Hypocrisy, Cynicism or Just Tokenism?

The (In)Compatibility of Partnership and Whole-Of-Society Approaches with the Criminalisation of Civil Society Groups Who Support Refugees and Migrants

Forum on the Partnership Principle in the UN Global Compact on Refugees

Contribution by Carla Ferstman, Professor of Law at the University of Essex and member of the Council of Europe’s Expert Council on NGO Law

13 May 2022

Introduction

The Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) are non-binding instruments. They are designed to encourage solidarity and international cooperation in the response to the plight of refugees and other migrants. Both compacts underscore the importance of partnerships for the realisation of the ambitious goals contained within them. The GCR sets out a “multi-stakeholder and partnership approach” whereas the GCM refers to a “whole-of-society approach”, making clear that the challenges the compacts are designed to tackle require collaborative and multi-dimensional responses to be addressed effectively.

My contribution to the 2nd ASILE Forum looks behind these ambitious statements of principle about partnership and whole-of-society approaches and examines what they mean for nongovernmental organizations (NGOs). I argue that the tacit toleration of the criminalisation of NGOs and solidarity movements providing humanitarian assistance and associated restrictions to civil society space, is incompatible with the partnership and whole-of-society approaches embedded in the GCR and GCM. Member States and international organizations that have ushered in these compacts and remain committed to their success should be doing more to condemn such criminalisation and to embed a commitment to strengthening civil society space into the ongoing work to implement the compacts.

What the Two Global Compacts Say about Partnerships

A central role for NGOs to work interactively with governments to find responses to the challenges and the opportunities posed by international migration was recognised as essential in the precursor to the two Compacts – the New York Declaration for Refugees and Migrants and its annex, the Comprehensive Refugee Response Framework (CRRF) adopted at the September 2016 UN Summit for Refugees and Migrants.

But for the most part, the GCR and GCM are silent on the role, if any, of NGOs in policy formation, decision-making or in the monitoring and oversight of the implementation of decisions. On one reading, this is something the GCR and GCM do not really address; the compacts recognise the importance of partnerships as a matter of principle but do not engage with what partnerships entail or require; there is no vision of civil society engagement one way or the other. On another reading, the GCR and GCM are putting forward a narrow, state-centric vision of civil society partnerships. Partnerships are purely transactional; NGOs and other humanitarian actors are perceived simply as implementers of governmental policies and as such they reinforce power relations and are not designed to transform them. My view is that the GCR and GCM are doing the latter – they embrace a vision of civil society as mere implementers or supporters of government policies, whether explicitly or implicitly.

The NGO joint statement to the High-Level Officials Meeting in December 2021, said this about the GCR: ‘funding silos, shrinking space for civil society in many contexts, restrictions, and exclusionary decision-making structures limit the partnerships that would allow national and refugee-led NGOs in refugee-hosting countries to engage with their own host governments directly on questions of national refugee policy and practice, and to participate in global decisions that affect refugees and their hosts.’

And, in relation to the GCM, commentators such as Rother have lamented ‘the unilateral actions of national governments who often did not consult other states and even less so migrant civil society, [which] stood in stark contrast to the “whole-of-society approach” laid out in the ‘vision and guiding principles’ of the GCM.’

Both the GCR and GCM underscore that to be effective in supporting refugees and migrants, there is a need to engage all types of stakeholders, including NGOs. But, this need for states to truly engage, to take on board others’ views, perspectives, ideas and approaches, is not being acted upon. Partly, this is because both the GCR and GCM were so difficult and politically contentious to progress; it was hard enough to get States to agree, it was not likely that they would agree to a real plurality of voices to guide the formation and implementation of policies understood to be integral to their sovereignty.

Policymaking and implementation related to the reception and treatment of refugees and migrants continues to be based mainly on self-referential, securitised governmental decisions, which are often bent on minimising and externalising commitments and accompanied by negative and polarising rhetoric toward refugees and migrants in domestic politics. As a consequence of this, destination states, particularly those in the West, have largely refrained from engaging meaningfully with refugee-led organizations, solidarity networks and with NGOs with strong protection, monitoring and advocacy remits. Simply put, they are not interested in diverging from their securitised agendas.

