By Maria Cullen and Ishak Jacues Cavin
The recently thwarted attempt by the Greek government to criminalise the search and rescue missions of civilians in the Mediterranean demonstrates that European states would prefer that all assistance of refugee journeys be understood as ‘smuggling’ rather than rescuing. A protracted trial which followed the arrest of several aid workers on the island of Lesvos in 2018 [Arrest of Syrian ‘hero swimmer’ puts Lesbos refugees back in spotlight | Greece | The Guardian] finally ended in failure for the state’s case on 15 January 2026 [Greece: Aid workers cleared of human trafficking charges]. The defendants avoided prosecution as people smugglers yet the trial arguably still achieved its desired effect in deterring others from engaging in sea rescue. The fact that the defendants were accused of using encrypted messaging (Whatsapp) to locate boats in distress highlighted the trial’s absurdity, yet it also demonstrated the lengths to which the state was willing to go to criminalise search and rescue. Meanwhile, Australia has increasingly targeted refugees and vulnerable minors who engage in cross-border maritime journeys from Southeast Asia in the last two decades. Even though some of those arrested as ‘smugglers’ are more accurately defined as victims of human trafficking, jail sentences for those found to have assisted boat journeys in any way became the norm in Australia, as symbolised by the case of Ali Jasmin in 2010 [Indonesian boy wrongfully jailed in WA adult prison for people smuggling has conviction overturned | Australian immigration and asylum | The Guardian].
This wide-net application of the category of ‘smuggler’ by fortress states should prompt reflection among media commentators about what language is used to describe refugee journeys. It should also encourage researchers to ask questions about how we got here – was the ‘smuggler’ designation always applied so liberally or was public discourse more in tune with the nuances of forced migration in the past? How should we account for the wide variation in roles – from professionals who pursue a naked profit motive to humanitarians, opportunistic fishermen and refugees themselves – who are deemed to engage in ‘people smuggling’? Among the various levels of involvement with refugee journeys collapsed into the ‘smuggler’ category, it is clear that many of these people can actually be seen as rescuers. Furthermore, we need not limit our understanding of rescue to the prevention of drowning by Western humanitarian professionals. As long as desperate people seek ways to cross borders, people smugglers will offer their services. Fishermen and even professional smugglers that facilitate maritime journeys for refugees who have no other way to seek international protection can also be understood as rescuers, but only if they act in an ethical and non-exploitative manner. It is their conduct, rather than the mere act of facilitating cross-border travel, that should be scrutinised for criminality. In addition, the actions of people smugglers cannot be separated from the global legal and policing infrastructure that shapes the nature of clandestine journeys.
Beyond Illegality
The legal status of refugee smuggling exists in a complex grey area where international human rights and state sovereignty collide. From the perspective of state border sovereignty, these journeys are classified as illegal migration because they bypass official immigration procedures. However, under Article 14 of the Universal Declaration of Human Rights and Customary International Law, these movements are recognized as forced migration, granting refugees the right to claim asylum. While the UN Protocol against the Smuggling of Migrants (2000) labels smuggling as a transnational crime, “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident” (see United Nations Convention against Transnational Organized Crime), it simultaneously dictates that refugees should not be prosecuted for being victims of smuggling, preserving their right to seek protection regardless of their method of entry. This framework is further defined by the Protocol against the Smuggling of Migrants (2000), which distinguishes between criminal profit and humanitarian assistance (see Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime). However, this creates a problematic binary that fails to capture the reality of the trade, as it overlooks many non-criminal actors who must still charge for essential operational costs, such as fuel and supplies, to facilitate a journey to safety.
While international law defines people smuggling as a transnational crime, smugglers occupy a diverse moral spectrum based on their motives (Triandafyllidou & McAuliffe, 2018). This range begins with sophisticated transnational syndicates running corporate-style for-profit operations, followed by informal or amateur networks (such as local fishermen) who view the act as pragmatic labor. A more nuanced category includes refugee-smugglers who facilitate journeys to fund their own escape or assist peers. Finally, the spectrum includes humanitarians, such as search-and-rescue volunteers, driven by altruism and the moral necessity of removing people from harm regardless of legal restrictions.
To assess the morality of these acts of smuggling, we must distinguish between inherently wrong and contingently wrong actions (Müller: 2018). Inherently wrong acts are those that are morally negative regardless of the situation, such as murder, rape, and physical violence. In contrast, contingently wrong acts, like smuggling, are not necessarily evil in themselves but depend on the context. Violating immigration laws is considered a contingent wrong. It is a legal offense, but it does not outweigh the moral benefit of saving a life. Therefore, while the violence committed by some smugglers is an inherent crime, the act of facilitating a border crossing is not a moral evil.
