ReSOMA: How could strategic litigation prevent policing of humanitarianism?

Policy brief by Lina Vosyliūtė, Centre for European Policy Studies – December 2019

This ReSOMA brief explores some options for strategic litigation and advocacy to stop and prevent the criminalisation of migration and wider policing of humanitarianism. It is answering the following questions:

• How can criminalised individuals, civil society organisations frame their claims? What judicial, administrative and democratic accountability venues are available to them at the EU level?

• Which are other international and regional venues that have been or could be used to highlight the shared responsibility of the EU and its Member States for the crackdown on NGOs?

• Are there effective remedies available for judicial harassment, when a criminal prosecution amounts to persecution of civil society?

• What can be done to challenge early signs of policing (suspicion, intimidation and harassment, disciplining on other unrelated administrative offences) before they escalate into a criminal prosecution?The paper argues that a gap between prosecutions and convictions, plus a cumulative fair trial violations, are strong indications of judicial harassment of human rights defenders. Thus, it looked into ways to invoke democratic accountability of the national authorities who went forward with cases without evidence.

Read the policy brief here.

Background note on previous research on ‘policing humanitarianism’ and key insights by CEPS

At CEPS, in cooperation with PICUM, we have done two studies for the European Parliament  on Facilitators Package in  2016 and 2018 update, that included media monitoring. We concluded very firmly that this EU legislation is not fit for purpose and that it should be changed.

Thanks to the UK’s ESRC research grant we published a book on ‘Policing Humanitarianism‘ and academic article at  International Journal of Migration, and Borders Studies. Our methods involved field research (2017 – 2018) to Italy, Greece, the UK/France, Hungary (89 interviews and 2 focus groups: one with civil society and one with law enforcement, judicial and asylum authorities), online survey (114 respondents) and gathering of testimonies. On the basis of this rich qualitative research, we have captured a cycle of policing – from suspicion, to disciplining,  intimidation harassment, and eventual criminalisation. We see how it could be furthered geographically and also with concrete recommendations, how civil society could defend itself at each at those phases.

We have scaled-up the impact of our research throughout the ReSOMA project (Horizon 2020) in cooperation with Migration Policy Group, PICUM, ECRE, Social Platform, Eurocities, Erasmus University Rotterdam and ISMU.  In ReSOMA project we have designed a unique method on how to engage with criminalised individuals, their lawyers, humanitarian and human rights organisations that are working in the field, and organisations that are doing advocacy at EU, regional and UN levels, at so-called Transnational Feedback Meetings. The method enabled the exchange of litigation practices and legal arguments, also to make the criminalised individuals – the starting point on how we should frame strategic litigation – what do they want? And they wanted, truth and accountability of those who persecuted them.

We also undertook Task Forces with EU institutions, agencies, international organisations, where we identified and subsequently addressed underlying challenges or assumptions of policymakers, i.e. we rebutted Commission’s insistence in REFIT that civil society fears are only perceived, that there are no or only a few cases of criminalisation, or that acquittals of these individuals amount to effective remedies.MPG colleagues have shown that in the period between 2015 – 2019  there were more than 150 individuals criminalised in 11 EU Member States

In the latest strategic litigation paper, we argued that a gap between prosecutions and convictions, plus a cumulative fair trial violations, are strong indications of judicial harassment of human rights defenders. We also looked into how to invoke democratic accountability of the EU policy makers.

The novelty of arguments and cooperation with civil society, and criminalised individuals resulted in high media interest, for example, our research has been quoted by POLITICO, CNN, just to mention a few.

Our research also backed LIBE committee calls for Guidelines to exempt humanitarian assistance. In the area of ‘civic space’ –  our research informed CoE Expert Council on NGO law report.  Also we have been directly contacted to feed in the work of the UN Special Rapporteur on Migrant Rights – new report on Freedom of Association (should be published in June).