C Explanatory memorandum
by Mr Domagoj Hajduković, rapporteur
1 Introduction
1. This report was initiated by
a motion for a resolution (
Doc. 14380) on “Defining guidelines for international NGOs”, tabled
by Ms Deborah Bergamini (Italy, EPP/DC) and others following the
prosecution of foreign non-governmental organisations (NGOs) in
Italy for allegedly aiding illegal immigration by rescuing migrants
in the Mediterranean Sea and bringing them to Italian ports. Prosecutors
in Greece, Malta, Spain and other countries also started investigations
against NGOs in their respective jurisdictions. These prosecutions caused
wide criticism
Note and a public debate about what NGOs
are permitted to do and how boat migrants should be rescued in the
Mediterranean Sea.
2. The Committee on Migration, Refugees and Displaced Persons
decided to change the title of the report to “Rights and obligations
of NGOs assisting refugees and migrants in Europe”, in order to
clarify that this work would not attempt to regulate all NGOs, but
rather focus on those which assist refugees and migrants in Europe.
The rights and obligations of NGOs assisting boat refugees and migrants
are addressed in a separate chapter of this report.
3. The Parliamentary Assembly specifically addressed the need
to rescue boat migrants in distress at sea in
Resolution 1872 (2012) “Lives lost in the Mediterranean Sea: Who is responsible?”,
Resolution 1999 (2014) “The ‘left-to-die boat’: actions and reactions”, and
Resolution 2229 (2018) “International obligations of Council of Europe member
States to protect life at sea”. This report will not duplicate that
work. Instead, it shall provide further guidance for member States
as well as NGOs, who run the risk of criminal liability because
of their activities for the benefit of migrants and refugees. It
is important to recognise the huge value of the humanitarian assistance
provided by NGOs to refugees and migrants every day.
4. The political controversies over rescuing refugees and migrants
in the Mediterranean Sea have not lost their topicality. While prosecutions
of NGOs operating rescue ships often ended before domestic courts,
the European Court of Human Rights could clarify the obligations
of member States regarding migrants on board of rescue ships in
the case of
Rackete and Others v. Italy (application
No. 32969/19), which did not include an obligation to open ports
for disembarkation.
Note With the outbreak of the coronavirus
and the Covid-19 pandemic in Cyprus, France, Greece, Italy, Malta
and Spain in spring 2020, those countries declared health emergencies and
closed their ports for foreign vessels including migrant boats,
making the work of private migrant rescue ships very difficult.
Note
5. The committee held hearings with Mr Ruben Neugebauer, co-founder
of the German NGO Sea Watch, Mr András Léderer from the Hungarian
Helsinki Committee and with the President of Doctors of the World, Dr Philippe
de Botton. I very much regret that an exchange of views was finally
not possible with Ms Magdalena Majkowska-Tomkin, Division Director
for the Migration and Inclusion Unit and Mr Yervand Shirinyan, Deputy Director
of the Open Society Human Rights Initiative, who had offered to
address the committee. Therefore, I am grateful for the written
contribution by Mr Manos Moschopoulos, Senior Programme Officer
for the Protection and Rights of Migrants with the Open Society
Foundations (OSF) in Berlin. OSF is the most prominent NGO donating
globally huge amounts to other NGOs active on migration and asylum
issues.
Note
2 How to define NGOs
2.1 NGOs
are not a homogeneous category
6. As my predecessor as rapporteur,
Ms Daphné Dumery (Belgium, NR), stated in her introductory memorandum,
NGOs or civil society organisations are important in serving public
interests, but they are not a standardised category. Culturally
and historically there have been different approaches, ranging from
the individualistic Anglo-American “do-it-yourself” approach vis-à-vis
public authorities, to the absolutist control over the population
through “mass organisations” in communist and fascist regimes. Those
historical differences seem to influence some thinking still today.
7. This report focuses on NGOs which assist refugees and migrants
in a broad sense. However, many NGOs have several objectives or
purposes. Some are also active in politics and sometimes co-operate
with political parties or private lobbying. Besides purely humanitarian
objectives, NGOs can also have political, religious, scientific,
professional or any other objectives.
