Permissible People Smuggling and the Duty of Rescue: Insights from Backstreet Abortion

A. Smuggling and the International Refugee Regime

It is a shared view²⁷ that the way the global refugee regime is structured combined with States’ attitude to border securitization are actively designing a system that requires smuggling: ‘New barriers are forcing migrants to pursue more dangerous journeys and seek the services of more established mafias and criminal organisations’.²⁸ The point, they say, is that European Member States force migrants who want to claim asylum to cross borders illegally.²⁹ Smuggling becomes necessary, since it is often migrants’ only possibility for crossing borders in order to be able to fully exercise their right to seek asylum.

The asylum system operates in a way that is structurally unjust due to the externalisation of borders, remote-control policies, and the failure of resettlement schemes.³⁰ Parekh refers to this as to ‘the harms we have created’. The claim is that the (mainly Western) states that have been involved in setting up and funding the refugee protection system ‘have created a situation in which the vast majority of refugees are effectively unable to get refuge in any meaningful sense; that is, they are not able to access the minimum conditions of human dignity’.³¹ This situation, the author claims, is unjust.

Refugees around the world face what has been called an ‘impossible choice’ between three options: prolonged encampment, urban destitution, or dangerous journeys³² to be able to seek asylum in Western states.³³ For many, the answer is the third option: asylum in the Global North.³⁴ The increasing securitisation and externalisation of borders, which prevents would-be asylum seekers and would-be refugees from exercising their right to ask for protection in the Global North, is the relevant proximate source of injustice. While it is true that would-be refugees can still seek protection in neighbouring countries and the right to seek asylum is generally understood to be a right to seek protection in any suitable location, rather than in a country of one’s own choosing,³⁵ it is also commonly understood that the conditions of refugees in the Global South do not meet the minimum requirements for genuine asylum.³⁶ This situation is, to a significant extent, the result of the actions of Western states, both in terms of structural factors and direct injustices.³⁷ Furthermore, it is evident that states in the Global North are actively preventing individuals from seeking asylum in their own territories,³⁸ a practice that is both unjustifiable and illegitimate, and that also contributes to and reinforces prolonged encampment and urban destitution in the Global South.³⁹ As Parekh points out, Western states are ‘in part responsible for the inability of refugees to access refuge’.⁴⁰ In order to claim asylum via legal routes, refugees would generally need to be granted a visa to be allowed to reach the country in which they want to claim asylum. The point is precisely that they cannot obtain visas. Presumptive receiving countries do not issue visas because they are aware of the fact that if people from refugee-producing countries were allowed to legally cross borders, they would likely to ask for asylum in their territories.⁴¹ The result is that would-be asylum seekers undertake illegal routes which put them at risk of harm.⁴² Desperate people do not stop crossing borders, rather they engage in dangerous journeys, risking ending up in the hands of traffickers or exploitative smugglers. Western states are directly responsible for this. As cogently pointed out by Tinti and Reitano,

[T]he EU bloc offers no possibilities for asylum seekers to apply for asylum outside the EU. Thus, in order to begin the process, an individual wanting to seek protection within the EU must reach and cross EU borders illegally. This paradox, in which the EU at once guarantees asylum seekers the right to protection, while systematically trying to prevent them from reaching the EU in the first place, is at the heart of why refugees seek the services of migrant smugglers. If one wanted to create a system that was designed to enrich the migrant smuggling industry, it would be this one.⁴³

Smugglers are often the only available means to reach safe countries to ask for protection. In a constellation of policies and application of regulations of questionable legitimacy, they are necessary. If thousands of migrants have died in the Mediterranean or while crossing other dangerous borders, the blame falls to a significant degree on Western governments that choose and enforce the restrictions on legal entry.⁴⁴

Consider, once again, some relevant insights from the case of abortion bans or restrictions. When governments outlaw voluntary interruptions of pregnancy (in all its forms and for whatever reason) with no safe and legal options to deal with unwanted pregnancies, women and all those who can get pregnant rely on black market abortionists. Given the lack of access to healthcare facilities and appropriate equipment, a significant number of women die. This may be attributable to the failure of abortionists to adhere to the requisite standards in some, if not many, instances. However, it seems evident that the governments of states that prohibit abortion and implement restrictive policies bear responsibility for the resulting consequences and must be held accountable.⁴⁵ Therefore, we can think about migrant smugglers as, on the one hand, dangerous service providers,⁴⁶ and, on the other hand purveyors of a service that is needed to remedy an unjust situation.⁴⁷

