to people deemed to have irregularly entered the EU.

The European Centre for Constitutional and Human Rights (ECCHR) states that humanitarian work is likely to be impeded and aid providers from civil society criminalised.

Those at risk of being charged include rescuers operating at sea, human rights proponents, humanitarian organisations as well as refugees and migrants themselves.

'Legal uncertainty'

After announcing the proposal, the federal ministry of the interior posted on X, formerly Twitter, that the amendment does not intend to make private sea rescue missions the target of prosecution. Rather, the legislation seeks to intensify campaigns against human trafficking — both at the EU's border and in the courts.

However, legal professionals caution that such a distinction is not possible.

"When it comes to the application [of the legislation] in criminal prosecution, the BMI has no authority at all to act," lawyer Carsten Gericke from ECCHR told national public broadcaster MDR. "The ministry's opinion and intentions are completely irrelevant."

The draft changes open up a realm of "legal uncertainty," says Gericke. "The cleanest way to prevent sea rescue and other humanitarian aid from being unintentionally criminalised would be to drop the amendment."

Legal grounds to prosecute traffickers already exist under German law.

An appeal to rescind the proposed amendment has been submitted by more than 50 civil society organisations, among them the European Centre for Constitutional and Human Rights, Amnesty International and Medecins san Frontieres.

In the current administration's coalition agreement, led by the Social Democrats, with the Greens and liberal Free Democrats, the duty to rescue people at sea and protect humanitarian work was explicitly reinforced.

Earlier this year, German foreign affairs minister Annalena Baerbock from the Greens reiterated her government's support for rescue missions at sea.

"We need shared responsibility and must strengthen solidarity," Baerbock told Die Welt. "That's why I believe it's important a European sea rescue organisation exists."

Germany will continue to finance non-governmental search and rescue until at least 2026, according to the ministry of foreign affairs.

Almost 2,200 people have been reported missing or dead crossing the central Mediterranean in 2023, according to Medecins sans Frontieres — making this year the deadliest since 2017.

During this period, repressive policies targeting humanitarian aid have surged through EU member states.

Earlier this year, Giorgia Meloni's government in Italy introduced a series of new measures curtailing NGO activities in the Mediterranean. From January to September, Italian authorities detained six rescue vessels for a combined total of 160 days.

Poland's heavy militarisation of the border area with Belarus has created a zone in which NGOs providing relief to migrants has become hazardous, resulting in destitute conditions for people crossing into EU territory.

Meanwhile, Greece has a track record of prosecuting humanitarian aid workers despite the absence of a profit motive.

In 2018, authorities detained 24 volunteers from NGO Emergency Response Centre International (ERCI) for a range of offences which include smuggling, fraud and espionage. The case is ongoing and ERCI has ceased operations.

The criminalisation of NGO-led search and rescue activity has created a climate of fear and had a chilling effect on humanitarian work, Amnesty International has reported.

Author bio

Danny Callaghan is a freelance journalist from Bristol, based in Berlin. He covers migration, climate and public health policy.

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