States increasingly rely on bureaucratic measures to obstruct search and rescue, marking an evolution in the criminalisation of solidarity. This threatens humanitarian efforts, contravenes international obligations and places greater burdens on commercial shipping.

In the context of migration governance and humanitarian assistance, criminalisation refers to the use of criminal law to penalise individuals and organisations providing support to migrants, often under charges such as facilitating irregular entry or aiding illegal migration. This approach has been widely used by States to prosecute search and rescue (SAR) NGOs, humanitarian workers, and civil society actors engaged in acts of solidarity with migrants.

In contrast, ‘administerisation’ – also referred to as bureaucratisation – denotes the strategic deployment of administrative and regulatory measures to obstruct SAR operations and humanitarian assistance without resorting to formal criminal proceedings. These measures include excessive licensing requirements, arbitrary port closures, vessel detentions under the guise of safety inspections, and financial penalties, all of which create operational and legal uncertainty for NGOs. While criminalisation entails direct legal prosecution and carries the risk of imprisonment, bureaucratisation circumvents the legal safeguards of criminal law by imposing indirect but equally obstructive regulatory constraints, enabling States to deter SAR activities while avoiding legal scrutiny and public backlash. The shift from criminalisation to bureaucratisation represents an evolution in State tactics, allowing for sustained suppression of humanitarian actors under a veneer of legal legitimacy. It has profound implications for both humanitarian law and the broader maritime sector, directly and indirectly delegating migration governance to administrative bodies and effectively diminishing access to traditional legal rights and remedies available for criminal proceedings.

The evolution of criminalisation

The criminalisation of humanitarian actors in Europe has been largely shaped by two main drivers: first, the lack of European solidarity regarding the equitable redistribution of new arrivals on EU territory, in addition to the resources required to ensure humane reception conditions; and second, a resurgence of anti-immigration sentiment across political and public discourse, exacerbated by the so-called 2015 refugee crisis. Research from the Platform for International Cooperation on Undocumented Migrants (PICUM) has documented a steady increase in the criminalisation of individuals providing assistance to migrants, particularly since 2015. Between 2015 and 2019, at least 171 people in 13 EU Member States faced legal action for acts of solidarity, including individuals who provided food, shelter, or transport; these legal actions principally targeted SAR operations in the Central Mediterranean corridor between North Africa and Southern European States, where the highest number of crossings occurred during this period.[1]

The most notable example of criminalisation occurred in 2017, when the Iuventa case exemplified this misuse of criminal law to suppress humanitarian search and rescue operations. Relying on politicised evidence, procedural irregularities and the deliberate misuse of legal provisions, Italian authorities accused the crew of the ship Iuventa and SAR NGOs of facilitating irregular migration.[2] After a seven-year legal battle, which saw multiple delays due to lack of evidence and serious procedural shortcomings, the Court of Trapani dismissed all charges on 19^th April 2024.[3] The prosecution had failed to properly notify defendants of critical procedural stages, undermining their right to defence. Preliminary hearings remained closed to independent observers despite public leaks of defendants’ identities, violating fair trial standards. The Italian Ministry of the Interior, acting as a civil plaintiff, submitted unsubstantiated claims of human trafficking, which the judge later informally struck from the record. Wiretapped communications were used without adequate legal justification, and key evidence was mistranslated, prejudicing the case against SAR workers. The State also sought excessive penalties under Article 12 of the Immigration Act, imposing aggravating factors that disproportionately increased sentences despite the absence of any financial gain or harm to migrants.

Italian authorities weaponised Article 12 and the EU Facilitators Package[4] to criminalise SAR efforts, exploiting vague legal definitions and the discretionary nature of the Package’s humanitarian exemption to selectively target rescue workers. The territorial restrictions of this humanitarian exemption meant that assistance provided before migrants set foot on Italian soil was not protected, despite clear obligations under international maritime and human rights law. In doing so, Italy effectively circumvented international rescue obligations while simultaneously reinforcing its pushback policies. A pending European Court of Justice ruling may clarify that humanitarian assistance is not a crime, but this case highlights the broader trend of authorities manipulating legal frameworks to suppress civil society action.[5]

Obstruction by bureaucracy

In recent years, States have increasingly turned to administrative measures to obstruct SAR activities. Rather than criminalising SAR NGOs outright, governments have introduced complex compliance requirements, imposed arbitrary port restrictions and seized vessels under the pretext of safety regulations. The EU Agency for Fundamental Rights (FRA) has documented more than 50 cases of SAR ships being detained, prevented from sailing or subjected to excessive inspections under national maritime laws in the period between 2018 and 2020. Italy’s Piantedosi Decree (Decree Law No. 1/2023), for instance, mandates that NGO vessels must head directly to designated ports after each rescue, effectively limiting their ability to conduct multiple rescues in a single mission, and being subject to discriminately stringent port inspections. While legitimate environmental and safety concerns merit regulatory scrutiny, the discriminatory and lengthy nature of such inspections disproportionately and systematically targeting NGO vessels – an infinitesimally small component of the shipping fleet sailing to and from Italy and Malta – is a clear indication of ulterior political motives designed to reduce their time at sea rescuing and disembarking migrants.[6]

This bureaucratisation of obstruction has had severe consequences. Legal and logistical hurdles have resulted in fewer NGO vessels being able to operate in the Mediterranean. As of the end of 2024, only a handful of vessels and reconnaissance aircraft remained active, compared with the 41 that were deployed at the height of SAR operations in 2018. Many of these ships are regularly blocked in port due to administrative proceedings, while others have been forced to suspend operations due to financial and legal uncertainties. Among the latter are MSF’s Geo Barents which ended operations in December 2024, attributing this to persistent repression by Italian authorities, which saw their vessel detained in port for 160 days in the previous two years, including an episode in June 2023 when they were instructed to sail to La Spezia in the north of Italy to disembark 13 survivors, despite having capacity to carry up to 600 rescued people.[7] Similarly, the Italian Civil Aviation Authority has further restricted reconnaissance missions by imposing bans on NGO aircraft, severely limiting aerial SAR capabilities which have proved essential to sighting vessels in distress and coordinating a timely response.

