Criminalisation of kindness: narratives of legality in the European politics of migration containment

Abstract

This article explores the emergence of the crime of migrant smuggling and its legitimising narratives as tools of global migration management. We examine the ways in which the language of ‘migrant smuggling’ was introduced into and then lifted out of the context of international law and recontextualised to serve the purposes of migration management. The main consequence of this fusion of law, narrative and policy is the redefinition of the legality of actors and actions along the migration routes across the Sahara, the Mediterranean and Europe. We examine the conflict between two dominant narratives of legality: the smuggler narrative vs the rescue narrative. Laws designed to protect people are being turned against the people they were ostensibly designed to protect. We argue that the smuggler narrative facilitates policies whereby wealthy states, under the pretence of law, contain migration from the South within the broader framework of a divisive global politics of life. Since these policies are implemented through bribery, blackmail and brute force, they are displaying the ugly face of global migration governance without contributing in any way to a solution of the problems driving migration in the current global environment.

Keywords:

• Migration and refugees
• governance
• Global South
• human rights

Introduction

On a Monday morning in September 2015, Lisbeth Zornig Andersen, the chair of Denmark’s Children’s Council, heard the news that hundreds of Syrian refugees had entered Danish territory from Puttgarten in Germany on the ferry to Rødbyhavn, from where they were now walking towards the Swedish border. Andersen was already driving in the same direction and decided to look out for refugees and perhaps offer them a lift in her car. It was a big car with six empty seats, and Andersen found a family with two small girls who gratefully accepted her offer. She immediately posted her experience on Facebook, and within hours, hundreds were following Andersen’s example, picking up refugees or offering them a place to rest. This story later made global headlines because Andersen, who saw herself simply as a ‘good Samaritan’, was charged with the crime of facilitating the movement of irregular migrants and sentenced to pay a fine of €4000, or 14 days in prison. From her perspective, Denmark had ‘criminalised kindness’ ¹ towards strangers in distress.

The background condition of the experience shared by Lisbeth Andersen and her migrant passengers lies in international law which requires refugees in search of international protection to establish physical presence or ‘physicality’ inside or at the border of the territory of a receiving state. ² To avoid this situation of having to grant protection, states increasingly respond by developing biometric border regimes, ³ but also by building border walls and fences on land or by engaging in aggressive migrant interdiction on the high seas and illegal practices of direct or indirect (‘by proxy’) refoulement. ⁴ Taken together, these activities have been described as attempts to build something like a ‘floating Berlin Wall’ ⁵ around Europe and other parts of the world.

In light of these efforts, it is no surprise that the unprecedented movement of refugees across the Mediterranean in 2015 was experienced by Europeans as a fundamental disruption of the order of things, or as a ‘crisis’. The exiled Syrian writer Yassin al-Haj Saleh makes the point that the refugees and migrants from the Middle East and Africa who have sought shelter in Europe ‘have invented something new in international politics: crossing multiple borders, that is, erasing borders in an unprecedented way that can be imitated by others’. ⁶ In response to the underestimated agency of migrants, governments, egged on by the populist far right, have resorted to the use of smuggling laws and their legitimising narratives to deter the humanitarian actions of pro-refugee citizens and non-governmental organisations (NGOs). ⁷

The aim of this article is to explore the invention of the ‘crime’ of migrant smuggling, and the widening of its definition as a tool of global migration management. Scholars have examined smuggling across the Mediterranean and the Sahara. Social movement scholars and geographers have furthered our understanding of the solidarity movement in Europe. And legal scholars have contributed to our knowledge of how smuggling laws are used to target civilians. These studies, however, have not offered a broader theoretical understanding of the ways in which the introduction of ‘migrant smuggling’ serves the purpose of migration management. The article draws on Lon Fuller’s understanding of law as a reciprocal process between lawmakers and citizens, and on Robert Cover’s crucial insight that no ‘set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning’. ⁸ Cover emphasises that in order to make people abide by the law, they need to share an interpretation of the law that makes sense to them. Legal meanings are created in what he calls ‘interpretive communities’. ⁹ By adopting this term, Covers questions the objectivity of the law and the possibility of discovering the one correct meaning in legal texts. Rather, he suggests that legal meanings develop in a dynamic relationship with the expectations, assumptions, hopes and fears of those who implement or who are subject to the law. This process of creating meanings is not completely open but constrained by interpretive communities such as policymakers in government bureaucracies, elected politicians or groups within civil society and the general electorate. To understand the process through which legal innovations such as the laws against migrant smuggling gain social force, it is necessary to look beyond the law and include what we call narratives of legality as they are created in wider society.

Certain interpretive commitments enable actors with mandates to combat migrant smuggling, such as local police and prosecutors, to focus their efforts on the criminalisation of a wide range of expressions of ‘kindness’ towards migrants in need. At the same time, the expansive reading of what constitutes migrant smuggling has repeatedly been challenged in the courts at the initiative of citizens defending their pro-migrant actions in terms of a counter-narrative. The contestations and conflicts around new migration laws point to the more general insight that the law has no force of its own. It becomes binding, as Fuller has pointed out, only if enmeshed in a fabric of trust and reciprocity that underlies the relationships between lawmakers and citizens who may have different understandings of the meaning of the law. ¹⁰ These different understandings are negotiated and consolidated in interpretive communities formed by those who implement the law or who are subject to it. Disagreements among these communities cannot be resolved simply by appealing to the text of the law, which is always open to interpretation and does not automatically instil a feeling of obligation on the part of the public.

