Solidarity With Migrants is not a Crime but a Necessary Political Struggle

Guest post by Carlo Caprioglio, Tatiana Montella and Enrica Rigo. Carlo Caprioglio is a research fellow and adjunct professor at the Legal Clinic for Immigration and Citizenship of the Università Roma Tre. Tatiana Montella, lawyer, feminist, deals with criminal law, immigration law and gender violence and was part of the team of lawyers in the trial of the six young Eritreans. Enrica Rigo teaches Philosophy of Law at the University of Roma Tre, where she founded the Clinic for Immigration and Citizenship Law, and is the author of La straniera. Migrazioni, asilo e sfruttamento in una prospettiva di genere (Carocci, 2022).   

Seven years ago in Rome, six Eritrean refugees were arrested with the charge of being part of a transnational criminal association for aiding and abetting illegal immigration. On May 20th 2022, the Court of Cassation finally recognized that the defendants had acted in solidarity with their compatriots, friends, and relatives and acquitted them on the basis that “the alleged criminal acts were not committed.” Although we acknowledge the importance of this judgement, it is just one step forward in a political struggle that must be fought both inside and outside of the courtroom. On the one side, it is a struggle against the odious rules which “illegalise” migrants’ crossborder mobility.  On the other, it is a struggle to affirm that the freedom of movement enacted by migrant women and men is a radical political act that opposes a global border regime that operates as an instrument of domination, oppression, and exploitation.

The seven-year trial has highlighted the wall of suspicion that surrounds migrants who are charged with smuggling. This is sustained by a public rhetoric that obsessively searches for those responsible for tragedies at sea and labels them as ‘traffickers’ or ‘smugglers’, thus absolving the border regime of any political responsibility for transforming migratory routes into increasingly deadly passages for those who cross them. On the other hand, this same rhetoric is fuelled by a narrative that depoliticizes freedom of movement, equates migration with forced movements facilitated by profiteers and exploiters, and represents those who irregularly cross borders as helpless victims trapped in a criminal system.

What gets forgotten is that article 12 of the Italian Immigration law – which codifies the crime of facilitating illegal immigration – has less to do with safeguarding migrants than with protecting the borders. It is precisely on this basis that both activists’ solidarity actions and migrants’ mutual aid practices are criminalized, as acts of solidarity are prosecuted regardless of whether or not they are for the sake of profit or exploitation. It is in this context that the importance of the decision of the Court of Cassation – which overturned two levels of judgment – needs to be understood.

The case began in 2015 with an investigation by Rome’s Anti-Mafia District Directorate, in connection with the one that led to the arrest in Palermo of an Eritrean carpenter unjustly accused of being the well-known human trafficker Mered Medhanie. Four refugees in Rome were arrested on 14th March 2016, along with two other refugees who were subsequently acquitted. The arrestees were charged with being part of the Roman group of a transnational association, headed by Medhanie, which facilitated ‘illegal immigration’ from Eritrea to countries in Northern Europe through Italy. The initial charge of criminal association reveals the widespread attitude of public prosecutors who, since 2013, have been making extensive use of anti-mafia tools to counter illegal immigration. The charge of being associated with a criminal syndicate was not made on the basis of tangible facts, but rather on an interpretation that represented transnational smugglers  as a sort of “tour operator” that transported migrants from the Horn of Africa to Northern Europe. Each step of the journey, even if it was within national borders, was thus understood as part of a broader criminal plan, including aid offered to migrants in transit.

In the first trial, the charge of criminal association was dismissed, but the defendants were still convicted of facilitating illegal immigration, despite the fact that the court recognized the absence of any profit-making purpose on their part. Simple gestures - such as buying food, clothes, and bus tickets from Sicily to Rome, or offering relatives a place to sleep - were considered acts facilitating the ‘illegal transit’ towards another Member State, as determined by Art. 12 of the Italian Immigration Act.  By considering their conduct as ‘facilitation of transit’, the court excluded the humanitarian clause which justifies aid given to irregular migrants on Italian territory, foreseen by paragraph 2 of article 12. This was the same charge levelled against the activists of Linea d’Ombra in Trieste and the association Baobab in Rome. However, while these latter two cases were resolved respectively with a dismissal and an acquittal requested by the public prosecutor before the trial, for the Eritrean refugees it took seven years and three rounds of appeal.

