By: Caitlin Vito
The seventh Session of the Conference of the Parties (COP) to the UN Convention against Transnational Organized Crime took place in Vienna from 6 – 10 October 2014 at the United Nations offices. As part of the COP, the Academic Council on the United Nations System (ACUNS), Vienna Office co-hosted with the Norwegian Embassy the side-event ‘European Differences on Anti-Smuggling Legislation’ held the 6th of October. The panel was chaired by Kristian Ødegaard from the Permanent Mission of Norway. Expert speakers contributing to the side-event included Friedrich Forsthuber, President of the Vienna Criminal Court, Gerald Tatzgern from the Federal Criminal Police Office, Ann-Charlotte Nygard from the EU Fundamental Rights Agency (FRA), Vienna-based defence lawyer Phillip Bischof as well as Harald Gloede from “Human Rights Without Borders” based in Germany. Also joining the panel was Katarzyna Winiecka from “Fluchthilfe und Du”.
The side-event focused on national differences in anti-smuggling legislation, examining the criminalization of different acts related to the smuggling of migrants throughout the EU. Holding this side-event at the COP was particularly timely as in 2014 the EU and its Member-States intensified efforts to address the continuing flow of irregular migrants and asylum-seekers to its borders. Such efforts have generated significant debate, both at the national and EU level. The side-event’s lively discussion reflected this as each panellist brought to the conversation their own viewpoints and experiences.
The panel session and question and answer period highlighted the difficulty in demarcating the motives of the migrant ‘smugglers’. This is a critical element of the debate as providing humanitarian assistance to irregular migrants is legal, but the aiding of unlawful entry for commercial profit is strictly illegal. Friedrich Forsthuber emphasized that answers to this question depended on individual cases. Providing historical perspective, he noted that viewpoints have changed in Europe towards smuggling since the fall of the Soviet Union. Quoting from Professor Schmoeller of the University of Salzburg, Forsthuber stated that “when we had the iron curtain the Fluchthelfer was honest, but since we lost the iron curtain, the Fluchthilfe is not honest anymore, it is now the crime of smuggling”.
Looking at the current developments in the EU, Ann-Charlotte Nygard highlighted the FRA’s report ‘Criminalisation of migrants in an irregular situation and of persons engaging with them’. The report recommends that laws should not risk punishing those providing irregular migrants with humanitarian assistance. However, it stresses that exploitation of irregular migrants for profit should be prosecuted. Gerald Tatzgern offered an overview of Austria’s approach to the issue. He noted that the country is a point of transit and destination for irregular migrants, linked with international smuggling networks. Tatzgern highlighted 2006 as a key year for the tightening of Austrian anti-smuggling legislation. However, with over 20, 000 people expected to be smuggled through or into Austria this year, the difficulty for the prosecution lies in identifying those who are earning the real criminal profit and those who are providing humanitarian support. The unfolding of conflict in places such as Syria makes this task that much more challenging as smugglers working for profit can also claim to be providing humanitarian assistance to Syrian refugees.
Providing a different perspective of the migrant smuggling debate was Phillip Bischof, who represented in court a number of those accused of smuggling in Austria. He remarked that those deemed smugglers are often times helping “out of humanity, out of compassion”. However, with the current laws, he would advise against doing this as providing assistance can be represented in court as aiding in the smuggling of irregular migrants.
In comparison with Austria, Harald Gloede spoke of the German experience. Gloede drew attention to the shift in perception of smuggling. During the GDR, the West German government encouraged those aiding East Germans fleeing the GDR. Meanwhile, while Fluchthilfe was a crime in the GDR. Since reunification, the German government has tightened migration laws to stop irregular entry. These laws, consequently, have made irregular migrants are more reliant on smugglers since they have the knowledge and skills needed to navigate the increasingly complex border and migration system. Gloede echoed earlier discussion as he noted that the motives of the smugglers range from those purely working on a commercial basis to those acting out of humanitarian reasons. Despite these vast differences, Gloede remarked that all smugglers in Germany are treated in the same manner by the police and by the courts, namely as criminals.
Building on this discussion, Katarzyna Winiecka reminded those present that anti-smuggling laws and questions of who is a smuggler are not just theoretical questions, but have a real-life, and often devastating impact, on those accused. She argued that while anti-smuggling legislation aims to protect migrants, they continue to die at Europe’s borders. She underlined that, from her perspective, migrants are not necessarily the victims of smugglers but rather of Europe’s “security centric” view of migration. The role of the media was also emphasized. Winiecka noted that the media has helped to generate the image of the “big smuggling rings” infiltrating Austria and Europe when, in fact, this depiction does not reflect the reality of migrants and refugees helping one another. Former generations in Europe, Winiecka argued, used these exact means during times of war and hardship. In previous times this was called “Notwehr”. However, currently this act is criminalized as ‘migrant smuggling’ and prosecuted with inappropriately applied smuggling laws.
Concluding the session, Kristian Ødegaard noted that the side-event raised more questions than answers. The chair highlighted the importance that such discussions play in forging a way forward in addressing such complex issues. The smuggling of irregular migrants and the development of appropriate anti-smuggling legislation are challenges which confront all EU Member-States. The panel reinforced the need for a dialogue addressing these issues to continue at the local, national and EU levels.