We hope that a better understanding of the proper role of narratives of legality within evolving new modes of migration governance also helps us to strengthen the conceptual framework of the ‘politics of life’ which, according to Didier Fassin, is centred on the distinction between saving and risking other people’s lives. ¹¹ To draw this distinction, it is required to construct some lives – the lives of refugees, children or women – as ‘innocent’ and other lives – the lives of smugglers or ‘illegal’ migrants – as less innocent and sacrificiable. ¹² The law tells us how to look at the world, who counts and who does not. People need to reach an agreement, within interpretive communities, about ‘what law means and what law shall be’. ¹³ The unequal roles of innocents and illegals are assigned following narratives about ‘good’ and ‘bad’ migrants, their smugglers, advocates and rescuers. Narratives of legality add moral significance and emotional appeal to different interpretations of the law. They simplify complex events and ambiguous laws into meaningful episodes and unambiguous imperatives.

Our argument unfolds in several steps. We begin by focussing on the complex genealogy of ‘migrant smuggling’ as a legal and criminal category including the legal uncertainty created by overlapping laws and policies concerning what constitutes the crime of migrant smuggling. Second, we are interested in how the category of migrant smuggling moved between different legal and extralegal contexts and speech genres, giving rise to a populist smuggler narrative that is part of the conspiratorial fantasies of the new far right in Europe and the United States. We show how smuggling policy texts have emerged in a variety of political processes in Europe and examine the ways in which these texts have been shaping how those who assist refugees are perceived. Third, we turn our attention to the rescue narrative as an alternative to the smuggler narrative and its limited value for rethinking the relations between the Global South and the rest of the world. We then briefly look at the fallout of anti-smuggling policies and narratives in a locality such as Agadez in Niger, where one can see how aggressive state practices such as pushbacks or cooperation with militias and authoritarian states impact on the realities of migration on the ground. We conclude that the main mechanisms used by wealthy states to externalise the control of migration from the South – bribery, blackmail and brute force – display the ugly face of global migration governance without contributing in any way to a solution of the problems driving migration in the current global environment. ¹⁴

Migrant smuggling laws as tools of migration management

The 1951 Refugee Convention and 1967 Protocol (hereinafter: Refugee Convention) is intertwined with a corpus of international, regional and national laws and policies that seek to address different aspects of the migration ‘problem’. Whereas the Refugee Convention seeks to protect the rights of individuals fleeing persecution to access an administrative process through which they can be granted asylum status, there are other overlapping human rights instruments and laws that provide other forms of protection for refugees and migrants. One of these more recent instruments is the 2000 United Nations Convention against Transnational Organized Crime (UNTOC, also known as the Palermo Convention). The Palermo protocols, adopted to supplement UNTOC, include a Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and a second Protocol against the Smuggling of Migrants by Land, Sea and Air (hereinafter: Migrant Smuggling Protocol). ¹⁵

Under the Refugee Convention, a refugee is someone who

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion is outside the country of his nationality and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.

The drafters of the Refugee Convention recognised that a refugee would not have the luxury of already having a visa to get across a border in order to reach a safe haven. So, they included Article 31, which protects refugees from states imposing penalties ‘on account of their illegal entry of presence’ as long as they ‘present themselves without delay to the authorities’ and ‘show good cause for their illegal entry of presence’. ¹⁶

This means that, strictly speaking, no one is illegal, even if she entered a country illegally, as long as she ‘presents’ herself to the authorities. The ability to establish a territorial presence in the state and the willingness to present oneself to the authorities rectify the illegality of the border crossing. The Migrant Smuggling Protocol, intended to obviate the unscrupulous multi-billion-dollar industry of human smugglers, can be read as a response to this situation. The Migrant Smuggling Protocol, as part of the legal landscape of humanitarian protection, introduces a new narrative element that shifts attention away from protecting would-be refugees under Article 31 of the Refugee Convention to deterring smugglers. It thereby puts great emphasis on blocking illegal entry by strengthening border controls and by making the work of intermediaries such as human smugglers more difficult, more dangerous and more expensive. Under the protocol, states are required to criminalise the smuggling of migrants as well as related offences such as the production, provision and possession of false travel and identity documents. The protocol also includes a section on preventing the smuggling of migrants by sea, in particular through empowering states to take appropriate action against ships that are suspected to be engaged in the smuggling of migrants. More recently, the Global Compact for Safe, Orderly and Regular Migration has urged states to cooperate more closely with the aim to ‘prosecute and penalize’ the smuggling of migrants across borders. ¹⁷

But what is migrant smuggling? Article 3 of the protocol defines smuggling as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’. The reference to ‘financial or other material benefit’ has been included to make sure that those who provide support to migrants on humanitarian grounds or based on close emotional ties are not criminalised. Today, there is no single agreed definition of migrant smuggling globally, and no consensus on what exactly is wrong with it. A wide range of actors and activities can potentially fall within the definition of smuggling. In 2016, the International Organization for Migration (IOM) released a report summarising empirical research on smuggling practices across the globe. According to this source, ‘smuggling’ is an umbrella term covering a spectrum of non-coercive actors and practices that include, on one end, ‘agents, who may be legitimate travel or migration agents providing lawful services to travelers/migrants, with perhaps occasional assistance to those seeking to travel irregularly (such as fraudulent documents, contacts, information/advice)’, and, at the other end, professional smugglers, ‘who oversee sophisticated transnational criminal syndicates and networks that deal with large-scale operations, often involving different types of smuggling and/or trafficking’. ¹⁸