8. Just as political views diverge on migration issues, NGOs
set up by political parties and movements try to promote their opposing
views and action. In this context, for example, the Heinrich Böll
Foundation of the Green Party of Germany works to help migrants
and refugees and published in 2018 the report “Germany – Land of
Immigration”.
Note On the other side of the political
spectrum, right-wing political activists created an NGO which bought
in 2017 a rescue vessel to stop boat migrants leaving Libya.
Note
9. The International Catholic Migration Commission is a registered
non-profit organisation founded in 1951 and seated in Geneva.
Note International Orthodox Christian
Charities is an NGO seated in the USA and assists refugees since
1992 in Belgrade, 1994 in the Caucasus, 2003 in Syria and 2015 in
Greece.
Note Turkey’s Religious Affairs Directorate
(Diyanet) Foundation provides aid to displaced persons in Syria
Note and to Rohingyas in Bangladesh.
Note The NGO Islamic Relief USA provided
financial assistance to Palestinians in the Gaza Strip and, together
with the USA-based NGO Hebrew Immigrant Aid Society, humanitarian
aid to migrants in Greece.
Note
10. The President of the Protestant Church Council in Germany
decided in 2019 to finance an NGO ship for rescuing boat migrants
in the Mediterranean Sea.
Note Approximately 20 000 Armenian Orthodox
Christian refugees from Syria were assisted by the Austrian Red
Cross in 2018 to receive Armenian citizenship and settle in Armenia
through a project funded with € 300 000 from an Armenian Diaspora
NGO and € 3 million under the European Union Trust Fund.
Note
11. NGOs may be created and funded by wealthy individuals, on
whom they depend financially and who can determine their action.
NoteNote In addition, we find mixed forms
such as “quasi-autonomous non-governmental organisations” or quangos
which are private but have been initiated by State officials, receive
public funds or fulfil public tasks. Under Greek law, for example,
unaccompanied child refugees have the right to have a legal guardian.
NGOs with their staff are thus hired by Greek authorities as legal
guardians of unaccompanied child refugees, such as the Greek NGO
METAdrasi which created a guardianship network in 2014.
Note
2.2 NGOs
as institutional partners
12. Independent civil society organisations
have become important stakeholders in international co-operation.
For international organisations, civil society organisations are
strategic partners in the implementation of policies and practical
action, especially in countries where government and the public
sector fail to respect standards of human rights due to lack of
democratic control, corruption or inefficiency.
13. Our committee had the opportunity to hear several NGOs during
exchanges of views, for the preparation of this report, but also
for other reports as well as in the context of campaigns, seminars
and conferences. The Conference of INGOs of the Council of Europe
is the Council of Europe body which institutionalises regular co-operation
with the NGOs which are its members and engages in regular dialogue
with the Parliamentary Assembly. During the preparation of this
report, an exchange of views was held notably with Ms Anna Rurka, president
of the Conference.
14. The European Union depends very much on private institutions
and NGOs for the operation of EU-funded projects. From 2014-2017,
the European Commission committed an estimated € 11.3 billion for
projects implemented by NGOs.
Note The Asylum, Migration and Integration
Fund of the European Commission will provide € 21.5 million for
projects to support the integration of third-country nationals from
2020.
Note Other sectors of the European Commission
address the situation and legitimacy of NGOs working with migrants,
for instance in a recent study entitled “Crackdown on NGOs and volunteers
helping refugees and other migrants”,
Note which is relevant for this report
and was funded under the EU Horizon 2020 Research and Innovation
Programme’s budget of € 30 billion for the years 2018-2020.
Note
15. EU funding to NGOs assisting migrants has faced questions
about the appropriate use of such funds, for instance in a parliamentary
question of 24 January 2020 by Ms Elissavet Vozemberg-Vrionidi (MEP
from Greece, EPP) to the European Commission.
Note The European Anti-Fraud Office (OLAF)
of the EU Commission concluded in February 2020 an investigation
into the use of EU funds by an NGO for Syrian refugees and found that
nearly € 1.5 million of a project of € 19 million were misappropriated.
