A/HRC/44/42 maximum penalty for anyone found to have facilitated the entry or transit of an undocumented migrant is the same penalty given for human trafficking. 34 71. Laws used to criminalize the work of civil society organizations that work with migrants have also been leveraged against people working in an individual capacity. However, several of these laws provide for increased penalties when the alleged criminal activity is related to group activity. For example, the base penalty for facilitation of entry without a profit motive in Italy is up to five years’ imprisonment; in Belgium, this base penalty is up to one year’s imprisonment. Nevertheless, if the alleged crime is committed as an “organized crime” activity involving two or more people, it carries a sentence of up to 15 years in Italy and up to 20 years in Belgium. 35 72. Most cases against individuals and civil society organization staff that work with migrants in Europe and North America have ended in dismissal or acquittal,36 which begs the question of whether such charges are used by officials to harass them. Criminal indictments against individuals or civil society organizations that work with migrants can lead to additional harassment measures, such as authorized surveillance, the freezing of bank accounts or the seizure of assets. For example, after Italy alleged that the migrant rescue ship Aquarius, operated by Médecins sans frontières, had illegally disposed of infectious waste, the Italian authorities moved to seize the ship and to freeze the bank accounts of Médecins sans frontières in Italy. Criminal indictments, or the risk thereof, also force civil society organizations to spend significant time, money and resources dealing with these threats and negative media exposure rather than carrying out their work by providing services to migrants. This is particularly a problem for smaller organizations with minimal resources. 73. There are also significant negative physical, mental and financial repercussions on the individual staff members or volunteers of civil society organizations that work with migrants who are the direct target of criminal indictments. They face the pain of spending time in detention, paying high fees for attorneys and loss of reputation. 37 The stress of confronting these charges is significant considering the disproportionately high penalties at stake. Despite this worrying trend, it is worth noting that, in addition to the majority of these cases ending in dismissal or acquittal, some courts and constitutional councils have begun to push back against this wave of criminalization. For instance, in France in 2018, the Constitutional Council declared that the law’s failure to provide an exemption for humanitarian acts was unconstitutional because the principle of fraternity protects humanitarian assistance to others regardless of their immigration status. 38 2. Campaigns against civil society organizations that work with migrants 74. Even without an open criminal investigation or indictment against them, staff and volunteers of civil society organizations that work with migrants have been subject to campaigns of government intimidation. These have included surveillance and intelligence gathering by law enforcement, targeted financial audits, unreasonable searches, prolonged detention at the border, discriminatory threats, travel restrictions and revocation of fasttrack travel documents. There are even reports of government efforts to exclude organizations working on migrants’ rights from accessing the asylum process. It is reported that in 2019, journalists discovered that the United States authorities had put in place a confidential database of journalists and migrant advocates working at the United States/Mexico border and used the database, in coordination with the Mexican authorities, to monitor individuals on the list. A number of the individuals listed on the database – which included significant personal information about them – had alerts placed on their passports, causing them to be stopped and questioned for hours when attempting to cross 34 35 36 37 38 European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs, Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 Update (European Union, 2018), pp. 34–35. Vosyliūtė, “How could strategic litigation prevent policing of humanitarianism?”, p. 9. Ibid., pp.19–20. Eric Reidy, “Refugee, volunteer, prisoner: Sarah Mardini and Europe’s hardening line on migration”, The New Humanitarian, 2 May 2019; Vosyliūtė, “How could strategic litigation prevent policing of humanitarianism?”, p. 25. Constitutional Council of France, Decision No. 2018-717/718 QPC of 6 July 2018. 13