According to the IOM, migrant smuggling can be conceptualised as a transnational crime committed for financial gain or other material benefit, as defined by the Migrant Smuggling Protocol; an altruistic practice that is not primarily motivated by financial or other material benefit; humanitarian action, which may or may not involve financial or material gain; and ‘self-smuggling’, whereby migrants smuggle themselves in order to enter a country without prior permission, as a stowaway, for example, on a vessel or aircraft. ¹⁹

The IOM cautions that these definitions are broad and sometimes overlapping. Moreover, regional or national legislation may differ and change under the pressure of states or advocacy groups. The allusion to a vague humanitarian exemption from the rule that migrant smuggling is a crime has also been included in the European Union’s Facilitation Directive of 28 November 2002 which explicitly allows member states not to impose sanctions if the aim of the person assisting non-European citizens to enter a European country illegally is ‘humanitarian’ in nature. ²⁰ A comprehensive study of the Facilitation Directive in 2018 found that it has compounded the legal uncertainty over what constitutes the crime of migrant smuggling by suggesting that the mere ‘facilitation of entry and transit’ can be a criminal act, regardless of whether it is motivated by the aim to generate profit from migrant smuggling. ²¹ The legal vagueness of the EU Facilitators’ Package regarding what is (not) a crime, when combined with the political salience of the migration issue, and the lack of an EU-level holistic approach and long-term solutions on migration and asylum policies, has led to an increase in the EU’s political and operational support for anti-smuggling activities as well as to considerable opposition from citizen initiatives. ²²

In many EU member states, the harassment, intimidation and formal criminalisation of individuals or groups who are accused of being ‘an accomplice’ ²³ in the crime of migrant smuggling is now well advanced. In Denmark, the Aliens Act makes it illegal for people to transport those without residence permits. In Italy, prosecutors have accused Tunisian fishermen and numerous refugee rescue workers of escorting migrant boats into Italian waters. The Italian Code of Conduct Law mandates NGO signatories’ acceptance of the presence of armed police on board their vessels. The mayor of Calais has banned the distribution of food to migrants. In France, the immigration law stipulates that anyone who ‘facilitates or attempts to facilitate the illegal entry, movement or residence of a foreigner in France shall be punished by imprisonment for five years and a fine of €30,000 (over $32,000)’. ²⁴ Under Greek law, ‘a wide spectrum of public actors is prohibited from providing services to undocumented migrants, and the majority of service providers (doctors, landlords, etc.) are obliged to report them to the authorities’. ²⁵ All these laws and legal interventions have been used to prosecute a range of individuals who provide medical and legal assistance, food, shelter and other forms of assistance of a regular or even a transitory nature to migrants. ²⁶

However, when courts have heard cases such as the Danish case mentioned in the Introduction, the accused were, not always, but often acquitted because of the legal ambiguity of the humanitarian clause. For example, several citizens living in the French–Italian border region were taken to court on charges of having aided undocumented African migrants to cross the border from Italy and for having sheltered them. This is illegal under French law. However, the law makes exceptions for nominally illegal actions for migrants in need, if the aid is given freely as a gift and without profit, and if the aid is necessary to protect their ‘dignity and physical integrity’. On these grounds, French courts have acquitted, for instance, the pensioner Martine Landry and the olive farmer Cédric Herrou of the accusation of having helped the wrong people for the wrong reasons. In both cases, the judges referred to the French ‘principle of fraternité’ which overrode other legal considerations. ²⁷

From legal category to conspiratorial fantasy: the smuggler narrative

The Migrant Smuggling Protocol, which entered into force in 2004, has enabled an interpretive community of migration management actors who were supported by populist politicians, judges and journalists. This interpretive community draws upon the smuggler narrative to delegitimise the time-honoured global practice of using local knowledge and social networks to cross borders without legal travel documents. The emphasis is on smuggling as ‘organised crime’, which implies that the state has a duty to crack down on these practices. What has become lost is the question of whether the state policy of not allowing certain people to cross the border is just or unjust. Smuggling – the secret and illicit transportation of someone who wants to enter another country – can have the positive meaning of rescue in the face of unjust laws. Especially in Europe, the smuggler narrative, which aims to delegitimise the smuggling of people, is set against the fact that until recently human smugglers were often considered moral heroes. This is certainly true for individuals who helped East Germans to cross the Berlin Wall, for example in the trunks of cars. Some of them were widely celebrated and were even awarded the German Federal Cross of Merit. ²⁸ The same is true, of course, for the courageous men and women who forged identity documents that allowed Jews to flee Nazi Germany. Therefore, in order to gain rhetorical force, the legal language of the protocol had to be transformed into a popular narrative with new heroes and different villains. And indeed, such a narrative emerged in the last couple of years with rising numbers of migrants attempting to cross the Mediterranean Sea and multiple search and rescue (SAR) operations, organised by individual states, the European Union, and NGOs.

Migrant smuggling is a complex policy issue that generates uncertainty and confusion about who is a perpetrator and who is a victim. The Migrant Smuggling Protocol provides an answer, considering ‘migrant smuggling’ a crime when committed for financial or other material benefit purposes. ²⁹ While some of the language in European state laws connects to this core value of the Migrant Smuggling Protocol of targeting people who profit from the vulnerability of migrants, many European states do not require the element of ‘financial or other material benefit’ in their laws regarding the crime of the facilitation of entry, transit or stay. ³⁰ While some states include a humanitarian exemption, these are often narrowly crafted. ³¹

