Europe Has Criminalized Humanitarianism

Over the course of June and July, through a patchwork of frantic stopgap measures and pledges, European leaders fortified Europe’s borders along its southern perimeter in another push to restrict migration to the continent. This clampdown now also includes efforts to beach the last of the charity-run rescue boats that scoop up refugees out of the Mediterranean Sea—where more than 10,000 have perished since 2014.

The amalgam of restrictions, which effectively truncate the right to political asylum by limiting refugees’ access to Europe, has staunch supporters beyond hard-right populists. Many center-of-the-road liberals claim that further curbing refugee flows is the only way to arrest the nationalist right’s stunning ascent in Europe—and salvage what’s left of asylum rights before populists such as Italian Interior Minister Matteo Salvini and his peers manage to annul it completely.

It’s not yet clear whether paring down migrant arrivals will successfully halt the far-right’s rise. Either way, the plan raises deeper questions about just how much compromise Europe’s vaunted humanitarian values can withstand before they’re jeopardized entirely.

These prickly ethical questions about ends and means are being debated nowhere more furiously than in the European country that takes pride most in its tradition of moral philosophy, from Immanuel Kant to Jürgen Habermas. In one sense, the back-and-forth in Germany—in newspapers and on television, in universities and in pubs—may be a healthy means of coming to clarity on Europe’s present moral conundrum. But it also illustrates that, at a time of political crisis, Europe’s humanitarian principles aren’t nearly as inviolable as its citizens once believed.

As upside-down as it may sound, the debate takes place against the background of dramatically decreased numbers of refugees arriving by sea since 2015. This year, just 48,629 have come, about 5 percent of 2015’s total. At the same time, the high toll of refugee fatalities in the Mediterranean Sea remains unbroken: in 2018, 1,422 have perished so far. And simultaneously Europe’s far-right nationalists, such as Salvini, the Alternative for Germany (AfD) party, and Hungarian Prime Minister Viktor Orban, continue to surge in polls and espouse ever more radical measures to keep refugees out of Europe.

In response, the European Union unanimously agreed to triple spending for Frontex, its border and coast guard agency, with the mission of securing the EU’s external borders. The bloc is also prepared to spend generously to assist in the creation of reception camps, also referred to as disembarkation platforms, for asylum-seekers in countries outside of the EU in northern Africa. There are now far fewer qualms about paying off African governments to hinder emigration, by just about any means necessary.

Meanwhile, Italy’s new populist leadership insists that it will no longer serve as Europe’s refugee dump, a stance that involves violating international law by turning refugees away from its coasts, even those rescued by its own navy. The German government wants to add Algeria, Tunisia, Georgia, and Morocco to a list of so-called safe countries from which it will accept very few or zero refugees. Hungary has even taken the step of formulating a law making the aid of refugees in the country a punishable offense.

But on no single issue has the prickly humanitarian quandary over the fate of migrants and refugees—and Europe’s responsibility for them—been as sharply formulated as in the raging debate about NGO-linked rescue ships that have been active in the Mediterranean, primarily between Italy and Libya. For the past three years, the vessels—as many as 12 in 2017, now just five—have picked up refugees largely in international waters and delivered them to European ports, where they can apply for asylum. The group SOS Méditerranée says that during its two years of emergency sea rescues, it alone has rescued more than 29,000 migrants.

Italy has banned the aid organizations from operating rescue vessels in its territorial waters, and Malta denies them entry to its harbors when refugees are on board. Three ships are currently impounded in Malta, several more in Italy. In June, the EU joined in, saying that the rescue boat operators could be breaking the law and would do better to remain in dock, which until now they have done. Austria’s former interior minister called them “so-called helpers,” who he claimed were in cahoots with human traffickers.

As recently as a year ago, there was little fuss about the ships operated by charity groups such as Refugee Rescue (Northern Ireland), SOS Méditerranée and Médecins Sans Frontières (France), Jugend Rettet and Sea-Watch (Germany), Boat Refugee Foundation (Netherlands), and Save the Children (United Kingdom), among others. Many Europeans seemed to see them as high-minded Samaritans saving the lives of helpless seaborne migrants. “The NGOs are present to fill a lifesaving gap in the absence of a state-led response to reduce the loss of lives,” Federico Soda, Italy’s director of the International Organization for Migration, said earlier this year. In 2017, the German Protestant pastor Joachim Kretschmar said, “The Lord God rejoices in the real heroes who volunteer, courageously and selflessly stand up for life.”

But the sea rescue operations came under closer scrutiny when Italy and Malta began turning them away in June—thus forcing other EU countries to volunteer to take them. The controversy has now come to a head with the arrest in July in Malta of Claus-Peter Reisch, the captain of a German NGO ship named Lifeline. Reisch has been charged with entering Malta’s waters illegally with 234 migrants, whom the ship’s crew had picked up in waters off Libya on June 21.

The impounding of the Lifeline—as well as the new prevention measures—has rekindled a German debate about the ethics involved in the EU’s response to refugees headed for its shores: Are the rescue ships saving innocent lives because EU states have failed to do so? Or are they collaborating with the human smugglers who, it is claimed, deliver refugees right to the ships? And further: Is it just to turn back or not rescue refugees at sea in order to deter others from following them? And is there a legitimate basis for criminalizing the basic humanitarianism involved in saving migrants who might otherwise drown?

