Seán Binder: the hypocrisy of EU border policy

In 2018 Seán Binder was arrested and detained on the Greek island of Lesvos while working for the search and rescue organisation ERCI. In the three years before its criminalisation, ERCI claims to have helped up to 55,000 asylum seekers at risk of drowning while crossing the Mediterranean.

The list of accusations levelled at Seán and his 23 co-defendants – including activists Sara Mardini and Nassos Karakitsos – includes espionage, facilitating illegal migration, belonging to a criminal organisation, money laundering, and using an encrypted messaging service (the instant messaging service WhatsApp).

The legal process, now in its sixth year, has involved two separate trials. The first involves misdemeanour charges that have already been dismissed and appealed several times. Those charges against Seán and Sara were dropped earlier this year, but Nassos and 15 others will return to court on 9 January 2024.

There’s still no word on when Seán’s second trial, concerning felony charges that could carry sentences of up to 25 years, will begin. The Free Humanitarians campaign is trying to raise €100,000 that lawyers estimate will be needed to support the defendants through both trials.

Since ERCI was shut down thousands have died every year while attempting to cross the Mediterranean. Meanwhile, in the name of preventing smuggling, the EU has invested tens of billions of euros into securing its borders and allowed hundreds more humanitarian workers to be arrested and criminalised for saving lives.

We talked to Seán to discuss his case and the confusing, contradictory and deadly EU border policies behind it.

Hi Seán, it’s great to meet you. You’re now nearly six years into an exhausting legal battle – two ongoing trials, surprising accusations, and multiple appeals.

To what extent do you think that the endless delay of this process has been part of the prosecution’s strategy? Do you feel they are deliberately keeping you in legal limbo?

Well, if I put myself in the shoes of any righteous prosecutor, and I consider what the priority is, it would be to try and stop illegal activity. I and the other defendants on this trial are ostensibly smugglers, money launderers, forgers, fraudsters, members of a criminal organisation, spies, and listeners of illegal radio frequencies. We are heinous criminals! If the prosecution truly believed all that, would they not want us behind bars as quickly as possible? If there were evidence against us, would we not be in prison already?

We're desperate to get to trial, we've been waiting for nearly six years. To my mind this says one of two things: either the prosecution is righteous but incompetent – wouldn’t discount it – or, the prosecutors know that we didn’t do anything wrong. And I think that the second is the more accurate answer, based on the evidence they’ve presented. It’s not difficult, for example, to understand that having WhatsApp doesn’t make you a spy.

The next best outcome for the prosecution is to create a state of uncertainty, and this has severe consequences – it’s incredibly expensive for us and it has disincentivised other search and rescue workers, humanitarians and volunteers from carrying out similar work. And that’s the point I think: it creates a chilling effect.

If tomorrow we have a trial and the court affirms that doing search and rescue is not smuggling, that using WhatsApp is not spying, and that fundraising for washing machines in a camp is not money laundering, then it will say to everyone that we can continue this work and the legal reality will be re-established. 

Because international law is pretty clear. There is a legal duty to do search and rescue. There is a legal responsibility to make sure that people have a right to life and a right to seek asylum. All that is dismissed and made uncertain by this trial.

Do you remember the moment you decided that you wanted to go to Lesvos to volunteer?

Sure, I think people often assume the answer is going to be that it was the image of Alan Kurdi, facedown on a shoreline, that jolted me into doing this. Horrendous as that picture is, that isn’t the case, and I say that for a noble reason and a less noble reason. 

The noble reason is that I was already outraged about what was happening at our border without the picture, and I think the reliance on pictures to motivate can mean that we miss a lot of outrageous things that aren't captured. During my studies, I specialised in EU defensive security policy, and it showed me that our border policy is more or less designed to stop smuggling, and by extension, to abandon people who are drowning. So I already knew these things before seeing that image. 

The less noble reason is simply that I thought it would be interesting. I love the ocean, I had trained to do rescue diving in the ocean, I am very comfortable on boats, and I enjoy that kind of work. At one point I also intended, ironically, to work with Frontex [the EU Border Agency] or an organisation of that kind. I enjoyed on a theoretical level questions like: how do we deal with a border, and how can we do it equitably? 

Of course, what I soon discovered is that Europe is not controlling its borders equitably or in keeping with the EU’s human rights obligations. And so that motivation to work with Frontex evaporated, as I'm sure has their openness to hiring me.

I think that’s probably true – Frontex doesn’t seem to be an organisation that is open to debating those questions you’ve raised.