Note The EU Court of Auditors called
for more transparency and scrutiny of NGO funding in 2018.
Note
16. On the other hand, NGOs also helped to shed light on irregularities
in action for migrants by government officials. For instance, the
Greek NGO Solidarity Now called in 2017 for investigations into
the misuse of EU funds for refugees in Greece which apparently had
not benefited those refugees.
Note NGOs also reacted to cases of sexual
exploitation of displaced persons by NGO staff, such as the European
Confederation of Relief and Development NGOs (CONCORD) in its statement
in February 2018.
Note
2.3 Activities
related to both policies and practise
17. Since 1994 the European NGO
Platform on Asylum and Migration (EPAM) serves as a forum for NGOs seeking
to contribute to the development of asylum and migration policy
in the European Union. It has 29 members and 4 observers.
Note EPAM meetings are co-chaired by
the Churches’ Commission for Migrants in Europe (CCME) and the United
Nations High Commissioner for Refugees (UNHCR), and its working
groups on asylum and migration are chaired respectively by the European
Council on Refugees and Exiles (ECRE) and the Migration Policy Group
(MPG) in Brussels. ECRE has 104 member NGOs, and MPG describes itself as
a “think-and-do-tank” which qualifies for research funds by the
European Union.
18. Many NGOs consider themselves “human rights defenders”, a
term widely used in international law and politics, which refers
to UN General Assembly Resolution 53/144 of 1999 containing the
Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized
Human Rights and Fundamental Freedoms.
Note
19. In the light of all these considerations, the term NGO is
used in this report in order to describe non-governmental organisations
as well as private organisations linked to civil society groups,
religious communities, political parties or other interest groups
in the field of migration. While it is virtually impossible to categorise
and distinguish them, most of these NGOs are typically tax-exempted
non-profit organisations or charities, whose action and budget are
to some extent monitored by tax authorities of member States.
3 Fundamental
rights of NGOs
20. Under Article 11 of the European
Convention on Human Rights and Article 22 of the International Covenant
on Civil and Political Rights, everyone has the right to freedom
of association which allows NGOs to be created. Under the case-law
of the European Court of Human Rights, the margin for restriction
of this right is very limited.
Note
21. The European Convention on the Recognition of the Legal Personality
of International Non-Governmental Organisations (ETS No. 124) stipulates
that the legal personality and capacity of an NGO shall be recognised
in other member States, if that NGO has “a non-profit-making aim
of international utility” and unless its activity “contravenes national
security, public safety, or is detrimental to the prevention of
disorder or crime, the protection of health or morals, or the protection
of the rights and freedoms of others, or jeopardises relations with
another State or the maintenance of international peace and security”.
The purpose of this convention is to enable NGOs to act as a legal
person in another State and, for instance, sign contracts, acquire rights,
hold bank accounts or appear as a party before a court. An international
NGO can hence enjoy human rights and freedoms in the country of
its headquarters as well as abroad.
22. NGOs have the possibility to appear as a party in legal proceedings
before the European Court of Human Rights, but also to be heard
as an expert witness or to make submission concerning a case or
the implementation of a judgment by the Court.
Note NGOs may also assist refugees and
migrants in bringing their cases to the European Committee of Social
Rights which monitor the Council of Europe’s European Social Charter
(ETS Nos. 035 and 163), which also contains rights that are relevant
for refugees and migrants.
Note
23. In its Resolution 22/6 of March 2013 entitled “Protecting
human rights defenders”, the UN Human Rights Council called on UN
member States to ensure that no law should criminalise or delegitimise
activities in defence of human rights on account of the origin of
funding thereto. The Parliamentary Assembly addressed human rights
defenders in its
Resolution
1660 (2009) and
Resolution
1891 (2012) “The situation of human rights defenders in Council
of Europe member States”,
Resolution
2095 (2016) “Strengthening the protection and role of human rights
defenders in Council of Europe member States”, and
Resolution 2225 (2018) “Protecting human rights defenders in Council of Europe
member States”.
24. The Expert Council on NGO Law of the Conference of INGOs of
the Council of Europe prepared Guidelines on Protecting NGO Work
in Support of Refugees and Other Migrants.