Despite international refugee law and human rights law, states’ choices about what actions to take or not to take in relation to refugees and migrants are securitised choices, based on national interests and internal politics. Somewhat cynically, I would suggest that for these states, international law has been something to manoeuvre around, not something to seek to promote or to implement. More often than not, particularly in destination countries in the West, decisions about border management, refugee status determination, access to support and assistance and permission to work and to integrate have had very little to do with international law or with means or capacity; it is all about state policy on border security.

Consequently, when solidarity movements and NGOs are coming to lend support or to fill the gaps left by states’ inaction – they are not addressing limitations of means or capacity, but tackling deliberate holes left by hostile reception policies and minimal political will. This distinction, between NGOs who are assisting states in the fulfilment of state policy, and NGOs who are filling gaps left by states who have actively decided not to act, or to act in a very specific or limited way, underscores the challenges of a veritable “multi-stakeholder and partnership approach” or “whole-of-society approach”.

Criminalisation of solidarity is the unhappy outcome of states trying to put off NGOs and solidary movements who are trying to fill gaps states don’t want to be filled.  Many states in Europe and in the Americas continue to criminalise and otherwise restrict the civil society space of those NGOs that are perceived to pose the greatest challenge to their refugee- and migrant-restricting policies. Delgado Wise puts it, the ‘independent human rights and class-orientated grassroots organizations with a counterhegemonic potential, such as migrant organizations and networks, migrant advocacy NGOs, trade unions, peasant movements, faith organizations, and critical academia.’ This ‘pick and choose’ approach to partnership which is only adhered to as long as it aligns with states’ vested interests, is at best, a tokenistic implementation of this aspect of the Global Compacts. At worst, it is a cynical and hypocritical stance that ensures that the laudable goals of the compacts remain solely paper commitments.

As the GCM civil society action committee noted in relation to cooperation and partnership with civil society, ‘migrant-allied [civil society organizations] CSOs and human rights defenders have been criminalized for their humanitarian work or face onerous administrative or financial burdens on our operations. These obstacles complicate our ability to carry out our work, which is crucial to the accomplishment of GCM objectives.’

Criminalisation as the Antithesis of Partnership

Despite their reliance on partnerships with NGOs and other stakeholders, neither of the compacts comment on the importance of safeguarding civil society space to fulfil the texts’ objectives. Further, neither compact indicates clearly and unambiguously that the criminalisation of NGOs and human rights defenders who support refugees and other migrants is unlawful and counters the objectives of the compacts.

The GCR simply indicates that it is guided by relevant international human rights instruments, international humanitarian law, as well as other international instruments as applicable (at para. 5), and cites to a number of instruments, including the Protocol against the Smuggling of Migrants, which supplements the UN Convention against Transnational Organized Crime.

The Smuggling of Migrants Protocol requires State Parties to criminalise the smuggling of migrants, and though it is stipulated in the Protocol (at Art. 3(a)) that only acts undertaken ‘in order to obtain, directly or indirectly, a financial or other material benefit’ constitute migrant smuggling, in practice, many destination states have either ignored Art. 3(a) and criminalised the purely humanitarian acts of NGOs who have helped vulnerable refugees and other migrants to safety, or characterised the types of acts that can be understood as ‘purely humanitarian’ overly narrowly. This is despite the clarifications made by the UN Office on Drugs and Crime (at p. 18), that:

The inclusion of financial or other material benefit as a constitutive element of the migrant smuggling crime is a clear indication of the Smuggling of Migrants Protocol’s focus on tackling those – particularly organized crime groups – who seek to benefit from smuggling migrants. This is also confirmed in the travaux préparatoires of the Protocol, which states that ‘the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties.

The language in the GCM is more detailed but still similar. As part of the objective of saving lives and establishing coordinated international efforts on missing migrants, the signatories commit (at para.  24(a)) to:

develop procedures and agreements on search and rescue of migrants, with the primary objective to protect migrants’ right to life that uphold the prohibition of collective expulsion, guarantee due process and individual assessments, enhance reception and assistance capacities, and ensure that the provision of assistance of an exclusively humanitarian nature for migrants is not considered unlawful.