People smuggling is morally permissible when it facilitates the escape of refugees from grave human rights violations (Hidalgo: 2018), especially given that affluent states have implemented restrictive policies that obstruct legal channels for asylum. For many Rohingya refugees, for example, smugglers are the only option available to escape the threat of death in Rakhine state in Myanmar or in the appalling conditions of Cox’s Bazar refugee camp in Bangladesh (see Rohingya refugees express feeling unsafe, lacking control over their future | MSF). When a legal system fundamentally contradicts a person’s right to seek asylum, breaking that law is not a moral wrong. Charging for smuggling services is also not inherently exploitative if it involves a consensual interaction where the refugee benefits from the assistance and the fees serve as necessary compensation for the risks and costs incurred by the smuggler.
However, for smuggling to be ethically sound, certain moral obligations must be met by the facilitators. First, smugglers must provide accurate information about the journey’s risks to ensure valid, informed consent from the refugees. Second, they must prioritize human rights and risk mitigation, ensuring there is no violence or withholding of food. Smugglers must use the safest vessels possible rather than choosing death traps for higher profits. Ultimately, while the ideal solution is for countries to provide safe legal routes, in their absence smuggling can be considered a morally permissible act of helping individuals exercise their fundamental right to seek asylum.
Commercial Smugglers
The current maritime routes are rife with exploitation and violence. If states truly wanted to eliminate the commercial smuggling market, the creation of legal and safe channels, such as through special refugee visas, could achieve this. If such regular and inexpensive migration paths were available, the demand for professional smugglers who operate in the shadows would naturally decline. However, in the absence of these safe routes, the current “total war” on smuggling often backfires, forcing refugees into even more dangerous methods of escape. So long as states fail to meet their moral obligation to provide legal pathways, smuggling will persist as a clear symptom of the institutional failure to uphold the fundamental right to asylum.
If we are to imagine an ethics of smuggling, a critical component of this would involve the obligation of facilitators to prioritize human rights over excessive financial gain. While the collection of money is often a rational compensation for the high risks and operational costs of the journey, it becomes immoral when profit motives lead to the use of extremely unsafe vessels when safer options are available. Ethical facilitators have a duty to mitigate risk by providing adequate food, water, and seaworthy boats. Furthermore, they must provide accurate information regarding potential dangers, such as drowning or detention, to ensure that the refugees’ consent is truly informed and valid.
The distinction between a criminal smuggler and an ethical facilitator lies in their treatment of the refugee and their adherence to human rights. Smugglers who engage in violence, withholding food, or sexual harassment commit inherent wrongs that must be prosecuted by host countries. However, the transactional nature of smuggling itself is not an inherent crime if it aims to help refugees obtain their rights. Without a profit motive, these essential services might not exist, potentially harming those with no other way to escape. Therefore, the commercial market is justified when it serves as a “savior” for those with no legal options, transforming the smuggler into a party that helps individuals exercise their moral right to life.
The Power of Smugglers on Boats
However, the perception of smugglers as “saviors” is not always straightforward, particularly in the Rohingya context where the line between assistance and exploitation is deeply blurred. Rohingya smuggling facilitators primarily consist of Bangladeshi nationals for those fleeing camps in Bangladesh and fellow Rohingya refugees who assist in the journey, typically involving approximately five crew members per vessel who manage the maritime passage. Although these facilitators are often the only available means to escape genocidal persecution in Myanmar or dire conditions in Bangladesh, the reality of these maritime journeys is fraught with ethical tension. Based on data from the Mixed Migration Centre (2023), this complexity is reflected in refugee perspectives: approximately 70% of Rohingya refugees perceive smugglers as criminals due to the widespread violence and abuse endured at sea, yet simultaneously view them as essential actors who help them achieve their migration goals. This duality demonstrates that while a smuggling group may act as a “savior” by providing a route to safety, they can transform into perpetrators of “inherent wrongs” when they employ physical violence or sexual harassment during the passage.