Based on these variations and additional layers of regulations, policies and the practices of local officials, a smuggler narrative emerged. This narrative attributes and enacts new responsibilities and identities by introducing new ways of talking about migrants, migration facilitators (‘smugglers’), NGOs and states. It creates strong reasons to act and a sense of urgency on the part of states worrying about the safety and sanctity of their borders. The narrative is the result of entextualisation, which has been defined as the activity of detaching stretches of linguistic production from their original context with the aim of inserting them in new sites of discourse. ³² In this way, the language of ‘migrant smuggling’ has been lifted out of the context of international law and recontextualised in migration management narratives redefining the legality of actors and actions along the migration routes across the Sahara, the Mediterranean and Europe. Unlike international legal documents, which are always ambiguous and subject to constant reinterpretation, narratives of legality are ‘coherent, effective, and memorable’. ³³

The smuggler narrative started as a ‘reactionary rhetoric’ which maintains that the activities of those who want to improve the world by saving lives actually achieve, perversely, the opposite of their intentions. ³⁴ Applied to recent migratory movements from the Middle East and Africa to Europe, this is translated into the assertion that pro-migrant citizens’ groups and NGOs contribute to the rise of anti-immigrant sentiment in migrant-receiving states by making it easier for migrants to come to Europe. The narrative suggests that the humanitarianism of the activists is bound to backfire because it ultimately strengthens the business model of smugglers, increases the misery of migrants including the number of border deaths in the Mediterranean and antagonises the majority of voters in Western democracies. According to this reading, even if they do not know it, human rights activists are on the same side as human rights violators.

This powerful ‘perversity’ argument was introduced originally by Gil Arias-Fernández, former Executive Director of the European border control agency Frontex, in a presentation before a commission of the European Parliament. Arias-Fernández opposed Operation Mare Nostrum, the naval and air operation commenced by the Italian government in October 2013 to tackle the increased immigration to Europe and migratory ship wreckages off Lampedusa. ³⁵ His argument, which in the meantime has been refuted empirically, ³⁶ was that rescuing migrants means attracting ever more migrants. Contrary to empirical evidence, other Frontex officials continued to use the same argument, which was then widely circulated in interviews and reports, for example in the Financial Times or the German daily Die Welt. This rhetoric was used to justify repressive tactics not only against NGOs involved in SAR missions but also against individuals who are simply helping migrants to move or to stay.

The rhetoric about the perverse effects of humanitarian action was taken a crucial step further by allegations that refugee rescue workers operating in the Mediterranean play an ‘obscure’ role in facilitating migration from Africa and the Middle East. The central metaphor introduced by Italian politicians was that of a maritime ‘taxi service’ run by NGOs between the shores of Libya and Europe. ³⁷ Here the narrative moved from standard reactionary rhetoric to a full-fledged conspiracy theory. Conspiracy theorists deliberately exaggerate the agency and farsightedness of ‘evil’ actors. In their world, nothing happens by chance, nothing is as it appears and everything is closely interconnected. Most of the conspiratorial fantasies with regard to the role of citizen groups and NGOs in rescuing migrants originated in Italy. Bloggers and populist politicians played a key role. ³⁸ Subsequently, the prosecutor in Catania took up these charges and raised the suspicion that NGOs were colluding with smugglers within a shared business model. Later on, he had to admit that he had no proof for such far-reaching accusations. ³⁹

The smuggler narrative serves three goals of migration deterrence. It aims to delegitimise and remove pro-migrant NGOs and citizens as valid interlocutors of governments and international organisations; to undermine efforts to elicit public sympathy for refugees and migrants; and to provide a narrative of legality which ultimately allows public officials to prosecute, intimidate and harass medical professionals, concerned citizens, lawyers, aid workers and other individuals who provide assistance to refugees and migrants. All these moves have to be seen in the larger context of the rise of a neo-Westphalian world order, the reaffirmation of the discretionary control of states over their national borders, and the criminalisation of migration itself. ⁴⁰

The narrative represents NGOs (together with smugglers) as villains, migrants as victims and anti-smuggling operations by states as quasi-humanitarian interventions. It is important to understand that, like the Migrant Smuggling Protocol, the smuggler narrative as it exists in Europe does not portray migrants as villains. Rather, migrants and refugees are (wrongly) represented as hapless victims whose desperation is exploited by unscrupulous smugglers. Smugglers are the main villains of the story. In 2015, Italy’s then foreign minister Paolo Gentiloni even called people smugglers ‘21st century slave traders’. ⁴¹ Without taking into account local realities and traditions, or the irrational tightening of international border controls in recent decades, migration facilitators are increasingly depicted as ruthless criminals and violators of human rights. Against this backdrop, ‘Europe’ can project itself as the hero of the story who saves migrants from their true enemies. If migrants are the victims and smugglers the perpetrators, ‘Europe’s mission to police its borders becomes a humanitarian project to ‘protect’ the vulnerable migrant’. ⁴²

There are three important points here. One is that the smuggler narrative has its own rescue component. At least its currently dominant European version claims to be humanitarian. Instead of denigrating migrants directly, the European narrative prefers to set up pro-migrant NGOs and citizens as targets of state repression. Transcontinental migration movements are explained primarily by the activities of human smugglers, migrants are reduced to victims and human ‘cargo’, and pro-migrant groups engaged in advocacy or in private rescue missions are called accomplices in the alleged evil of human smuggling. The smuggler narrative is all about accomplishing the feat of defending the material and symbolic boundaries of the nation state while at the same time promoting the image of Europe as a normative power.

Second, another effect of the smuggler narrative is to systematically conflate two types of actors: (a) migration facilitators or ‘smugglers’ in places of origin who, in their own way, help migrants but who also profit from their desperation, and (b) European citizen initiatives involved in catering for incoming refugees in places of destination. ⁴³ While, by formal definition, the two groups have little in common in terms of motives, resources, practices and ethical ambitions, they both can be seen as facilitating the process through which non-European migrants approach European borders. From the perspective of governments, both groups are bolstering the agency of migrants and increase their survival fitness on the treacherous journey to and across Europe or other safe territories. Therefore, both EU citizens helping people in need and profit-oriented operations to circumvent border controls are charged with smuggling.