Another such example was the Maltese trial against Claus Peter Reisch, the captain of the NGO rescue ship Lifeline following the rescue and disembarkation of 234 people in Malta. The case hinged on allegations that the vessel was improperly registered and lacked the required operating licences to conduct search and rescue. Authorities argued that the ship’s International Certificate for Pleasure Craft, issued in the Netherlands, did not equate to official registration under Dutch law. The prosecution claimed that the vessel lacked a recognised flag State, rendering its operations illegal. Additionally, authorities invoked Article 4(2)(a) of Malta’s Ports and Shipping Act, which prohibits vessels from engaging in commercial activities without a valid licence. The court found that Lifeline was operating in Maltese territorial waters without the necessary authorisation, even though it was conducting humanitarian SAR missions rather than commercial transport. The prosecution’s focus on licensing requirements, typically applied to commercial maritime operations, demonstrates how regulatory frameworks were repurposed to uniquely target SAR NGOs. This technical interpretation of flag State requirements served as the basis for seizing the ship for over a year, allowing it to fall into a state of extreme disrepair through lack of adequate maintenance; upon Captain Reisch’s eventual acquittal more than a year later, the Lifeline was no longer deemed sufficiently maintained for operational activities, forcing its sale and the search for a new vessel, at considerable cost to the NGO. Despite losing their case on appeal, Maltese authorities had achieved their punitive goal against human rights defenders in the Mediterranean.[8]

Rise in deaths and erosion of rights

The withdrawal of SAR vessels has been directly linked to an increase in deaths at sea. According to the International Organization for Migration’s Missing Migrants Project, over 29,800 people died or went missing in the Mediterranean between 2014 and May 2024, making it the deadliest known migration route in the world. The correlation between reduced SAR capacity and rising fatalities is stark. As State-imposed administrative and legal barriers forced the gradual withdrawal of SAR ships, mortality rates rose sharply, despite a significant decline in overall crossings. The absence of dedicated humanitarian vessels does not stop people from attempting to cross; rather, it increases the likelihood that they will perish before reaching safety. With fewer SAR NGOs operating in the Mediterranean, commercial ships are increasingly being called upon to fill the gap, shouldering the burden of life-saving operations that they are neither equipped nor trained for. This has placed immense pressure on the shipping industry, forcing vessel operators and their crews into legal and logistical dilemmas that could have far-reaching economic consequences.

The trend towards bureaucratisation also raises serious concerns about the erosion of fundamental rights. The European Court of Justice has ruled that port State inspections must be justified by clear safety concerns and not used as a means to obstruct SAR activities.[9] Nevertheless, national authorities continue to exploit regulatory frameworks to hinder rescues. Recent cases before European courts highlight the precarious legal environment facing SAR actors, as authorities impose shifting compliance demands that are difficult to contest in real time.

The bureaucratisation of SAR obstruction is not merely a humanitarian concern but a systemic issue affecting maritime safety and legal predictability. If left unaddressed, it risks normalising the use of administrative tools to undermine fundamental rights, setting a precedent that could extend to other areas of humanitarian and civil society activity. As EU Member States shape global legal norms, their use of administrative barriers against SAR operations could encourage similar tactics worldwide, fundamentally altering the landscape of humanitarian assistance at sea.

 

Marc Tilley
Independent Migration Policy and Practice Advisor, Previously SAR Field Advocacy Coordinator and Researcher to the Centre for Humanitarian Action at Sea
marctilley@hotmail.com
X: @TilleyMarc

 

[1] EU Agency for Fundamental Rights (2024) Search and Rescue Operations and Fundamental Rights – June 2024 Update

[2]‘Crew of migrant rescue boat acquitted in Italy after seven-year ordeal’, The Guardian, 19^th April 2024

[3] European Center for Constitutional and Human Rights (2023) Legal Request Written by Francesca Cancellaro: Summary Prepared by the From Sea to Prison Project.

[4] Under the Facilitators Package, any person who intentionally assists the unauthorised entry, transit, or residence of a non-EU national into the EU, or, for financial gain, to reside there is to be sanctioned unless they are doing so for humanitarian reasons. bit.ly/migrant-smuggling

[5] OHCHR (2021) “Lethal Disregard”: Search and rescue and the protection of migrants in the Central Mediterranean Sea bit.ly/lethal-disregard

[6] EU Agency for Fundamental Rights (2024) Search and Rescue Operations and Fundamental Rights – June 2024 Update

[7] Médecins Sans Frontières, ‘MSF Ends Operation of Geo Barents with Commitment to Return to Central Mediterranean Sea’, 13^th December 2024

[8] Judgment of the Magistrates’ Court of Malta, Case of Claus Peter Reisch, Captain of the MV Lifeline (14^th May 2019)

[9] Council of Europe Commissioner for Human Rights (2021) A distress call for human rights: The widening gap in migrant protection in the Mediterranean

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