Italian legal culture is unaccustomed to emphasizing its miscarriages of “racial” justice, despite the ease with which migrants are first incarcerated and then judged, which should constitute more of a wake-up call. Migrants involved in criminal investigations for ‘facilitating illegal immigration’ are never portrayed by the mainstream press as champions of solidarity, nor do they receive the same attention granted to European activists. The point is not, however, to criticize the media coverage which rightly has drawn attention to the trials involving NGOs, but rather to reflect on the due process of migrants’ trials. Even when investigations end with acquittals, they still effectively undermine the networks of solidarity that allow migrants to escape from wars and dictatorships, or from patriarchal and neocolonial violence, or that simply support the legitimate expectation to decide the fate of one’s life.

There is a direct thread between this investigation of Eritrean refugees, which involved spaces of solidarity and self-organization of the Eritrean community in Rome, such as the camp of Ponte Mammolo and the squat of via Curatone, evicted between 2015 and 2017, and the investigations against activists of NGOs. In both cases, the goal achieved by criminal investigations is to compromise the infrastructure of solidarity through which migrants move by: halting the rescue boats; dismantling the places where migrants can rest during the journey; and fomenting mistrust and isolation in migrants’ community networks. It is precisely because of this that it is not enough to settle for acquittals. It is necessary to make these trials against solidarity an opportunity to challenge the dominant rhetoric. The aim must be debunking the narrative of the “tour operator” that moves migrants, in order to affirm, instead, the legitimate political actions of those networks, both formal and informal, which embody that infrastructure of solidarity that – just like a contemporary “underground railroad” – is necessary to build in order to defend migrants’ freedom of movement.

On May 21st 2022 it begun in Trapani the trial against four activists from the German NGO Iuventa accused of facilitation of illegal immigration. It is no coincidence that the Iuventa trial is the first to reach a hearing since the Italian government launched its campaign to criminalize rescue operations at sea: the German organization was in fact the first to explicitly advocate for the political significance of humanitarian intervention as solidarity and denounce the European border regime as responsible for deaths at sea.

At the same time, it is also important not to lose sight of the larger European dimension of the criminalization of solidarity. In Malta, three young asylum seekers are risking life imprisonment for protesting the decision to be sent back to Libya by the merchant ship El Hiblu, which rescued them and 108 other people. Arrested when they arrived, the three asylum seekers spent seven months in prison and are now awaiting trial on terrorism charges, while an international campaign calls for their acquittal on all counts. In Greece, after the so-called “refugee crisis” and the EU-Turkey deal, the use of the crime of facilitating illegal immigration is systematic. From 2014 to 2019 alone, over eight thousand migrants were arrested for facilitating illegal immigration, which represents the second highest motive for incarceration in Greek prisons. Since 2013, in Italy there have been over 2,500 criminal proceedings for facilitation of illegal immigration. Migrants are usually arrested upon arriving and sentenced at the end of summary trials with assistance only from public defenders. Accused of being scafisti (term used to describe migrant boat drivers), these migrants are the perfect scapegoats: condemning them means absolving the border regime for the thousands of deaths at sea that occur only a few miles from the Italian coast.

The decision of the Court of Cassation in the case of the Eritreans in Rome is thus important not only for the defendants, but for all the people who act in solidarity with those who cross borders: NGO activists and migrants themselves who are supportive of their compatriots exercising their right to freedom of movement. This decision represents a step forward in questioning the crime of facilitating irregular immigration. The decision follows another recent sentence of the Italian Constitutional Court, which ruled unconstitutional the aggravating circumstance of using false or counterfeit identity documents, foreseen by Article 12 of the Italian Immigration Act.

After many years, these are the first cracks in one of the legislative keystones of the Italian border regime. In these cracks, that have been fomented by the work of radical lawyers and activists, a space opens up for the radical contestation of the crime of facilitation: a contestation which is undoubtedly political and in support of migrants’ daily struggles for freedom of movement.

An extended version of this article previously appeared on Jacobin Italia

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.