The third point worth emphasising is that the smuggler narrative is neither uniform nor completely stable. It circulates in different versions. Following the model of President Trump’s rhetoric, some European politicians have radicalised the smuggler narrative by assigning the role of the main villains of the story not to NGOs, but to migrants themselves, thereby giving up any humanitarian aspirations on the part of states. While Trump suggested shooting migrants at the US–Mexican border or having them eaten by alligators in moats to be built along the border, ⁴⁴ former Italian Interior Minister Matteo Salvini, for instance, has called African refugees, who were pulled from small boats in the Mediterranean Sea by private rescue ships, an unwelcome cargo of ‘human flesh’ – a term first introduced to dehumanise migrants in the influential 1973 dystopian and racist science fiction novel Camp of the Saints by Jean Raspail. ⁴⁵

Rescue narratives and struggles by law

We have seen that the smuggler narrative peddled by European countries has its own humanitarian pretensions. The narrative expands the definition of migrant smugglers and depicts them as greedy and unscrupulous, which they sometimes are, but not always. ⁴⁶ From the negative characterisation of the handlers and passeurs helping migrants to cross borders follows the self-legitimisation of tightening borders and suppressing smugglers as a form of humanitarian intervention on behalf of migrants. White men are once again claiming to save non-white women and men from other non-white men. The smuggler narrative is all too reminiscent of colonial abolitionists who came to Africa as humanitarians, to protect the human rights of Africans against the brutal Arab slave trade, only to institutionalise a more brutal one themselves.

By contrast, pro-migrant NGOs, activist scholars and ‘kind’ citizens supporting migrants are invoking a rescue narrative that rejects the normative and empirical claims entailed in the smuggler narrative. Most importantly, the rescue narrative rejects any justification for not helping people in distress at sea or held in camps where they are not safe from violence and humiliation. As Salvatore Martello, a former fisherman who became the mayor of the Italian Island of Lampedusa, explains: ‘The rule of the sea is: everyone must be saved. You certainly do not care about skin colour or religion. Rescuing people is sacrosanct’. ⁴⁷ In operational terms, this implies that migrants, once they have been saved in the Mediterranean, must be taken not to the nearest port, but to nearest ‘place of safety’. This term figures prominently in the International Convention on Maritime Search and Rescue, also known as the 1979 Hamburg Convention, and has repeatedly been invoked by Italian lawyers against the policy of closing Italy’s ports to rescue ships, as well as against pushbacks or European cooperation with the Libyan coast guard. ⁴⁸

The rescue narrative depicts migrants as victims of cruel states, and Western states as accomplices of rogue militias and repressive states in the Global South. This ethos of rescue is both cosmopolitan and local. Against the mainstream of Italian politics, Sicily and the Italian South, amongst many other regions, have been a hotbed of pro-refugee activism and advocacy in recent years. Scholars have pointed out that Sicilians often reject the very construction of migration from North Africa as a ‘problem’, partly because people in Tunisia and the Southern Mediterranean were for a long time seen as distant relatives and partners in economic exchange. Until the 1970s, Tunisians travelled legally to Sicily to work in agriculture and fishing, which was made possible by the lack of visa requirements. ⁴⁹ The more recent discursive and institutional establishment of the Mediterranean Sea as the civilisational fault line between Europe and the deeper South beyond Europe never seemed plausible to many citizens of Sicily and Lampedusa, who saw themselves as marginalised within Italy. ⁵⁰

It is only a small step from denaturalising state borders to defending resistance and civil disobedience against unjust immigration restrictions. Like the smuggler narrative, the rescue narrative points to possible radicalisations. Scholars have pointed out that, while the criminalisation of migrant solidarity needs to be criticised, it is important not to reproduce the racialised divide between Europeans who are accused of being complicit with people smugglers, and the ‘real’ smugglers. As Glenda Garelli and Martina Tazzioli have argued, the smuggler narrative that taints NGOs as accomplices of migrant smugglers should be appropriated by provocatively claiming that ‘We are all smugglers’ ⁵¹ – as long as states force people to use unconventional means to move away from bad places and bad rulers.

From a normative point of view, however, the rescue narrative popular among European NGOs also has a downside insofar as it tends to establish a divide between good Europeans and helpless Others, between rescuers and victims. ⁵² It is also problematic in that the term ‘rescuers’ is something reserved for civilian Western helpers such as Lisbeth Zornig Andersen even though, just as she was caught in a shifting legal landscape, so too are the traditional drivers who transport migrants across the Sahara. In this sense, the rescue narrative is still part of a problematic humanitarian politics of life that is unable to see migrants from the Global South as anything but victims. ⁵³

Ghostly presences: no exit from Agadez

We have seen that in Europe, governments are using the legal uncertainty created by overlapping laws and policies concerning what constitutes the crime of migrant smuggling to harass those who assist migrants by bringing legal charges that are often dismissed by courts. In Africa, the smuggler narrative has resulted in the pursuit of policies of containment such as readmission agreements, aid packages and pressuring transit countries, such as Niger, to criminalise the transportation of migrants as human smuggling. Local circular migration from other countries in West and Central Africa to Libya and Algeria is historically common and essential for Nigerien migrants. ⁵⁴ However, in a vicious circle the effects of smuggling narratives in the Sahara have enabled policies that are destructive to economic growth and, as a result, fuel the power of smugglers. The cruelty, injustice and futility of the ever-expanding European wall is playing out across the Sahara, where European deterrence policies have given rise to a booming business of migrant smuggling and the growth of dead-end transit cities such as Agadez in Niger.