Note I very much welcome these Guidelines
and invite member States to take them into account.
4 General
obligations of NGOs
25. Recommendation CM/Rec(2007)14
of the Committee of Ministers on the legal status of non-governmental
organisations in Europe
Note prescribes in great detail the requirements
for NGOs to have a legal status or legal personality, which aims
for transparency of NGOs and clarity of their rights and obligations. Paragraph
45 of this recommendation stipulates that foreign NGOs can be required
to obtain approval to operate in the host country, unless the European
Convention on the Recognition of the Legal Personality of International
Non-Governmental Organisations applies.
26. The European Commission for Democracy though Law of the Council
of Europe (Venice Commission) adopted a number of opinions on national
legislation targeting foreign NGOs or NGOs which receive funds from abroad.
NoteNoteNoteNote
27. The Conference of INGOs of the Council of Europe set up an
Expert Council on NGO Law, which published in November 2018 a report
by Mr Dragan Golubović examining international standards relating
to the permissible scope of reporting and disclosure requirements
for NGOs.
Note The Expert Council published its Review
of developments in standards, mechanisms and case law related to
NGOs – 2017-2019,
Note which was presented to the committee
by its author Mr Jeremy McBride on 29 January 2020.
28. The Assembly adopted
Resolution
2096 (2016) “How can inappropriate restrictions on NGO activities
in Europe be prevented?” and
Resolution
2226 (2018) “New restrictions on NGO activities in Council of Europe member
States”. A new report is currently being prepared by the Committee
on Legal Affairs and Human Rights on restrictions on NGO activities
in Council of Europe member States.
29. NGOs typically have a tax-exempted non-profit status as a
charity.
Note This normally includes the obligation
to abstain from commercial activities. Nevertheless, Recommendation
CM/Rec(2007)14 of the Committee of Ministers on the legal status
of non-governmental organisations in Europe stipulates that “NGOs should
be free to engage in any lawful economic, business or commercial
activities in order to support their not-for-profit activities”.
Such profit-oriented activities fall under tax obligations.
30. In February 2019 the Federal Fiscal Court of Germany decided
that the NGO “ATTAC” did not qualify for tax exemption under German
law, because it pursued political campaigning instead of public
interest work such as public education.
Note As taxation is a national competence
of member States, including within the European Union, this decision
of the highest fiscal court in Germany may have implications for
similar decisions by national tax authorities in other member States.
NGOs assisting migrants and refugees might, for instance, be obliged
to distinguish in their tax declarations between their expenses
for political advocacy and those for humanitarian assistance.
31. NGOs must comply with tax obligations like anybody else. By
granting tax privileges to NGOs, their work is
de facto supported
by member States, corresponding to applicable income tax rates of
up to nearly 60% in a few countries in Europe.
Note It is important to recall that tax
law must not be used as a tool to restrict unduly the activities
of NGOs, in particular if such restrictions are politically motivated
and discriminatory.
32. Many international organisations and NGOs work extensively
with volunteers.
Note The European Commission looked at
policy frameworks for volunteer work in 2011.
Note However, most volunteers do not
have an employment contract and generally receive no remuneration.
These volunteers are often exposed to high risks for their health
and their safety, be it in refugee camps or rescue vessels.
33. In 2012, the European Youth Forum produced a Charter on the
Rights and Responsibilities of Volunteers, which stipulates that
every volunteer has the right to social protection during their
volunteering activity, in the form of health care and liability
insurance. In addition, all volunteers have the right to reconcile their
volunteering activity with their private and working life and are
entitled to refuse tasks that would go against their beliefs and/or
convictions.
Note In addition, health and social protection
should also continue after volunteering, when burn-out and depression
can happen.
Note
5 Criminal
liability of NGOs
34. As NGOs have legal personality,
they and their members can in principle be held liable for any violation of
the law, including criminal law. In addition, individuals working
for an NGO can be held liable for any violation of the law committed
by them in the framework of that NGO.
