The Criminalization of Solidarity

Although the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air 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,”Footnote ⁶ the profit requirement has either been omitted in domestic transpositions or interpreted so capaciously as to encompass activities such as the provision of legal assistance for a fee, the rendering of basic services on a salaried basis, and the receipt of donations by non-governmental organizations (NGOs).Footnote ⁷ Life-saving interventions, including sea rescue across the MediterraneanFootnote ⁸ or water dropping in the Arizona desert,Footnote ⁹ have also been affected. According to the laws in place, merely assisting a person to enter/stay without authorization through whatever means, whatever the purpose, is sufficient for criminalization.Footnote ¹⁰ There is no distinction between abusive or exploitative action and action undertaken for selfless reasons. Even mere “attempts,” “instigation,” or “participation” in the acts concerned may attract prosecution,Footnote ¹¹ thereby conflating humanitarianism with migrant smuggling.

That blameless and harmless conduct is being targeted is illustrated by the declarations of Michael Bailey, U.S. Attorney for the District of Arizona, in the case against No Más Muertes/No More Deaths volunteer Scott Warren. At the time of Warren's acquittal, Bailey shared his “disappoint[ment] in the verdict,” but warned that “it won't deter [the U.S. Department of Justice] from continuing to prosecute . . . all the harboring and smuggling cases,” underscoring that “we won't distinguish between whether someone is harboring . . . for money or whether they're doing it out of . . . a misguided sense of social justice or belief in open borders.”Footnote ¹²

Criminal responsibility in these cases is construed by association through the link, however tenuous, with the act of irregular border-crossing, and without pondering whether solidarians’ interventions align with core democratic values, international human rights, and constitutional commitments. Such considerations may warrant eventual acquittal but do not prevent investigation and prosecution in proceedings that may last years.Footnote ¹³ In this context, trial processes are in themselves punitive and have a chilling effect, stifling dissent and resistance to power structures considered unjust. Preventive measures like seizures (e.g., of rescue vessels) de facto impede operations and inhibit humanitarian action, in practice dismantling NGOs’ activities.Footnote ¹⁴

“Crimes of solidarity”Footnote ¹⁵—as they are known—are forward-looking constructs that aim to deter others from taking similar action by wielding the threat of prosecution and potential punishment. They do not redress past misdeeds. These crimes rather focus on preventing the (supposed) ultimate results of the action, cast as illegal. The liability paradigm thereby constituted expands upon the classic fault model, which typically lays individual responsibility for intended or negligent conduct causally linked to a harmful/wrongful outcome.Footnote ¹⁶ Here, neither the mental state of the perpetrator nor their motives, intention, or carelessness come into play.Footnote ¹⁷ Participation in innocuous, even morally praiseworthy, action, if it can be construed as part of a broader process that (is understood to) produce irregular migration, is enough. That rescue saves life and complies with the legal duty to render assistance under international law is irrelevant.Footnote ¹⁸ What counts is that it puts migrants in a position to access borders and national territory unauthorized. The parameters of connection with the final outcome (of irregular entry) are less relevant than the (perceived) connection itself, however remote. Insofar as acts of solidarity are (seen as) disruptive of the (desired) status quo marked by the (state's interpretation of the) law, they are criminalized. Yet this “all-out” criminalization—characterizable as an instance of “state disobedience,”Footnote ¹⁹ even an abuse of powerFootnote ²⁰—has not gone unchallenged.

Solidaristic Mobilizations of Law

Such contestation can be seen, for example, in the Euro-Mediterranean region, where humanitarian SAR organizations have countered states’ charges by insisting that their rescue efforts, far from unlawful, are required by existing legal frameworks.Footnote ²¹ As discussed below, turning the tables around, they have argued that it is in fact the states that are engaging in law-breaking by adopting illegitimate migration laws and unduly restricting SAR operations in violation of their constitutional and international obligations. These humanitarian efforts exemplify a solidaristic mobilization of law in two ways: first, they take law in an egalitarian direction by insisting that fundamental rights, including the right to life, cannot be denied on the basis of arbitrary and discriminatory factors, such as migration status, country of origin, and/or race. While international human rights lawyers have long engaged in such legal contestation, what is new in these humanitarian efforts is the egalitarian mobilization of law by civil society actors beyond the official legal sites to appeal to a broader public. Second, many of these organizations break with conventional humanitarianisms that establish hierarchical divides between the “providers” and “beneficiaries” of aid; adopting an egalitarian understanding of solidarity, they strive to act in concert with, and not in the name of, migrants.Footnote ²²