In both Europe and Africa, we see a connection between legal ambiguity and the expansion of national and transnational police powers. As Walter Benjamin observed, the police intervene in cases ‘where no clear legal situation exists’, expanding its ‘nowhere-tangible, all-pervasive, ghostly presence’ ⁵⁵ far beyond the nation state. Some militias in Libya detain migrants or force them to work on farms, before expelling them from Libya, often acting as informal ‘border guards and auxiliaries of EU migration policy’. ⁵⁶ In our view, the coercive externalisation of border regimes, based on schemes of global cooperation between Western and African countries such as Sudan, Niger or Libya, are worrying contemporary examples of this ghostly presence of Europe outside of Europe.

To understand the violence of what Loren Landau has called strategies of forced ‘sedentarization’ of mobile African populations, ⁵⁷ it is worth exploring migration patterns originating in sub-Saharan Africa across the Sahara to Tripoli and Europe that have been ongoing for centuries. Although one should not directly connect the medieval camel caravans that transported gold and other commodities throughout the European colonial period to movement across the Sahara today, it is significant that the economic and social context of the trans-Saharan exchange remains the same. ⁵⁸ Agadez, an ancient city in Niger on the southern side of the Sahara, has become a ‘gateway to Europe’. ⁵⁹ In this context, a key role is played by populations living just south of the desert (the Bilad al-sudan), in particular Berber ethnic groups such as the Tuareg and the Toubou, who have for centuries dominated the trade in the movement of people, first as traffickers of slaves, then as people smugglers. This account echoes that of anthropologist Judith Scheele, who argues that Sahelian economies are based on long-standing survival strategies dependent on borderless regional migration. ⁶⁰ Given this history, European policies seeking to block migration to Europe are bound to interfere with the free movement of people and goods that is essential for the stability of the economic, political, cultural and ethnic networks supporting social life across the Sahara and the Sahel.

What becomes clear from scholarship about the Sahel (the term means ‘coast’ or ‘shore’ in Arabic) is that systems of social relations and patterns of exchange do not follow and have never followed the logic of the European nation-state system. Instead, the livelihoods of the different populations within Niger and throughout the region depend on close economic and cultural ties with communities in neighbouring states. What European policymakers seek to describe as a criminal migrant smuggling networks are more properly understood as commercial exchanges by ethnic groups such as the Toubou and the Tuaregs, who have been locked out of the formal economy and have survived since the 1970s by engaging in the illegal flow of subsidised goods such as fuel and foodstuffs from Libya and Algeria into Niger and neighbouring Mali. The economic necessity of these activities became more urgent after the 2011 civil war in Libya placed extreme socio-economic pressure on Nigeriens who depended on intra-regional economic migration for their livelihoods.

Agadez, a transit city along the medieval caravan routes, has long been a place where migrants gathered en route to their final destinations. Until a few years ago, large groups of migrants from all over Africa would congregate outside banks and money-transfer houses in Agadez before boarding trucks owned by passeurs (drivers) to begin their journey to Libya. Coming to Agadez from abroad for onward passage to Libya was perfectly legal. A passport of the Economic Community of West African States (ECOWAS) or another identification document was all a migrant needed to travel through Niger. There was nothing illegal about driving people on a Toyota pickup truck through the desert. Citizens of ECOWAS, which includes 15 states of West Africa, are free to enter and travel through any other ECOWAS state without a visa. According to Julien Brachet, ‘these drivers were not risking anything; they were not considered smugglers of people by any border police, but simply traders carrying passengers; such mixed transport of goods and people has long been the norm in the desert’. ⁶¹

It is only since 2015 that the journey has been criminalised as ‘human smuggling’ as a result of European Union policies that classify movement beyond the ECOWAS zone as illegal, and that seek to monitor the movement of people within ECOWAS through the collection and sharing of biometric data through the newly established, EU-funded West African Police Information System. ⁶² Most importantly, under EU pressure, Niger criminalised not only ‘migrant smuggling’, but even the ‘attempt’ to leave the country illegally. Besides illegal immigration, we now also have the category of ‘illegal exit’ from the national territory. ⁶³ Smuggling laws have undermined freedom of movement in the ECOWAS, destroying trans-Saharan trade and economies. What they have not effectively undermined is smuggling itself. People smugglers take new roads, avoiding Agadez, sometimes recovering older smuggling itineraries. A recent report points out that migrant smugglers ‘also now travel at night, because, as one of them explains, the Nigerien army rests after 6 pm’. ⁶⁴

The smuggling narrative has provided support for EU containment policies by undermining regional institutional frameworks that facilitate migration and transforming transit cities such as Agadez into laboratories of migration control. The European prioritisation of combating ‘illegal migration’ brought profound changes to ECOWAS policy on free movement, such that ECOWAS now works to control migration directed beyond its territory. In January 2008, when ECOWAS’s heads of state adopted a ‘common approach on migration’, irregular migration in the Sahara became, for the first time in history, a political issue influenced by European assumptions about West African migration and a bargaining chip with the European Union rather than a factor of development. ⁶⁵

The introduction of smuggling laws in Niger has undermined trust in local authorities through policing, including the detention of migrants. ⁶⁶ As policing and arrests have driven out local passeurs who have been transporting migrants for short-term labour across the Sahara that has been ongoing for centuries, other types of smuggling business have developed to fill the void. Stuck migrants overburden water supplies, electricity and garbage collection, while local populations in the Sahara have found their movement and economic opportunities restricted. The former gateway to Europe is transformed into ‘the southern border of Europe’ ⁶⁷ as border controls and deportations have become central elements in the relationship between African countries and the European Union in exchange for development aid.