35. In 2000, the United Nations General Assembly adopted the Protocol
against the Smuggling of Migrants by Land, Sea and Air, supplementing
the Convention against Transnational Organised Crime. Article 3
of this protocol defines smuggling of migrants 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.”
Its Article 6 requires States to punish by law the smuggling of
migrants, the producing and providing fraudulent travel or identity
documents for the purpose of smuggling of migrants, and the enabling
of illegal residence. Smuggling of migrants without financial or
other material benefit would not therefore qualify as a criminal
offence under the protocol, but the definition of “other material
benefit” may leave States a margin of discretion.
36. Whereas national criminal laws may vary considerably,
Note common standards were set for EU
member States under EU Directive 2002/90/EC on defining the facilitation
of unauthorised entry, transit and residence as well as under Framework
Decision 2002/946/JHA on the strengthening of the penal framework
to prevent the facilitation of unauthorised entry, transit and residence.
EU law makes a criminal offence of “assisting a person who is not
a national of a Member State to enter, or transit across, the territory
of a Member State in breach of laws of the State concerned on the
entry or transit of aliens”, but “allows Member States to exempt from
liability those cases of facilitating illegal entry that were committed
for humanitarian purposes.”
37. The UN Office on Drugs and Crime estimated that approximately
370 000 migrants were smuggled into the European Union in 2016,
paying smugglers between US-$320 million and 550 million.
Note When hundreds of thousands of migrants
arrived in the European Union in 2016, legal scholars argued that
smuggling prohibition must be more narrowly drafted in order to
avoid the criminalisation of “humanitarian smugglers”.
Note The Platform for International Cooperation
on Undocumented Migrants (PICUM) has published a research study
on the subject, describing “The Effects of EU's Anti-Smuggling Policies
on Civil Society Actors” from 2016 – 2017.
Note
38. The European Parliament also commissioned a study on whether
EU law would unduly criminalise humanitarian assistance to irregular
migrants
Note and adopted its Resolution of 5
July 2018 on guidelines for Member States to prevent humanitarian
assistance from being criminalised.
Note In 2018 the Fundamental Rights Agency
of the EU published a note on “Fundamental rights considerations:
NGO ships involved in search and rescue in the Mediterranean and
criminal investigations”.
Note The Expert Council on NGO Law of
the Council of Europe INGO Conference published in December 2019
its report by Ms Carla Ferstman entitled “Using criminal law to
restrict the work of NGOs supporting refugees and other migrants
in Council of Europe member States”.
Note
39. Human rights defenders have criticised prosecution and criminal
penalties against NGOs which assist refugees and migrants.
Note Mr Salam Kamal-Aldeen, an Iraqi-Moldavian
citizen living in Denmark, who founded, and worked in Greece with,
the NGO Team Humanity Denmark helping boat migrants, filed in April
2019 an application against Greece before the European Court of
Human Rights.
Note
40. At the same time, NGOs can be used as a front for money laundering
and even for terrorist financing, as described in a report prepared
for the Council of Europe in 2013.
Note The OECD prepared in 2008 a study
on Abuse of Charities for Money-Laundering and Tax Evasion.
Note
41. While an NGO could be used as an umbrella for collecting and
transferring money from migrants, its creation and registration
necessarily exposes such NGO to scrutiny by public authorities and
therefore poses additional risks for criminals. As statistics are
not available, it is difficult to measure the size of such abuses, but
it seems reasonable to assume that they are limited to very few
cases in relation to migrants and refugees.
42. However, numerous NGOs have been created to provide migrants
and refugees with humanitarian aid, medical support, legal assistance
and other help. Without them, national authorities would be overwhelmed and
incapable of taking the necessary care of migrants and refugees
in their country. It is therefore important not to discredit this
work of NGOs by putting them under a general suspicion of doing
illegal activities.
6 NGOs
rescuing migrants at sea
43. The number of boat migrants
in the Mediterranean Sea continuously decreased since 2015, as did
the number of dead or missing migrants crossing the Mediterranean
Sea.
Note Nevertheless, NGOs remain essential for
rescuing boats in distress, although they often face a number of
difficulties.
