Offences under the Protocol against the Smuggling of Migrants do not capture the conduct of those who act for purposes other than obtaining a financial or other material benefit. As a result, the Protocol does not criminalize the actions of those acting out of humanitarian concern for migrants. The Interpretative Notes of the Protocol against the Smuggling of Migrants are clear in this respect.
The travaux préparatoires should indicate that the reference to "a financial or other material benefit" as an element of the definition [of migrant smuggling] was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations.
Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto
It needs to be emphasized that, in principle, where the financial or other material benefit is a constituent element of SOM-related offences, there would be no need to provide for a specific provision enshrining a humanitarian exemption. However, cases in which someone assists migrants for humanitarian reasons but receives, for instance, payment in the amount exclusively necessary to afford fuel to cross the border, could remain a grey area and be subject to criminalization under the Protocol. In such instances, States could consider including in their legislation a specific provision to exempt from criminal liability those engaging in such conduct. In jurisdictions that do not include a financial or other material benefit as an element, prosecutions against humanitarian actors could occur.
A case where three persons were prosecuted for facilitating irregular migration under the Italian law, which does not require proof of a financial or other material benefit, is presented in Boxes 22 and 23.
Italy acquits migrant rescue crew
An Italian court has acquitted three members of a German charity of aiding illegal migration after they rescued a boatload of stranded African migrants.
In 2004, a ship from the Cap Anamur relief group rescued 37 migrants who were stranded in the Mediterranean Sea. Former Cap Anamur president, Elias Bierdel, as well as the ship's captain and first officer, were put on trial in Agrigento, Sicily in 2006. Humanitarian groups have welcomed the ruling. The UN refugee agency had complained that the trial, as well as Italy's tough legislation on illegal immigration, had scared fishermen from rescuing people stranded at sea. Italy had at first turned away the ship, but let it dock after nearly three weeks when the captain issued an emergency signal. The three aid workers were detained for several days and then faced trial. "This verdict is important for all those who do good," said the ship's captain, Stefan Schmidt. "My only regret is that with the money we have spent fighting this case for five years we could have been helping people," he was quoted as saying by Reuters news agency. All 37 migrants were returned to their home nations after landing in Sicily. Many had claimed they were fleeing fighting in Sudan's troubled Darfur region, but were found to come from Ghana and Nigeria. Italy, with its long and porous coastline, is a major target for migrants seeking to enter Europe.
BBC News, 7 October 2009
Case N. 3267/04 R.G.N.R - Cap Anamur
The German Cap Anamur, property of the NGO of the same name, was registered as both a "cargo ship" and a "rescue and support vessel". During a mission, with destination Middle East, aimed at delivering food, medicines and medical equipment, the Captain stopped in Malta for repairs to the engines. The Cap Anamur remained in Malta from 26 May to 4 June 2004, after which it took several navigability tests into a restricted sea area. On 20 June 2004, the Captain gave order to perform a new series of manoeuvres at sea to verify the reliability of the engine. During these tests, the vessel detected, on international waters, an inflatable vessel with 37 African irregular migrants on board, asking for help. The migrants' vessel was leaking air, taking on water, and releasing smoke from the engine. In addition, weather and sea conditions were highly adverse. Against this background, the Captain ordered the rescue of the 37 migrants. Once on-board Cap Anamur, most of them admitted to be fleeing from Sudan, a country overwhelmed with civil war. They received first medical care from the nurse on board.
For several days, the Captain and the Head of the NGO Cap Anamur, while remaining on the high sea, studied the available avenues. Finally, they decided to head the Cap Anamur to Italy. While Libya was the closest port from the site of rescue, Sicily was the closest among those that could provide the most appropriate conditions to migrants, i.e. medical assistance, respect for human rights and a legal framework able to deal with the specific reality the migrants were coming from. By the same token, Sicily had the nearest harbour able to deliver the necessary logistical support to the tonnage of a vessel like the Cap Anamur.
Initially, Italian authorities did not consent to the disembarkment of migrants for several reasons. Amongst others, it had found a number of circumstances suspicious, such as the (i) "abnormal"movement/itinerary of the vessel in the previous days, which could indicate the intent of patrolling international waters in search of irregular migrants travelling by sea, and (ii) fact that in the 10-day periodthat separated the day of rescue and the day of communication with Italian authorities, the Cap Anamur had not informed Maltese authorities, even though it had navigated close to its territory. As time went through, the Captain warned that some migrants presented serious signs of distress: despair and frustration took over them, with some beating their heads against the walls, others threatening to jump into the sea in the hope of reaching Italian soil swimming. In addition, the vessel was facing shortage of water. Finally, the Cap Anamur was allowed to dock in Sicily, especially after the defendants' declarations according to which there was a real emergency. It was also feared a revolt from migrants, whereby the Captain declared not to be in the position to ensure security on board. Authorities understood the Captain was referring to a humanitarian emergency rather than lack of control over the migrants. Instead, once on-board, expertsdetermined there was no humanitarian emergency. Notably, no migrant required medical assistance and sanitary conditions were standard.
The Cap Anamur venture received intense media coverage. All migrants requested asylum in Italy. After proper verifications, it was determined that from the 37 migrants, 31 were Ghanaian and 6 were Nigerian. Asylum claims were thus denied, and the migrants were ultimately deported.
Note: For the full analysis of the case, including the reasoning of the Court, see SHERLOC Case Law Database