The case of Sea-Watch 3 Captain Carola Rackete, who entered the Italian port of Lampedusa without authorization in June 2019 to disembark migrants rescued in international waters, offers an example of such solidaristic mobilizations of law. Upon arrival, Captain Rackete was detained on the charge of “resisting a warship” and put under investigation for facilitating illegal immigration.Footnote ²³ In a series of posts on social media, Matteo Salvini, then Italy's interior minister, praised the arrest of “the lawbreaking captain,” for what he claimed to be “a criminal act, an act of war.”Footnote ²⁴ Both Rackete and Sea-Watch resisted that characterization by insisting that the decision to defy the authorities was legally the right thing to do, since it “upheld the law of the sea and brought people to safety.”Footnote ²⁵ In a press release, Sea-Watch stated that they were ready “to take full responsibility for enforcing human rights, the law of the sea and the Italian constitution,” and added: “We will not give up and defend solidarity against every inhumane and racist policy from both single politicians and EU institutions.”Footnote ²⁶

Such acts of reinterpreting and reclaiming the law by SAR organizations in their resistance against the state deserve attention for exposing the lawlessness of migration policies that have turned borders into sites of violence and criminalized solidarity with migrants. States justify these policies by mobilizing a problematic understanding of lawfulness that reduces law to “a means of social control.”Footnote ²⁷ Following Robert Cover, we can describe this statist interpretation of law as “jurispathic”—i.e., justifying sovereign violence wielded in the name of border control by arrogating to states an exclusive and supreme authority to interpret the law.Footnote ²⁸ Closing off law to alternative interpretations, states strive to impose one meaning, taken to be authoritative, at the expense of others, and do that with the backing of “superior brute force.”Footnote ²⁹

As migrant solidarity activists stand up against states’ efforts to delegitimize and criminalize their actions, they contest the states’ claim to monopoly over the legitimate interpretation of law and refuse to concede to state authorities the prerogative to be the sole arbiters of legality/illegality. In so doing, they bring to view another dimension of law as a site of creative meaning-making, or “jurisgenesis,” which, as Cover emphasizes, expands law into a political-normative universe that cannot be exhausted by state-centric adjudications of “right and wrong, of lawful and unlawful, of valid and void.”Footnote ³⁰ Such jurisgenerative practices are often animated by an “inability to bear the dissonance of the lawfulness of the intolerable.”Footnote ³¹ In challenging governmental decrees that render “the intolerable” lawful, they transform law into a dynamic and heterogeneous site of interpretive contestation, in an attempt to place “a potential restraint on arbitrary power and violence.”Footnote ³²

Legal Mobilization in Practice

Such practices are important not only for challenging states, but also for generating solidaristic action that brings together humanitarian workers and migrants in egalitarian ways. The work of MRNY, the largest membership-led organization across New York State, offers a striking example in this regard. While MRNY is mainly focused on the organizing practices of community gatherings and action-based events, a crucial part of MRNY's work is tied to its survival services, particularly its legal department, which, among others, provides key immigration support.Footnote ³³ Through its immigration practice, MRNY has spearheaded national litigation cases, such as Batalla Vidal v. Nielsen,Footnote ³⁴ most recently known as Wolf v. Vidal in the U.S. Supreme Court hearings,Footnote ³⁵ which showed that the termination of the Deferred Action for Childhood Arrivals (DACA) programFootnote ³⁶ was based on arbitrary decisions by Homeland Security.

MRNY's challenge of the state via its litigation and defense practices embodies the idea of “movement lawyering” to contest intolerable-but-lawful practices of criminalization. Movement lawyering focuses on a holistic approach, using a social justice lens when interpreting the law.Footnote ³⁷ The definition of “movement” is one of community and, in practice, a group of people that seeks to transform systems of oppression and move toward the collective good, using law as a vehicle of solidarity and a tool of collective organizing.

At the macro level, the pathway to a fair and just immigration reform has been almost non-existent. During the Biden administration, Homeland Security guidelines were issued to focus on high-risk subjects, with histories of felonies or extensive criminal backgrounds. Yet the U.S. Immigration and Customs Enforcement (ICE) still targeted a broad spectrum of individuals falling outside this category, deviating from their own internal guidelines.Footnote ³⁸ MRNY operates in this context through legal mobilization, including the “rapid response legal collaborative” that seeks to address emergency detention cases.Footnote ³⁹

At the heart of this scheme is a deep egalitarian conviction that uses law as a solidarity-building tool to bridge power differentials between those offering and those receiving support, generating a self-awareness space of mutual recognition in the process. This solidarity-based conception of the law at the core of MRNY's interventions serves to connect members inter se and to transform them into actors. Through a solidarity-inspired reading and practicing of the law, MRNY's members are galvanized and re-made into organizers, advocates, and campaigners of their own rights. Solidarity as legal mobilization thereby allows for collective resistance and organized counter-action to challenge state categorizations that criminalize and punish (irregular) migrants and those standing in solidarity with them.

The culmination of this vision is the self-empowerment that several of MRNY's programs aspire to achieve through “Know Your Rights” resourcesFootnote ⁴⁰ and the “deportation defense manual,”Footnote ⁴¹ which can lead to the full subjectivation of migrants. Migrants, in this configuration, are no longer passive recipients but become part of a solidarity movement where each is an equal player in the struggle toward the realization of their rights and the egalitarian vision of the law.