44. The Fundamental Rights Agency of the EU published an overview
of NGO ships involved in search and rescue in the Mediterranean
and criminal investigations from 2015 to 2018
Note and up-dated these figures until June
2019.
Note Twelve NGOs have been operating
vessels and one airplane in the Mediterranean Sea, all of which
have been subject to legal actions or stopped their activity due
to legal pressure. The reason for their prosecutions is generally
the fact that they brought migrants to EU member States, instead
of bringing them back to Libya or another country along the southern
Mediterranean shore.
45. Mr Ruben Neugebauer, Spokesperson and co-founder of the NGO
Sea Watch in Berlin, informed the Committee on Migration, Refugees
and Displaced Persons in June 2018 in Strasbourg, that Sea Watch
had originally been created as a political NGO for observing the
EU’s external action regarding migrants, not for rescuing migrants
from the Mediterranean. Otherwise, it would have been called “sea
rescue”. However, the current situation had compelled them to rescue
migrants and transport them to safe ports in Italy, Malta or Spain.
Sea Watch operated the Sea Watch 3 vessel and
an airplane which flew along the Libyan coast to detect migrant
boats not equipped for the high seas or already in distress. The
airplane, which had been funded by a donation of € 200 000 from
the Protestant Church in Germany, was finally prohibited by the
Maltese authorities from flying into the airspace over the Libyan
coast.
46. The chief prosecutor for the Italian port city of Catania
stated in April 2017 that he had evidence that NGOs were directly
working with human smugglers to bring migrants into Italy.
Note This statement was finally withdrawn
before the defence committee of the Italian Senate in May 2017.
Note
47. In 2017, Italy drew up a code of conduct for NGOs undertaking
activities in migrants’ rescue operations at sea.
Note NGOs not signing, or complying with,
this code would be excluded from rescue operations by Italy. Some
NGOs refused signing the code and criticised it, because it recognised
the search and rescue activities of the Libyan coast guard.
Note Instead, a voluntary code of conduct
for search and rescue operations was drawn up by NGOs
Note and legal arguments were voiced
against the Italian code.
Note
48. NGOs can carry out search and rescue activities in international
waters and disembark rescued persons at the nearest safe port, in
accordance with international maritime law. Nevertheless, NGOs should
co-ordinate their work with search and rescue operations being carried
out by the authorities.
49. The European Commission and Frontex approved the Italian code.
Note In his reply to a question from
the European Parliament, Commissioner Avramopoulos replied on behalf
of the European Commission on 16 January 2018, that the European
Commission supported strengthening co-ordination of all actors involved in
search and rescue activities, within the respect of applicable international
law, and believed that more effective coordination in this field
was instrumental to prevent loss of life at sea, but the European
Commission did not plan to adopt any “European code of conduct”
under “a Community procedure”.
Note
50. This action by Italy and the European Commission was criticised
in 2017 by Mr Felipe González Morales, Special Rapporteur of the
UN Human Rights Council on the human rights of migrants and Mr Nils Melzer,
Special Rapporteur of the UN Human Rights Council on torture and
other cruel, inhuman or degrading treatment or punishment, who jointly
stated that this action threatened life and breached international standards
by condemning people to face further human rights violations in
Libya.
Note Ms Agnès Callamard, Special Rapporteur
of the UN Human Rights Council on extrajudicial, summary or arbitrary
executions also criticised: “Through this new code of conduct, Italy
and the European Commission are imposing procedures that could reduce
the ability of NGOs to carry out life-saving activities. This could
lead to more deaths at sea, and the resulting loss of lives, being
foreseeable and preventable, would constitute a violation of Italy’s
human rights obligations.”
Note
51. In August 2017, the vessel
Iuventa operated
by the German NGO Jugend Rettet (youth rescues)
Note was impounded in the Italian port
of Trapani for assisting illegal immigration and collusion with
human smugglers, a decision upheld by the Supreme Court of Italy
in April 2018.
Note At the same time, the crew of
Iuventa received a
human rights award of € 50 000 from the Paul Grüninger Foundation
in Switzerland in recognition of their life-saving work.