It was interesting that after the Pylos disaster in Greece in June, when around 600 are thought to have died, Frontex’s human rights officer suggested that the EU could stop providing services to Greece, as a semi-threat that the Greek Coastguard should be doing their job properly. But that’s as far as it goes, and that isn’t nearly far enough in the context of the many well-documented cases of crimes: so-called pushbacks. 

When you look into organisations like Frontex you come across these strange contradictions. It’s been established by journalists that Frontex has been involved in illegal pushbacks – pushing boats full of people just outside of EU territory, in many cases leaving people to drown. But Frontex has also criticised nations like Greece for doing the same thing. How do you untangle what’s going on?

I completely agree, I think that contradiction and hypocrisy are some of the most obvious themes when you unpack the European border policy. If you look at EU policy on its global standards, or against the human rights standards set by the EU itself, it's contradictory and hypocritical. Even if you judge EU border policy against its own objective – to stop smuggling – it’s contradictory and just impractical.

For example, the EU has poured money into Libya to provide the so-called Libyan Coast Guard with ships, training and resources to stop smuggling. Journalists suggest that the EU Court of Auditors has no idea where this money is really going. I recently spoke to the legal professor and lawyer Omer Shatz who, with Juan Branco, wrote a complaint to the International Criminal Court, and has documented that the Libyan Coast Guard is regularly committing crimes against humanity. Then there are other reports that the Libyan Coast Guard, which was created to stop smuggling, is actually committing smuggling itself. All this suggests that the EU is directly financing or promoting the industry it’s trying to stop.

[For more on the Libyan Coastguard, listen back to this episode of aequa Radio with Solidarity with Refugees in Libya.]

Even if all that isn’t true, there is undoubtedly an indirect causal relationship between EU policy and smuggling. Think of three facts. First, wars exist, so people will try to seek asylum. Second, to be in the EU Territory, you need to have the correct documentation – a visa or a passport. Third, to be an asylum seeker, you must cross into the would-be host country's territory to seek asylum.

Since at least 2015, the EU has been securing its borders against people under the guise of trying to stop smuggling, which means we have border fences, attack dogs, and all kinds of things that make it impossible for anyone to make a non-smuggled journey. There's one possible route left for asylum seekers, and that is to undertake a dangerous, smuggled journey. 

The EU is causing smuggling and it is trying to push blame on search and rescue workers and humanitarians in a bid to obscure that reality.

What's your overall assessment of how things have changed on the EU border since your first involvement? Would you say things are getting better, or worse?

To my mind, things are worse now. In practice, there are fewer search and rescuers working, which has led to a commensurate rise in deadliness. UNHCR statistics show that in 2015 and 2016, the peak arrival times, the rate of deadliness was quite low compared to now. Fewer people are crossing, so we should be doing a far better job of rescuing them. That’s not happening because we're refusing to do so. People are drowning in EU territory, in one of the wealthiest continents in the world. 

On a structural level, I think the direction of travel is poor politically. Policies that we're voting into office are indicative of a growing anti-immigration worldview that is entrenching itself here in Europe and further afield. And that is frightening. I think these two things culminate in a disaster like Pylos.

There’s been significant media interest in your trial from the start. There's now a documentary and a feature film focused on your co-defendant Sara Mardini. What do you feel has been the impact of that media attention?

I think if the prosecution made one mistake, it was to arrest Sara, who was at the time already famous and has since become a superstar. That brought with it all the attention that a case like this should get but often doesn't. And it has meant that there is awareness around our case now, which is now viewed as the case of its kind. 

That is beneficial for me – I think we could still be in prison if it weren't for Sara because the international attention wouldn't be the same. It's also been really useful in drawing attention to these kinds of cases. 

The flipside is that it has made our case seem exceptional, in a way that it isn't. There are dozens of cases like this happening, but the attention on others is nowhere near the attention we receive. That is partly because the prosecution has changed its strategy, but also because they don't have a Sara in their story. 

What Greek authorities have started to do, is to not formalise a lot of these prosecutions. I have friends on the islands who are currently being investigated but are never formally charged. This means that there's nothing that the media can hook onto – like a trial date. It just goes unnoticed, but the damage is that all the would-be volunteers are scared away anyway.

I worked for the research platform Resoma after my initial release, and we published a report that suggested at least 171 individuals had been criminalised in relation to just one EU directive since 2015. And that says nothing about intimidation, threats and other chilling effects. I feel that our case indirectly obscures that larger context.

When the media reports on these kinds of cases the spotlight is so often on the Mediterranean states – Italy, Greece, Malta etc. – who are villainised for crimes committed on the EU border. Do you feel that this narrative can distract from the responsibility of other EU nations?