Conclusion

In this article, we join those scholars who have been examining the emergence of the crime of migrant smuggling as a tool of migration management. ⁶⁸ At the same time, we have contributed something new by making a first step towards analysing the legitimising narratives of legality without which migration law would have no social force. These narratives are indispensable, but, at the same time, their status in modern society is ‘diffuse and unprivileged’, ⁶⁹ since no single community has a monopoly on the interpretation of the law. Thus, more research is needed to better understand the ways in which narratives of legality, created by interpretive communities, frame actors in different world regions as either ‘good’ or ‘bad’, ‘innocent’ or ‘illegal’. There is also more work to be done to improve our understanding of how the law operates through narratives in different local contexts to undermine human rights.

We have argued that narratives of legality are powerful rhetorical practices of persuasion without which EU migration containment policies would not work. The smuggler narrative and the rescue narrative are both articulations of a politics of life in that they draw on the basic distinction between saving and risking the lives of others. Both narratives add moral significance and emotional appeal to conflicting interpretations of the law. Conflicting interpretations abound because overlapping laws and policies have created legal uncertainty concerning what constitutes the crime of migrant smuggling and how to deal with it. The law is by no means a fixed text affirming shared values and thus able in principle to solve global problems, but a text that interacts with narrative practices that sometimes alter the meaning of the law. Because the law means different things to different people, it often intensifies the conflicts it is meant to solve. ⁷⁰ It is no surprise that in the tense relationship between migrants, pro-migrant activists and states, imputations of illegality are mutual, so that court battles are likely to continue.

The smuggler narrative demonises migrant smugglers as organised criminals who play with the lives of innocent migrants, and represents pro-migrant citizens and NGOs as guilty of playing into the hands of smugglers. We have seen the harmful consequences of exporting this narrative to a country like Niger, which has become one of the new southern laboratories of global migration containment. The rescue narrative depicts migrants as victims of cruel states, and Western states as accomplices of rogue militias and repressive states in the Global South. Given the ways in which the externalisation of migration control is being implemented, there is no doubt that the need to save migrants at risk will continue to shape the worldview of Western NGOs. At the same time, we already see narrative interventions that disrupt the rescue narrative at its edges in favour of a discourse that restores the idea that every human is the master of his or her own life, rather than depending on the benevolence of others. Once people enjoy more freedom of movement, they no longer need to be rescued. As the protagonist in one of J. M. Coetzee’s novels puts it: ‘I have escaped the camps; perhaps, if I lie low, I will escape the charity too’. ⁷¹

Acknowledgements

We wish to thank Maria Koinova, Chiara Marchetti, Stephan Scheel and the participants of an authors’ workshop that took place in June 2019 at the Centre for Global Cooperation Research in Duisburg, Germany, for offering helpful comments on earlier drafts of this article. Many thanks also to three anonymous referees whose comments and suggestions have significantly improved the article.

Disclosure statement

No potential conflict of interest was reported by the authors.

Funding

The article was written as part of a project funded by the European Union’s Horizon 2020 research and innovation programme under grant agreement No. 770330.

Additional information

Notes on contributors

Galya Ben-Arieh

Galya Ben-Arieh is a Professor of instruction in political science at Northwestern University, Illinois. Her research centres on refugee protection and the role of law in settlement and inclusion in host societies and comparative constitutional theory. She founded and directed the Center for Forced Migration Studies (CFMS), which was housed at the Buffett Institute from 2011–2018. Among her publications is Adjudicating Refugee and Asylum Status: The Role of Witness, Expertise, and Testimony (co-edited with Benjamin Lawrance; Cambridge University Press, 2015).

Volker M. Heins

Volker M. Heins is a permanent Fellow at the Institute for Advanced Study in the Humanities (KWI) in Essen, Germany, and a member of the Faculty of Social Sciences at the University of Duisburg-Essen. He is also a member of the executive board of the Centre for Global Cooperation Research and a co-founder of the Academy in Exile. His research focuses on the intersection between political theory and migration studies. Among his recent publications are ‘Can the Refugee Speak? Albert Hirschman and the Changing Meanings of Exile’, Thesis Eleven 158 (2020), and ‘Simple and Convoluted Trauma Stories’, Ethnic and Racial Studies, vol. 44, no. 3 (2021).

Notes

1 Andersen, “When Denmark Criminalised Kindness.”

2 Paz, “Between the Kingdom and the Desert Sun.”

3 Scheel, Autonomy of Migration?

4 See the ruling by the European Court of Human Rights, Hirsi Jamaa and Others v. Italy; and Polchi, “Strasburgo, l’Italia condannata per i respingimenti verso la Libia.”

5 Harold Koh, cited in Paz, “Between the Kingdom and the Desert Sun,” 21.

6 al-Haj Saleh, “Living in the Temporary.”

7 See Carrera, Allsopp, and Vosyliūtė, “Policing the Mobility Society”; Heins and Unrau, “Anti-Immigrant Movements.”

8 Cover, “Nomos and Narrative,” 4.

9 Ibid., 26. The concept of interpretive communities also features prominently in the work of American literary theorist Stanley Fish. See Fish, Doing What Comes Naturally.