Germany’s ongoing conversation was triggered, in the aftermath of the Lifeline’s confiscation, by an opinion piece in the influential liberal weekly Die Zeit by Mariam Lau, the publication’s longtime commenter, herself the daughter of an Iranian political exile who settled in western Germany in the 1960s. In the piece, Lau, a specialist in migration issues, calls the drowning of refugees in the Mediterranean “a problem from hell, a political problem to which private maritime rescue operations can contribute nothing.”

Her argument against the NGO efforts rests on two foundations. First, Lau claims that the NGOs have made themselves the de facto allies of migrant smugglers, whose business model is inherently criminal and can involve murder, manslaughter, and ruthless deception of their own clients. Lau argues that the private rescue ships encourage ever more migrants to avail themselves of the traffickers’ services, resulting in more business for them, more migrants awaiting rescue on the sea (some of whom could die), and ultimately more applicants for asylum in Italy. “The more who are rescued, the more [refugee] boats come—it’s that simple and that fatal,” she says. Indeed, the vigilante recue ships, she argues, are part of the bigger problem as they undermine the deterrent that the risk of crossing the Mediterranean poses.

But Lau is also advancing a political argument, effectively endorsing the views of most of Europe’s centrist parties—namely, that Europe’s refugee inflow must be checked in order to keep the far-right at bay. The more who come, they say, the more votes Germany’s far-right AfD and its European peers will receive, she says.

Italy is the latest country to put nationalist parties into office, migration issues having played a decisive role in their victory. In Germany, the AfD now stands at 16 percent in opinion polls, up four points from the September 2017 vote—a development that few imagined possible. Anti-EU populists already occupy nearly a quarter of the seats in the European Parliament, and next year’s European elections may well increase their share. Lau condemns humanitarian moralists for “poisoning the political climate in Europe” by rejecting any kind of moral compromise and playing into the hands of those who want to do away with the right to political asylum completely and militarize Europe’s borders.

Lau’s commentary was an opening salvo over the relative priority of human rights in German, and by extension European, politics. The first response, by the Die Zeit editor Caterina Lobenstein, was printed alongside the original article; it countered that the NGOs aren’t affecting the calculations of the refugees who choose to risk everything, including their lives, to cross the Mediterranean. She points to evidence that, starting in 2016, when the rescue ships began operating, the number of desperate people crossing the sea has dropped. In 2014, when there were no private rescue boats, 200,000 people crossed for humanitarian reasons. So far, 2018 isn’t a quarter of that figure and last year was about two-thirds of it. (Others point out that this drop was itself the product of gradually tightening migration policies in the interim, including Italy’s closer cooperation with the Libyan coast guard.) Moreover, Lobenstein mentions that the NGOs never wanted to be in the rescue business in the first place but rather pleaded with the EU and international authorities to get in the water and address the humanitarian catastrophe at hand before jumping in to do it themselves.

In the daily Süddeutsche Zeitung, the journalist Wolfgang Luef weighed in by expressing shock that there was divided opinion in Germany on the matter of whether to help dying people or just leave them to perish. This is the “first step to barbarism,” he opined ominously, “the beginning of the end of the European idea. We cannot appeal to human rights, the Enlightenment, and humanism while at the same time criminalizing the rescue of drowning people.”

German philosophers, too, have joined the fray to help untangle some of the thorny ethical questions at stake. (In stark contrast to the United States, Germany still looks to academic philosophers as important arbiters of public debates.)

Most, including the political philosopher Matthias Hoesch from Münster University, agree that if the EU or coastal states are not prepared to save the lives of stranded migrants, then the charities act morally by doing so; it would therefore be a travesty to charge them with a crime. But some ethicist critics charge that the rescue ship operators go too far, by operating in a gray area entangling (legitimate) enforcement of humanitarian ideals and (illegitimate) political intervention that circumvents the democratic process, motivated by a belief that EU laws and practices do not properly enable people to apply for political asylum and receive protection from persecution and that would-be migrants therefore need assistance in claiming their rights under international law.

Hoesch counters that the democratic process can itself be illegitimate if it results in policies that have obviously immoral effects. “It is legitimate at certain times, in certain conditions to close borders,” he said. “But this is not the case in the way that right now is pursued in Europe.” He added: “It really does depend on whether there are legal ways for people seeking asylum to enter Europe. If there aren’t, and there doesn’t appear to be, then our laws are aiding the smugglers and causing people to drown at sea. In this case, the rescue ships are justified in helping them make it to Europe.”

Though philosophers in Germany may be heard, their words aren’t necessarily heeded. The new centrist position places an enormous emphasis on deterrence, which means thinning—though not by any means abolishing—political asylum in order to save it. And when deterrence includes undermining or even criminalizing the work of NGO rescue ships, it runs the risk that people will drown. The question now facing Germany, and Europe more broadly, is whether its mainstream parties, and their voters, are prepared to admit that death at sea is a means of addressing migration. Europe’s policy question may be solved, but its moral reckoning will carry on.