Absolutely. Disappointingly this kind of villainising argument often comes from left-leaning media, and from people who stand in solidarity with me or others who have been criminalised. It’s an argument that suggests that the people of Lesvos, or Greek people in general, are simply racist. That is a gross oversimplification and it's problematic not just because it's wrong, but because it obscures the important work that we'll have to do to make sure that these kinds of things don’t happen. If we simply blame people in Greece and don't look at how we are contributing to these problems, or how the broader context is creating these policies, then we can’t address them.

Lesvians aren't inherently racist, there will be a portion of them who hold racist views, as there are in any society. I think what we’re seeing is a growing sense of abandonment, frustration, fear, and uncertainty because the government in Athens basically applied a lockdown policy on islands like Lesvos and saddled those islands with the problem of asylum. Meanwhile, Greece has itself been saddled with an inequitable distribution of asylum seekers by the EU. So I don't blame any individual nation for that kind of policy. This is a wider structural issue. 

I guess for people of northern Europe, blaming Greece absolves them of responsibility.

Exactly. What happens at EU borders also happens in the name of German citizens who live in Ireland, like me. It's a collective European issue. Those policies are being enacted to protect you and me or to protect our so-called ‘European values’ from outsiders who apparently threaten us. That's dangerous and unfounded and should be challenged.

You’ve recently converted to working in law. I imagine that the trial and the knowledge that you gained must have had a big influence on that decision.

Yes, for masochistic reasons, apparently I haven't had enough of the criminal law yet! I will be devoting my professional life to it if I’m deemed fit and proper. One way in which the trial has impacted my personal life is that the uncertainty about whether or not I'm guilty has also made it difficult for would-be employers to take a chance on me. I have to go through a hearing process before I can undertake the bar exams.

My pivot to the law grew out of two things. Firstly, watching my lawyers defend me filled me with an inordinate amount of pride, I found it so impressive. Secondly, my five years of doing advocacy work have been characterised by failure. More often than not, I have failed to do any successful advocacy. In fact, I think I've only failed. We haven't had any effective policy change that would recenter human rights in the way that it should. 

I wouldn't blame yourself entirely for that.

I wouldn't either, of course! But if I can improve then I should, and the folks that I have seen be most successful in this space are lawyers. There is something about a lawyer's ability to advocate purely from a rhetorical point of view, that is impressive. Hopefully, I can mirror some of the things that I've seen in my time with professionals. 

Looking at the big picture, what in your mind is the ideal situation towards which we should be striving – what changes in Europe’s approach to migration would you like to see?

I have a lot of conversations with folks who say to me that the things I want are naive. They say that it’s utopian of me to suggest we can live in a world where all borders are completely open. 

Well, I push back against that on several levels. Firstly, completely dismantling borders is not something I’ve advocated for. I think there’s a strong argument for that worldview, but I’ve always advocated for something far less controversial. I’ve only demanded that the EU simply lives up to the standards it has set for itself already. I’m asking the EU to perform search and rescue, which would be in keeping with the many maritime conventions the EU has signed into the world. The right to seek asylum is something that the EU has a responsibility to uphold today, as is the right to life, and the duty not to criminalize people who are doing search and rescue work. 

This is not a controversial worldview, it’s just asking the EU to do what it already claims to. I think it's naive to suggest that we can afford to live in a world in which we don't respect the law, which is the direction in which we're currently moving. We're entering a world where governments are reneging on their legal responsibilities because we are impulsively driven by fear.

How do we get there?

There are three levels that I try to work on. The most obvious for me is to strategically litigate for the application of human rights laws and criminal laws. The more structural approach is, of course, advocating on a political level, and speaking with politicians to try and raise this issue on an international or national agenda. 

What I think is the most fundamental thing, and this is where everyone can get involved, is to work to change worldviews, and to convince people that this kind of change is even something we want. Without convincing people, we don't have the democratic mandate to fight for these things.

I think it means challenging folks who tell me, for example, that all Lesvians are racist. Polarizing rhetoric like that will entrench someone's worldview. What we have to do is listen in good faith to people, try to understand them, address the underlying fear, and work to convince them that the world we want to live in has human rights at its centre, even if it makes us uncomfortable. Because we all stand to benefit from that. 

Donate now to the Free Humanitarians campaign to support Seán, Sara, Nassos their 21 co-defendants in their legal battle.

For more from Seán, listen back to an on-air interview with Edna Bonhomme and Abby Young-Powell below.

All images courtesy of Seán Binder and Free Humanitarians.