This blog post is by Clare Imbusch, a 3rd year student of the Law (BCL) and Human Rights degree at the School of Law, University of Galway. The post builds on an essay submitted for the module ‘Human Rights Law: Theories, Concepts and Contemporary Issues’, in which students study the theory and practice of movement lawyering, among other topics.
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“Imagine you arrive at the scene of a car accident and there is someone lying on the road, and they clearly need your help, what would you check first? Their pulse or their passport? Well, if like me you check their pulse first, then you’ve committed the exact same crime that I’m supposed to have committed.”
– Seán Binder, speaking at the European Parliament, December 2022.
Sara Mardini and Seán Binder are search and rescue volunteers who have been criminally charged in Greece with ‘people smuggling’, ‘money laundering’, ‘espionage’ and ‘membership in a criminal organisation’ for their involvement in rescuing migrants and asylum-seekers in the Mediterranean Sea. ‘Free Humanitarians’, meanwhile, is a campaign group (communicating with the public primarily through Instagram) which has called for the charges to be dropped and continues to advocate for the Greek policy on migrants’ rights and humanitarian assistance to be changed.
This blog post discusses the injustice that Mardini and Binder have faced, and the devastating effects that their and others’ criminalisation has had on the lives and rights of people seeking asylum. The post also analyses the campaign strategy used by Free Humanitarians to demand that the Greek government end its illegal policies that deny people’s right to seek asylum and stop criminalising human rights defenders. It is hoped that this post will further awareness of the serious human rights issues at stake, and the advocacy work that is open to all of us to support.
The Case of Sara Mardini and Seán Binder
Sara Mardini and Seán Binder were working with a non-profit and non-governmental organisation called ‘Emergency Response Center International’ in Lesvos, Greece, when they were arrested in August 2018. Their work with the organisation included assisting more than 1,000 asylum-seekers when they were travelling by sea to Greece, organising workshops and swimming classes for children in migrant camps, and providing medical assistance to camp residents. Since their prosecution by the Greek authorities, Emergency Response Center International has ceased its humanitarian activities. The five felony charges brought so far against Mardini and Binder carry penalties of up to twenty-five years in prison, and the possibility of their imprisonment seems clearly to have caused the number of asylum-seekers drowning in Mediterranean waters to increase significantly due to non-governmental rescue groups facing legal obstacles when conducting their operations.
In November 2021, Mardini, Binder and twenty-two other defendants faced trial on a range of misdemeanour charges (separated from the felony charges), but the trial ended up being postponed due to lack of jurisdiction of the court. The trial finally recommenced in January 2023, where the case was thrown out by the Court of Appeal of Mytilene on procedural grounds, which included the failure to translate documents for the non-Greek speaking defendants, the lack of evidence on the espionage charges and the five-year statute of limitations being about to expire. Despite this decision, as Human Rights Watch has explained, the defendants are still at risk of further criminal investigation and prosecution on the ‘serious crime’ / felony charges due to the Court failing to recognise that saving the lives of asylum-seekers is not a crime. On April 16th 2023, Free Humanitarians announced that the Greek Supreme Court was to hear an appeal made by the prosecution about the January misdemeanour trial. And just this week, on September 25th 2023, Free Humanitarians reported the Supreme Court’s decision that Mardini, Binder and six other defendants were indeed denied their translation rights—and the misdemeanour charges against them may not be brought again. However, the Greek Supreme Court has ordered that 16 Greek-speaking defendants may be re-tried on the misdemeanour charges. According to Free Humanitarians, these charges could lead to prison sentences of up to eight years. Free Humanitarians is now campaigning to raise funds for these individuals’ legal defence, as well as spreading awareness and educating others about their wrongful criminalisation and the continuing threat to Binder, Mardini and all 24 original defendants of trial on the felony charges.