10 See Fuller, Morality of Law.

11 See Fassin, Humanitarian Reason.

12 See Ticktin, “On Refugees and Innocence.”

13 Cover, “Nomos and Narrative,” 7.

14 For an analysis of what motivates migration from areas such as the Sahel, see Ribot, Faye, and Turner, “Climate of Anxiety in the Sahel.”

15 Trafficking and smuggling are often mentioned in one breath, as if these were related or similar crimes. See the critique in Kuschminder and Triandafyllidou, “Smuggling, Trafficking, and Extortion.” For more context, see Gammeltoft-Hansen and Aalberts, “Introduction.”

16 UNHCR, Convention and Protocol Relating to the Status of Refugees, Art. 31(1).

17 United Nations General Assembly, Global Compact, Objective 9 (25).

18 McAuliffe and Laczko, “Report Overview,” 8.

19 Ibid., 5.

20 European Union, “Council Directive 2002/90/EC,” Article 1(2). For more on the complex empirical realities of migrant smuggling, see Baird and van Liempt, “Scrutinising the Double Disadvantage.”

21 European Parliament, Fit for Purpose?, 10–11.

22 Ibid., 14.

23 European Union, “Council Directive 2002/90/EC,” Article 2(b).

24 Cited in Brown, “France Prosecuting Citizens for ‘Crimes of Solidarity.’”

25 See European Parliament, Fit for Purpose?, 37, referencing Greece, Law 4251/2014, Article 29(5) (6), and Article 30; Belgium, Article 77, Law of 15 December 1980, on access to the territory, residence, establishment and removal of aliens. France, CESEDA, Article L. 622-1 and L. 622-4, 3rd point, and in the Criminal Code Article 121-3, 1st subparagraph.

26 For more examples, see European Parliament, Fit for Purpose?, Annex 1.

27 Conseil Constitutionnel, “Décision no. 2018-717/718 QPC.”

28 Gedenkstätte Bautzen, “Ehemalige Fluchthelfer erhalten das Bundesverdienstkreuz.”

29 European Parliament, Fit for Purpose?, 10.

30 The element of financial or other material benefit is not required for the crime of facilitation of transit in Denmark and Hungary and is not required in the crime of facilitation of residence and stay in Belgium, Croatia, Denmark, Estonia, Finland, France, Greece, Latvia, Lithuania, Luxembourg, Malta, Romania and Slovenia.

31 Belguim and France (principle of “fraternité”) have informal humanitarian exemptions. Finland, Greece, Italy, Malta, Spain and the UK have narrow exemptions.

32 Bauman and Briggs, “Poetics and Performance as Critical Perspectives.”

33 Ibid., 73–4.

34 Hirschman, Rhetoric of Reaction, 11–42.

35 Padoan, “Perché danno fastidio le Ong che salvano i migranti in mare?”

36 Steinhilper and Gruijters, “Contested Crisis.”

37 For an analysis of the use of this metaphor, see Biondi, “Cos’è questa storia del servizio ‘taxi per migranti’ delle ONG.”

38 For references, see Camilli, “Perchè le ong che salvano vite nel Mediterraneo sono sotto attacco.”

39 European Parliament, Fit for Purpose?, 71.

40 Hopgood, Endtimes of Human Rights; Atak and Simeon, Criminalization of Migration: Context and Consequences.

41 Cited in Maher, “Historicising ‘Irregular’ Migration from Senegal to Europe,” 78.

42 Ibid., 89.

43 See Haaland and Wallevik, “Beyond Crisis Management?”

44 Shear and Davis, “Shoot Migrants.’”

45 Cited in Rame, “Salvini, notte al Cara di Mineo”; see also Stieber, “Camp of the Saints.”

46 See eg Achilli, “‘Good’ Smuggler: The Ethics and Morals.”

47 Cited in Rizzini, “Tutti pazzi per Totò Martello.”

48 Paleologo, “Gli obblighi di soccorso in mare.”

49 Giglioli, “Producing Sicily as Europe,” 414.

50 Ibid., 415–421. For an analysis of the narrative emergence of a ‘Fortress Europe’ in the 1990s and the constitution of a ‘sentinel Maghreb’ in the 2000s, see Perrin, “Regulating Migration and Asylum in the Maghreb.”

51 Garelli and Tazzioli, “Humanitarian Battlefield in the Mediterranean Sea.”

52 Ibid.

53 See Fassin, Humanitarian Reason, 246.

54 Hall, Selling Sand in the Desert.

55 Benjamin, “Critique of Violence,” 243.

56 Tubiana and Gramizzi, Tubu Trouble, 129.

57 Landau, “Chronotope of Containment Development.” See also Brachet, “Stuck in the Desert.”

58 Ben-Arieh, “Saharan Crossing.”

59 Tinti and Reitano, Migrant, Refugee, Smuggler, Savior, 148.

60 Scheele, Smugglers and Saints of the Sahara, 7. See also Austin, Trans-Saharan Trade in World History.

61 Brachet, “Manufacturing Smugglers,” 20.

62 Zandonini, “Biometrics: The New Frontier.”

63 Brachet, “Manufacturing Smugglers,” 25.

64 Tubiana, Warin and Saeneen, Multilateral Damage, 24.

65 ECOWAS, “Common Approach on Migration,” 3.

66 Global Detention Project (GDP), Immigration Detention in Niger.

67 Caritas International, cited in ibid., 7.

68 See, in particular, Carrera, Allsopp, and Vosyliūtė, “Policing the Mobility Society.”

69 Cover, “Nomos and Narrative,” 4, note 3.

70 See Kennedy, “Law, Expertise and Global Political Economy,” 112–13.

71 Coetzee, Life and Times of Michael K., 182.