In this scenario, smuggling cannot be considered wrong per se, even if it means breaking the law. It can be considered an act of resistance to unjust border practice and regulations relative to asylum seekers, or, at the least, a refusal to comply with unjust demands. What makes smuggling a wrongdoing, when it is one, is not the mere act of helping refugees to cross borders illegally in exchange of monetary gain, but rather the way in which this service is provided. What I intend to do now is to consider whether we can give a more precise account of morally permissible smuggling in terms of what conditions need to be met and how these conditions can be ensured.

B. Permissible smuggling

To argue that the primary responsibility falls on governments implementing unjust border policies or sustaining an unfair refugee regime does not mean claiming that smugglers bear no responsibility at all. They are still blameworthy for the unnecessary deaths and suffering they cause as they often operate impermissibly, by exploiting migrants and imposing unnecessary risks and dangers on them. For example, thousands of migrants have died in the Mediterranean because smugglers put them on unseaworthy, damaged, and overcrowded boats.⁴⁸ Another example of how smugglers wrong migrants is through sexual violence and transactional sex, for which (mostly) women are forced to swap sexual intercourses in exchange of help on their journey to Europe.⁴⁹ Another way for smugglers to wrong migrants is by exploiting them. There may appear to be two different ways in which smuggling can be wrongfully exploitative. The first is by extracting excessive benefits from the migrant, for example asking an excessively high price for the service. The second is by using the force and/or coercion. However, the latter is not smuggling, but trafficking.⁵⁰ Since it is no part of this argument to defend trafficking, we will need only to concern ourselves with the case of price exploitation.

Müller challenges the idea that commercial human smuggling is inherently morally wrong, even if it implies a very high price, for two reasons.⁵¹ First, we have here a win-win situation – both migrants and smugglers are better off because of this transaction. Second, it is not morally worse ‘for Anna to ferry Bert to A for a very high price than not to interact with him at all, given that (1) the exchange is better for Bert, (2) Bert has consented to the exchange, and (3) the exchange has no serious negative effects on others’.⁵² Accordingly, Hidalgo maintains that people smuggling is in principle permissible insofar this service benefits the migrants involved, who also consent to this service.⁵³

Instead of focusing on the benefits of smuggling services, I will only consider how these services are provided – which I argue should be the starting point of a moral and political evaluation of smuggling. Indeed, the condition of ‘benefit’ is ambiguous and arbitrary. For it considers the consequences of an action rather than the action itself, and these are difficult to evaluate objectively a posteriori and may leave room for violations and abuses. I would therefore prefer to focus primarily on the way in which this interaction is conducted, from a non-consequentialist point of view.⁵⁴ Aloyo and Cusumano go in this direction and list four conditions under which human smuggling can be considered morally permissible: clear consent to a smuggling agreement; no violation of human rights (by the smugglers or their clients); presence of benefits if the client reaches the destination; the smuggler informs the client about risks and attempts to mitigate them, at reasonable costs.⁵⁵ However, these requirements are not convincing for two reasons. First, the requirement of benefits at arrival tells us nothing about the way smuggling is conducted. Instead of focusing on the procedure of this service, they evaluate its permissibility on the outcomes which are often out of the control of the smuggler. Whether a smuggling process meets this requirement would be a matter of moral luck. Secondly, we ought not to concentrate on human rights violations by clients, unless these arise as a result of the actions or omissions of smugglers who are the focus of evaluation. In evaluating the permissibility of a service, the relevant objects of evaluation are the service and provision of the service by a provider, not the clients. Think again about the case of backstreet abortion: if we are trying to decide whether it is morally permissible, we should not care of whether clients in need meet certain conditions (or if they act morally), but only if abortionists do.