The Need for the Free Humanitarians Advocacy Effort
The Free Humanitarians advocacy effort was needed because Mardini, Binder and many others are being wrongfully criminalised for saving the lives of those at risk of drowning at sea. Free Humanitarians has campaigned for the defendants’ charges to be dropped and helped the defendants to fight the charges by raising funds to provide them with an adequate legal team. The group also continues to spread the message that humanitarian assistance is not a crime. The criminal accusations that have been brought against the defendants have been widely criticised by international organisations including Human Rights Watch, which deems the accusations to be ‘entirely unfounded’, and the International Rescue Committee, which considers that the criminal proceedings dangerously undermine ‘the EU’s own moral compass’. A European Parliament report described the case as Europe’s ‘largest case of criminalisation of solidarity.’
The Greek authorities are going to great lengths to cease humanitarian assistance operations by making absurd claims about the conduct of human rights defenders. For example, Mardini and Binder were accused of ‘people smuggling’ on eleven different occasions, but they were in fact not even in the country on six of those alleged occasions and the Emergency Response Center International has provided evidence to dispute those claims. Furthermore, the defendants were accused of breaching Greek Law 4251/2014, despite the law’s provisions not covering humanitarian assistance. Mary Lawlor, UN Special Rapporteur on the situation of human rights defenders, raised her concerns about ‘the increasing criminalization of humanitarian assistance in Greece’ after her visit to Greece in 2022. In her preliminary observations, she criticised the fact that Greece bases its criminal cases on the 4251/2014 Law because human rights defenders are thus wrongfully criminalised, their work is sabotaged and they become vilified.
Greece’s 2020 strict registration rules for non-governmental organisations have also caused several groups to halt their humanitarian activities due to being unable to meet the requirements. The ‘systematic intimidation and harassment’ that those being prosecuted for humanitarian assistance face has been deemed to be ‘as damaging as formal criminalisation’ by the European Parliament because it causes them extreme harm, financial pressure and exposes them to danger. Prosecuting people for saving the lives of people fleeing persecution has been shown to negatively impact human rights defenders as well as deprive migrants of vital support and of the protection of their human rights. The work of Free Humanitarians is needed because it calls for the Greek authorities to stop targeting non-governmental organisations and individuals who help refugees and to instead recognise their work as being an essential way to protect the rights of migrants.
As previously mentioned, Greece’s strict migrant-related policies have caused the majority of humanitarian assistance operations to cease, resulting in a rise in the number of asylum-seekers drowning in the Mediterranean waters. Just recently on June 14th 2023, a fishing trawler with approximately 750 asylum seekers on board capsized near southern Greece and at least 600 people either died or went missing as a result of the incident, making it one of the worst migrant boat disasters in recent years. The Greek officials failed to help those on board, claiming that they were not in need of rescue during the hours before the ship capsized; however, the movement of other ships in the area has suggested that the vessel was not moving during the seven hours prior to the incident. As well as this, survivors claimed that the coast guard caused the ship to capsize and sink after it carelessly tried to tow it towards Italian shores, yet Greece denies this. The International Organization for Migration and the UN Refugee Agency in response have stated that ‘it is clear that the current approach to the Mediterranean is unworkable’ and are calling for States to work together and prioritise the human rights of migrants in their search and rescue responses. This horrific event highlights the importance of Free Humanitarians’ advocacy effort, as well as the vital role that both non-governmental organisations and humanitarians play in saving the lives of migrants. The prosecution of humanitarians such as Mardini and Binder is clearly linked to the declining survival rate of migrants crossing the Mediterranean Sea, making Greece’s policies incredibly unnecessary and unjust. More could certainly have been done by the Greek authorities to prevent such a huge loss of life, and events such as this will continue to occur if humanitarian assistance continues to be criminalised. Indeed, since June 14th, there have been reports of more shipwrecks in the Mediterranean Sea, including the tragedy of forty-one migrants drowning off the coast of an Italian island when their ship capsized and sank.
Legal Arguments of Free Humanitarians
Prior to the case being thrown out of the Court of Appeal in January 2023, Binder and Mardini’s legal team argued that the charges ought to be dropped due to procedural issues. The team provided evidence of missing translations and details of the accusations, errors in court summons, errors in the list of accusations and the violation of the presumption of innocence. Free Humanitarians also argued that the defendants had suffered human rights abuses in jail due to their remaining in police custody for over 100 days, Binder being sent straight to a prison cell with seventeen convicted felons, and Mardini being kept in solitary confinement. As well as this, Mardini was being tried in absentia in the November 2021 trial due to the Greek authorities banning her from returning to the country. Both Binder and Mardini’s right to the presumption of innocence, and Mardini’s right of a fair trial were being violated. These arguments were successful enough to get the misdemeanour case thrown out, but did not protect the defendants from potential prosecution in the future on felony charges.