Professional smuggler networks and human rights abuses committed against refugees at sea are nothing new but the relations between passengers on boats are highly contingent on social context. For Vietnamese people who fled en masse by small boat in the late 1970s and early 1980s, many of their ‘smugglers’ were actually members of the same peer group as them and also refugees. Oral history interviews conducted with some of these journey facilitators demonstrate that the monstrous figure of the criminal people-smuggler is a fiction in many refugee voyages. Take Tuan Anh Le for example, who left Vietnam by boat in 1981 (see Oral History of Tuan Anh Le — Calisphere). He was intimately connected to the family who organised the journey, and helped them to take payment from fellow passengers. He personally did not have to pay for his journey because he helped to build the vessel and agreed to act as security guard and maintainer of order at sea, referring to himself as the ‘captain’. Anh Le performed a range of tasks on board – he stayed awake for several nights bucketing water off the boat and he made sure others also stayed awake. He describes how he took ‘care of’ the sick, a responsibility which he says was sometimes resented by others, suggesting a level of heavy-handed control may have been used to ensure people would ‘obey [his] rules’ as captain. Finally, he describes how he prevented the boat being boarded by pirates (notorious for their violence against refugees) by shooting at them. Legitimate questions can be asked about Anh Le’s conduct on board that suggest some moral ambiguity around his maintenance of order among passengers. Nevertheless, it is clear that the safety of passengers and their survival of the journey was his primary goal. In the interpretation of smuggling adopted by many states today, Anh Le would be classed as a smuggler and potentially imprisoned for several years as a result of his actions. Yet during the Cold War Vietnamese refugees were recognised as deserving of sympathy for having fled an authoritarian communist regime, and Anh Le was instead resettled to the United States. Does this make sense? Should we view Anh Le’s story (of active engagement with the facilitation of the journey and of self-defence at sea) as inherently more criminal than the actions of any other refugee on board his boat? And where should we draw the line between professional smuggler and refugee-led journeys?
Degrees of Ethical Legitimacy
While the Vietnamese context shows that the maintenance of ‘order’ at sea can occur without large-scale violence and dehumanisation, the Rohingya situation remains a profound dilemma: without smugglers, refugees cannot escape, yet the pervasive violence and abuse occurring on these boats constitute inherent crimes that must be legally prosecuted. The degree of ethical legitimacy for smugglers depends strictly on their conduct and the necessity of their role. A moral defense of smuggling applies when the practice aims to help refugees exercise their right to asylum and is free from exploitation. While a fisherman taking money for fuel or a refugee navigating a boat might technically violate immigration laws, such acts are morally permissible if they fulfill the obligation to preserve life. However, this ethical standing vanishes instantly if the facilitator crosses the line into inherent wrongs, such as physical violence, withholding of food, or sexual abuse. Thus, the response to these actors must distinguish between those who provide a life-saving service and those who use the refugees’ desperation to commit acts of violence.
Border Policing and the Right to Asylum
In recognition of the humanitarian and solidarity-based nature of some acts of ‘smuggling’, we must ask who is served when we continue to echo statist narratives of criminalisation and describe such a wide range of actors as ‘smugglers’? States have recognised the legitimacy of cross-border refugee journeys in the past. The contrast between the relatively hospitable, flexible understanding of mobility for Vietnamese refugees and the contemporary inflexible criminalisation of cross-border movement should be challenged much more overtly by researchers and public commentators. An attention to the ethical conduct of journey facilitators, along with the historical transformations in their treatment by states, is crucial if we are to highlight the immorality and hypocrisy of contemporary blanket criminalisation efforts.
As researchers, we should point out that smugglers can function as rescuers by facilitating essential access to asylum, provided they strictly uphold the dignity and rights of refugees rather than exploiting their vulnerability. Finally, a truly ethical resolution of the human smuggling dilemma requires the establishment of accessible, legal asylum pathways that render the illicit market obsolete by providing a safer, more affordable alternative for those seeking refuge.
References:
Hidalgo, Javier. “The Ethics of People Smuggling.” in Melina Duarte, Kasper Lippert-Rasmussen, Serena Parekh, and Annamari Vitikainen (eds.), Refugee Crisis: The Borders of Human Mobility, 65–78. London: Routledge, 2018. http://dx.doi.org/10.1080/17449626.2016.1245676
Triandafyllidou, Anna, and Marie L. McAuliffe, eds. Migrant Smuggling Data and Research: A Global Review of the Emerging Evidence Base. Vol. 2. Geneva: International Organization for Migration, 2018. https://ced.cat/wp-content/uploads/2018/07/Migrant_smuggling_data_vol2_0.pdf
Mixed Migration Centre (MMC). Use of Smugglers on the Journey to Indonesia among Rohingya, Afghan and Somali Refugees. Asia and the Pacific 4Mi Snapshot. Geneva: MMC, 2023. https://mixedmigration.org/wp-content/uploads/2023/07/288_Smugglers-on-the-journey-to-Indonesia.pdf
Muller, Julian F. “The ethics of commercial human smuggling,” European Journal of Political Theory, 0(0), 2018, 5, https://doi.org/10.1177/1474885118754468.
This article was developed during a writeshop in Kuala Lumpur for the Maritime Refugee Lab, funded by the Volkswagen Foundation.
Maria Cullen is a Postdoctoral Researcher on the ‘Solidarity, Sovereignty and Sanctuary on the Seas: A Global History of Boat Refugees’ project (A global history of boat refugees) at University College Dublin.
Ishak Jacues Cavin is a Jesuit Scholastic at Sanata Dharma University and Jesuit Refugee Service (JRS) Indonesia. He served as JRS Jakarta Coordinator (2021–2023) and JRS Aceh Advocacy Officer (2023).
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