I argue that we can envisage a list of necessary and desirable (non-exhaustive) conditions that would qualify refugee smuggling as morally permissible. According to this account, there would be different degrees of moral permissibility, depending on the range of desirability conditions that the activity meets in addition to its satisfaction of the necessary conditions. For it to be justified and morally permissible, smuggling should meet the absence-of-intentional-harm requirement. This requirement would include the following individually necessary and jointly sufficient procedural constraints: a) no human rights violation by the smugglers; b) no exploitation; c) clear anticipated price negotiation; d) as complete information as possible on the steps of the journey, which includes route and destination.⁵⁶ We can also identify a range of desirable features that would increase the quality and standing of permissible smuggling. Among these desiderata, we can specify: enough knowledge (from the side of the smugglers) of the global refugee regime and related states’ policies; adequate information regarding the asylum systems of destination countries that is shared with asylum-seekers; assistance on (preparation for) asylum applications; training on sexual and gender-based violence, trauma, and post-traumatic stress disorder; the provision of psychological counselling; cultural and linguistic mediation services; special consideration to children’s needs, to women’s sexual and reproductive healthcare needs, and to sensitivity to LGBTQ+ instances.

Similarly, we can think of several requirements that would make backstreet abortion permissible: being practiced by a surgeon and/or gynaecologist, ensuring good hygienic conditions so as to avoid undue risks of infections and sepsis, an attentive postoperative course would fall under the necessary conditions. As for pharmacological abortion, it would be best if only doctors and pharmacists provided the pills, ensuring that the patient does not have any medical critical conditions that would make such treatment dangerous.

What I am arguing here is that the absence-of-intentional-harm requirement is necessary and sufficient to consider smuggling justified and permissible, while the list of desiderata would meet Hidalgo’s benefit requirement.⁵⁷ Obviously the more desirable conditions a specific smuggling service meets, the more ethical it ends up being. Of course, it seems unavoidable that the more ethical smuggling activity is, the more expensive it would be. This might be problematic as it is likely to price some people out of the smuggling market by preventing them from accessing the service. However, we can imagine smugglers differentiating first, second and third-class tickets – as already happens with transport services⁵⁸ – to provide the service with different price options for the desirable but not necessary requirements. Smugglers who seek only a fair return (e.g., non-exploitative) and not to maximise profit could use the revenue from first class to keep the price of economy class tickets lower than it would otherwise be – just as airlines do. Tickets would then be available at a lower price, and therefore to a larger number of people. To maximise the chance for refugees to access smuggling services and to subsidise the more expensive services, we can then envisage a system of international donations from private individuals to smugglers who meet the requirements for permissible smuggling.

The point is that we can imagine different cases of smuggling, from unjustified forms of smuggling to the non-ideal cases of permissible smuggling, to the most ideal circumstances of ethical smuggling, where smuggler benefit refugees both ex ante and ex post.⁵⁹

Having clarified the requirements for permissible smuggling, it is worth going back to the issue of monetary exploitation. The point is that, as with the case of backstreet abortion, the exchange of money (or other material benefits) and even profit do not make smuggling wrongful per se.⁶⁰ In many other cases, we consider it morally permissible to earn money from assisting people in need. It is worth noting that medical professionals, such as doctors, nurses, and elderly care workers, as well as NGO workers, are typically compensated fairly for their services. So, although non-for-profit smugglers⁶¹ would be morally preferable, for-profit smuggling is not impermissible on this account. However, as with the aforementioned services, permissible smuggling (and backstreet abortion) ought not be exploitative, since this does not meet the absence-of-intentional-harm requirement. So, along with Øverland and unlike Müller, I argue that smuggling, to be permissible, cannot take advantage of desperate migrants who lack reasonable alternatives by extracting excessive benefits from them.⁶² Even though it is reasonable to recognise that this happens more than would be desirable, we should be cautious in asserting that this is the entirety of the narrative. First, ‘it seems dubious that human smugglers are able to secure a monopoly and thus charge monopoly prices’.⁶³ Second, ‘smuggling markets are sometimes fairly competitive […] Competition reduces the bargaining power of smugglers’.⁶⁴

I am not arguing that people cannot act out of solidarity. My point is that smugglers can also be considered to be acting permissibly if they operate under the constraints that I have specified. So let us return to the trial against the NGOs operating in the Mediterranean. If they turned out to be engaging in smuggling, they could still be considered as justified in doing so, as acting in morally permissible ways – and even exhibiting ethical virtues, the more desirable conditions they meet. Notice though that this argument only holds under extremely non-ideal conditions. If Western states were to provide safe passages and walk the talk when implementing resettlement policies, then smuggling would be morally wrongful tout court just as would be backstreet abortion in contexts where voluntary interruption of pregnancy is legal, safe, and guaranteed by the state.