Note
52. In 2019, civil society activists tried to initiate action
with the Prosecutor of the International Criminal Court implicating
the European Union and member States’ officials and agents in crimes
against humanity due to their migration policies in the Central
Mediterranean and Libya since 2014.
Note
53. In the case of
Hirsi Jamaa and Others v. Italy,
Note the European Court of Human Rights
found a violation of Article 3 of the European Convention on Human
Rights, noting that migrants in Libya in 2009 could not apply for
asylum and were systematically arrested and detained under inhuman
conditions. On 29 January 2019, the Court granted an interim measure
concerning the vessel
Sea Watch 3 with 47 migrants
on board anchored outside of Syracuse, Sicily, in Italian waters,
but did not grant the applicants’ requests to be disembarked. It requested
the Italian Government “to take all necessary measures, as soon
as possible, to provide all the applicants with adequate medical
care, food, water and basic supplies as necessary”. As far as 15 unaccompanied
minors were concerned, the Government was requested to provide adequate
legal assistance (namely legal guardianship).
Note
54. However, the miserable situation of migrants on board of an
NGO vessel for a longer period of time and uncertainty must be avoided.
The code of conduct by Italy and the one drafted by some NGOs referred
to above do not seem fundamentally contradictory, given that the
UN Protocol against the Smuggling of Migrants by Land, Sea and Air
as well as EU Directive 2002/90/EC allow exemption from liability
those cases of facilitating illegal entry that were committed for
humanitarian purposes. Only illegal smugglers would not qualify
for such a humanitarian exception.
55. Due to the Covid-19 pandemic, Mediterranean ports have been
closed for foreign vessels, as have been land borders for foreign
persons. The rescue ship
Alan Kurdi of the
German NGO Sea Eye was unable to enter Italian ports after having
rescued boat migrants leaving from Libya. Those migrants have subsequently
been transferred onto a larger Italian vessel and remained under
quarantine, waiting for a decision on their destination.
Note Another NGO stopped its rescue ship
due to the pandemic.
Note I welcome the statement by the Commissioner
for Human Rights of the Council of Europe, Ms Dunja Mijatović, who
said that even during the coronavirus crisis, member States should
ensure rescue at sea and allow safe disembarkation.
Note
7 Conclusions
56. NGOs are vital partners for
member States in coping with the arrival of migrants and refugees
as well as their integration. Without such voluntary action, virtually
all States would be overwhelmed. It is therefore important to recognise
the valuable contribution of NGOs assisting refugees and migrants.
57. Member States should respect the rights of foreign NGOs. NGOs
are free to receive funds, also from abroad, but should be transparent
about their funding and work. Council of Europe standards should
be respected by member States.
58. Humanitarian aid should be tax exempted as well as the humanitarian
work by NGOs. This is particularly evident where humanitarian aid
is financed by donations from abroad and serve a country which should
not impose tax on such funds. Humanitarian assistance can be distinguished
from commercial activities or political advocacy of NGOs.
59. While NGOs may be held liable, for instance when migrants
suffer through their actions, it is inadmissible to promote general
suspicion against NGOs of colluding with human traffickers and smugglers.
At the same time, NGOs must not overstep legal boundaries due to
their desire to help migrants arrive in safety in Europe. They should
be aware of often cruel and illegal actions by smugglers and co-operate
in bringing them to justice.
60. Political parties and politicians should avoid exacerbating
national controversies and divisions in society about migrants and
the role of NGOs. Migrants and NGOs cannot be used as scapegoats
for societal problems and as a diversion from other political shortcomings.
Europe must recognise the humanitarian needs of migrants and the
humanitarian work of NGOs in this field.
61. NGOs are particularly essential in assisting migrants and
refugees arriving in front-line States, and thus in assisting also
front-line States. The Covid-19 pandemic is an obstacle to the disembarkment
of boat refugees, in addition to the lack of any progress regarding
European policies on how to share the burden of front-line States.
Given the possibly long duration of the Covid-19 pandemic, NGOs
must be able to rescue boat migrants in distress at sea, who are
only a small number compared to the number of irregular migrants entering
European States and who can be registered and identified as well
as medically tested upon disembarkment.