This language adopts the approach taken by the Protocol against the Smuggling of Migrants, however, because of the continued use of criminalisation as a tool to restrict civil society space, civil society groups have noted their regret at the time of the conclusion of the negotiations on the GCR ‘that no stronger language could be achieved on the non-criminalisation of migrants and of those who provide support to them.’

If Providing Assistance which is ‘Exclusively Humanitarian’ is Lawful, Why does Criminalisation Continue?

In a December 2019 study I prepared for the Conference on INGOs Expert Council on NGO Law, entitled: Using Criminal Law to Restrict the Work of NGOs Supporting Refugees and other Migrants in Council of Europe Member States, the following problems were noted with the implementation of the humanitarian exception to criminalisation under the Protocol against the Smuggling of Migrants:

• ‘Humanitarian assistance’ is often framed vaguely or construed overly narrowly, which opens the way for misuse of counter- smuggling provisions for the criminalisation of solidarity.
• In some countries, assistance is only understood to be ‘humanitarian’ if it pertains to rescues at sea (as opposed to land). In other countries, assistance is only seen as ‘humanitarian’ if it is done in cooperation with national law enforcement or migration management officials (though it is recognised that NGOs will often need to work independently to gain the trust of vulnerable migrants).
• Some acts which are ‘for gain’ may still be humanitarian, and this nuance is not always appreciated by legislators, investigators or prosecutors. Some NGOs and their professional staff may act on a humanitarian basis but may be compensated or receive other benefits for doing so, such as a salary or housing allowance.
• Some legislation to curb migrant smuggling, such as the European Council Directive 2002/90/EC of 28 November 2002, the EU Facilitation Directive, which requires member states to sanction persons who assist non-citizens to enter or transit across the territory of a member state in breach of the laws of that state, do not contain a mandatory exception for acts that are humanitarian in character. The humanitarian clause is optional. Also, some states have interpreted the Directive as a basis to criminalise the provision of basic services (e.g., providing accommodation; food and clean water; health and sanitation; transport; lending mobile phones) to undocumented migrants who have already entered the territory.

But, criminalisation is not a phenomenon restricted to Europe. In the USA, humanitarian groups and members of solidarity networks have been prosecuted for harbouring, sheltering or providing aid to migrants and in Mexico, the government has sought to criminalise the accompaniment of migrants in transit.

Even where NGOs and humanitarian actors have not been prosecuted, many have been threatened with prosecution which has created a chilling effect for their work. Many have faced administrative sanctions and other barriers such as delays with the registration of their NGOs or denial of permission to register; the delays in the issuance of work permits; the seizure or confiscation of property and the imposition of fines. In order to receive government funding, some NGOs have  faced restrictions about the advocacy they can undertake.

What is Needed

Criminalisation of NGOs and solidarity networks who do not tow the party line is happening and will continue to happen because states that are intent on maintaining securitised responses to the influx of refugees and migrants are not interested in collaborating with them. There is no interest in embracing different points of view and shifting from their policy agendas. Thus criminalisation is precisely about the desire to shut down civil society space which detracts from government agendas. The ability to misuse the Protocol against the Smuggling of Migrants is simply a lucky happenstance which provides states with a tool to criminalise and a helpful narrative to justify criminalisation.

For the GCR and GCM partnership agendas, there are thus two options. One is simply to embrace a partnership model that treats civil society as implementers of state policy. This is the watered-down version of civil society engagement that seems already to have taken hold. This risks to leave civil society without agency and independence and one can question whether it constitutes a partnership model at all. Over time, this approach will continue to erode civil society space in areas related to refugees and migrants which would be highly detrimental to the realisation of the latter’s rights under international law.

The second option is to insist on more robust partnership models. This is not just about access to international forums to discuss policy at the international level. It is, fundamentally, about grassroots, local and country-level engagement in the conceptualisation, design, implementation and monitoring of policies towards refugees and migrants. This is the goal that is yet to be realised; this is the goal worth fighting for. The GCR and GCM implementation forums should be more focused on monitoring and fostering incremental progress in this under-realised area.