A. Real Motives Objection

First is the Real Motives Objection. Smugglers do not act for the right reasons and do not care about refugees’ wellbeing and safety.⁸³ They are just greedy individuals who want to take advantage of other people’s misery and desperation.⁸⁴ Therefore, people smuggling is impermissible.

Reply. The answer to this objection is twofold. On the one hand, this is not entirely true: ‘[m]any of the smugglers we spoke with were proud to be part of networks that save people from war and persecution’.⁸⁵ Some smugglers are indeed motivated by ethical considerations, although many smugglers report providing this kind of service because they have a family to support, and they lack employment options.⁸⁶ The same applies for the case of backstreet abortion. Even though it is certainly true that some backstreet abortionists did and do provide this kind of service out of self-interests, it would be a mistake to argue that they all act only for selfish reasons.⁸⁷ Yet, even if it were true that smugglers all only act out of selfish personal motives, this does not invalidate the argument. Hidalgo⁸⁸ notes that even if your motives are defective, your actions can still be morally permissible and justified; there is a substantial difference between action and motives, and we should not mix them up.

B. Non-deserving Migrant Objection

Second is the Non-deserving Migrant Objection.⁸⁹ Smugglers help cross international borders not only would-be refugees, but also economic migrants and, potentially, criminals and terrorists. So, smugglers should have prima facie reasons to believe that a client holds an asylum claim (e.g., in virtue of coming from a state at war, or where persecution of various kinds happens), and should not provide their service indiscriminately.⁹⁰

Reply. It is not smugglers’ responsibility to assess claims of asylum and enforce controlling systems. If they did so, they would act impermissibly because they would not meet the procedural requirements: they are not state actors and cannot operate as such. Furthermore, refugees’ journeys are not linear from A (their state of origin) to B (safe countries where they would ask protection), but usually involve more than one smuggler, and many route breaks and resumptions, which makes this assessment requirement unfeasible. Moreover, what if the migrants are too afraid, or traumatised, to tell their stories to smugglers (think of victims of sexual and gender-based violence, for example)? This would be an impermissible way to proceed. As for the risk of unknowingly assisting criminals and terrorists, this risk exists, although it is minimal.⁹¹ However, the primary responsibility does not fall on smugglers, but on those who create the conditions for this risk in the first place – namely the states enforcing the unjust structures that prevent safe passage for asylum seekers.

C. Open Border Objection

Third is the Open Border Objection.⁹² Smugglers cannot know for sure whether they are providing their services to economic migrants or refugees: they cannot be sure that, once their clients have arrived in their chosen destination country, they will apply for asylum nor is it guaranteed that they would obtain international protection. So, in the end, this seems like an argument for the permissibility of smuggling of all migrants, which is only consistent in an open border framework in which it is assumed immigration restrictions of any kind are unjustified.

Reply. My argument does not presuppose an open border framework. Given the injustice of the international refugee regime as it currently operates, migrant smuggling is permissible and justified because, among the migrants that are smuggled, it is very likely that there are also refugees. Will this involve smuggling of economic migrants? Yes, of course, since smugglers ought not be entitled to check the validity of migrants’ claims. If the international refugee regime was structured in a way that makes it easy for refugees to reach safe countries legally, then smuggling would not be permissible anymore, nor would organised citizens bear any kind of obligations to support smuggling operations. Supporters of open borders may claim that the smuggling of economic migrants is also permissible and that it constitutes a duty on similar grounds since immigration restrictions are inherently unjust. The objection might be further developed to argue that the argument is directed only at Convention refugees and that it therefore excludes all those who, although not recognisable as Convention refugees, are nonetheless forced migrants. These individuals would be smuggled as a collateral effect, just as economic migrants are. However, this discussion does not address the question of whether and to what extent borders are legitimate, nor does it address the question of who should be recognised as a refugee and whether we should change the definition of refugeehood. This would require a controversial extension of the argument, whereas my claim depends only on a commitment that states already acknowledge, namely, that individuals have a right to seek asylum when they have a Convention or, at least, a humanitarian claim. According to my argument, states’ actions are illegitimate and unjust precisely because they do not comply with the agreements and conventions they already recognise. Moreover, it is very plausible that those compelled to flee their homes who are not Convention refugees may be granted at least some form of humanitarian protection in Western states.