Free Humanitarians now continues to rely on European and international documents to argue that the actions of the Greek authorities are unlawful. The campaign argues that the Greek police’s claim that the defendants “facilitated the illegal entry of asylum seekers” is impossible under EU law. Article 78(1) TFEU states that any third-country national requiring international protection must be offered appropriate status, making asylum-seekers exempt from illegal entry. The EU Facilitation Directive provides that a Member State cannot impose sanctions on anyone who provides humanitarian assistance to a third country national who wishes to enter the territory of a Member State. However, as Laura Schack has pointed out, the vagueness of this Directive is often used by the Greek authorities to lay criminal charges on human rights defenders, making it difficult for the defendants to rely on it.
It was outlined in a 2021 United Nations report that States are obliged to ensure that asylum-seekers are not left ‘adrift’ in international waters without access to both humanitarian assistance and medical support, and States cannot return such people to situations where they would be at risk of human rights violations. The report relies on various provisions of treaties such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and the International Covenant on Civil and Political Rights and mentions the prohibition of collective expulsions and the principle of non-refoulment. Greece must examine each case of expulsion of a migrant individually and cannot remove an individual when they would be at risk of harm in the place that they are to be transferred to. This legal framework characterises Mardini and Binder’s actions as lawful and necessary and renders the criminalisation of humanitarian assistance unlawful under international law. The actions of the Greek authorities can be described as ‘pushbacks’, which has been defined in the report as measures taken by States that forcefully remove migrants without individually assessing their needs in line with human rights obligations. The United Nations condemns pushbacks on international borders, stating that they often worsen situations of vulnerability, contribute to dire living conditions and occasionally amounting to torture and ill-treatment.
Free Humanitarians’ Advocacy Strategy
Free Humanitarians carries out the majority of its campaigning online, primarily on the social media platform of Instagram. The campaign set up a petition in 2021 that was aimed at the Greek Minister for Justice, calling for the defendants’ charges to be dropped, which has currently reached 39,447 signatures out of its 50,000 goal. An open-letter, which is co-signed by forty-nine other non-governmental organisations, was also published to put pressure on the Greek authorities. Campaign events were held in various European cities to raise awareness, including a protest in London with guest speakers throughout the trial period in January 2023. Mardini and Binder are involved with both Free Humanitarians and Amnesty International and advocate for themselves by posting on social media and participating in interviews. A new documentary has recently been released about Sara Mardini, titled ‘Long Distance Swimmer’, which tells Mardini’s story of her fight for justice and self-discovery, advocating for Free Humanitarians’ cause.
The advocacy strategy at the beginning of the campaign aimed to increase awareness of the trial and of the criminalisation of humanitarians around the EU and to put public pressure on the Greek authorities and policymakers to address the problems facing human rights defenders, through the powers of social media. For the most part, we can judge the advocacy strategy to have been successful because Mardini and Binder’s case has gained widespread media attention all over the world. Many people want to hear what the defendants have to say: for example, Binder was invited to speak about the trial at an European Parliament conference, and Mardini was invited to speak about the trial at her Ted-Talk in 2019. The strategy was effective in raising awareness and in getting the case thrown out, but so far there is no guarantee against further prosecution and the Greek authorities have not changed their policies on humanitarian assistance.
Campaigning through social media has made information and updates about the case easily accessible and available to an international audience. However, social media activism can easily just remain on social media. Awareness of the cause is only worthwhile if it leads to action, and clearly, there is a huge task ahead to end the criminalisation of human rights defenders. For those of us following Free Humanitarians’ work, and even signing their petitions and open letters, it is vital to remember that online awareness must be complemented by a range of other practical activities and efforts—by as many people and groups as possible—in order for significant and lasting changes to occur.
Irish Centre for Human Rights Blog 
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