Criminalizing solidarity,regulating the enemy: Analyzing the criminalization of migrant solidarity through ‘enemy under-criminalization’ in Greece

Abstract

This article investigates why state authorities criminalize acts of solidarity with migrants and refugees, focusing on Greece and application of the theory of ‘enemy under-criminalization’. This concept extends Stumpf's crimmigration's emphasis on the fusion of criminal and immigration law, illustrating how legal and social hierarchies produce a distinct legal space that diverges from normative legal principles. Applying this concept to Greece's exclusionary legal framework and recent cases, it demonstrates how the state criminalizes individuals and organizations assisting migrants. The central argument is that solidarity is treated with hostility because of its association with the ‘enemy’ (irregular migrants and refugees) and its potential to expose illicit tactics used by the Greek state to control immigration. Ultimately, the article argues that these actions operate outside the rule of law, using punitive measures that bypass traditional legal safeguards, undermine humanitarian efforts, and raise concerns about the erosion of rights and the role of law in perpetuating exclusion.

Keywords

criminalization of solidarity enemy penology migrant smuggling Greece enemy under-criminalization crimmigration

Introduction

In the European Union (EU), migrant solidarity has faced ongoing challenges, with the criminalization of aid to irregular migrants¹ dating back to 2003. This trend has intensified, reflecting a political climate that delegitimizes acts of solidarity (Gionco and Kanics, 2022). Humanitarian workers in Italy, Greece, and Hungary have been accused of encouraging irregular migration and facilitating illegal entry (Cusumano and Villa, 2021), while migrant solidarity has also faced significant legal challenges in France and the United States (Rodrik, 2021). Featherstone (2012) describes solidarity as a ‘transformative relationship’ that creates new political connections. Acts of migrant solidarity take various forms, including rescuing migrants and asylum seekers in distress at sea, as well as providing food, shelter, legal advice, and pathways to safety (Rodrik, 2021). Solidarity fosters resistance to detention, deportation, racial hierarchies, and border violence (Dadusc and Mudu, 2022). This was particularly evident in Greece, where a strong solidarity movement emerged during the 2015 refugee ‘crisis’ (Evangelinidis, 2016). The criminalization of solidarity in Greece targets three main groups: non-governmental (NGOs) and other organizations that support migrants and either implicitly or explicitly oppose border violence; individuals assisting irregular migrants and refugees in their efforts to cross the Greek border; and investigative journalists who expose the violent and covert tactics used by the Greek state.

The dominant narrative attributes the criminalization of individuals and organizations aiding border crossings to the ambiguous wording of the European Council Directive (2002/90/EC), originally intended to combat human smuggling (Schack and Witcher, 2020). However, this does not account for the wide range of other methods used to target assistance for refugees and (irregular) migrants. In other words, the Directive's ambiguous wording appears to function more as a tool than as the root cause of criminalization. Why, then, do state authorities criminalize acts of solidarity? This article seeks to answer this question through the lens of the theory of ‘enemy under-criminalization’ (Kourakis, 2025). Drawing conceptually from crimmigration (Stumpf, 2006) and enemy penology (Krasmann, 2007), ‘enemy under-criminalization’ refers to a punitive system that operates beyond the rule of law, bypassing the protective framework of criminal law and due process. The central thesis of the article is that migrant solidarity faces hostility because of its association with the ‘enemy’ (irregular migrants and refugees) and its potential to expose illicit tactics used by the Greek state to control immigration. The theory of enemy under-criminalization captures how excessively punitive legal frameworks are supplemented by insufficient criminal law protections, along with measures taken in legal gray zones, to produce punitive state practices that undermine the rule of law.

The article begins with an overview of the key principles of enemy under-criminalization, followed by an examination of the construction of the foreign ‘enemy’ in Greece in recent years. It then outlines the legal framework for human smuggling, which the Greek state has used to prosecute acts of assistance to migrants. The article argues that Greek criminal law, from the outset, normatively prohibits assistance to irregular immigrants and refugees, thereby reinforcing the state's hostile stance toward these groups. It draws on information from 111 criminal cases involving the arrest, prosecution, or conviction of individuals, mostly labeled as ‘migrant smugglers,’ covering the period from 2015 to 2023. Not all cases include all three stages. Cases were identified through keyword-based searches in news archives, investigative reports, and academic literature. The article examines available information on the criminal processes involved, including charges filed, trial outcomes, and procedural irregularities, where such data was accessible. Consistent with the theory of enemy under-criminalization, the article demonstrates that the state treats defendants in these cases in a severely exclusionary manner, denying them the proper safeguards of criminal law.

The article also examines the extent to which NGOs and individuals involved in search and rescue (SAR) missions have been harassed by Greek authorities through extra-legal tactics, and discusses recent legal barriers to solidarity efforts. It also highlights the hostile treatment of human rights defenders and critical journalists covering migration issues. The article concludes by arguing that these measures frame irregular immigrants and those supporting them as enemies who threaten the state's interests. These state actions operate outside the rule of law, using punitive tactics that bypass traditional legal safeguards, undermine humanitarian efforts, and raise serious concerns not only about the erosion of fundamental rights, but also about the ways in which law itself is mobilized to enforce exclusion and suppress dissent.

Enemy under-criminalization

The concept of enemy under-criminalization incorporates the exclusionary, adversarial stance of enemy penology, which is steeped in narratives of warfare and the protection of public order. Enemy penology is rooted in a dichotomy between citizens and enemies, with distinct criminal laws applied to each group (Krasmann, 2007). Citizen criminal law governs those who broadly adhere to the legal order, whereas enemy penology targets individuals constructed as permanent threats to its legitimacy, defined by three features (Díez, 2008): pre-emptive punishment before harm occurs; disproportionate penalties; and the systematic suppression of due process rights, such as the right to a fair trial, under the guise of addressing an ‘emergency’.

In the context of migration, enemy under-criminalization reconfigures these dynamics by positioning irregular migrants and refugees as ‘potential enemies’, whose societal presence is framed as inherently threatening. It functions through a dual mechanism: the selective expansion of criminalization to target acts of migrant solidarity and border defiance, and the withdrawal of procedural protections to those marked as enemies. These two dimensions do not operate in isolation but in tandem, reinforcing each other.

Enemy under-criminalization highlights that although irregular immigrants are subjected to criminal law measures, these measures bypass the procedural safeguards typically embedded in the criminal justice process, leading to the denial of protections afforded by criminal justice. This bypassing is particularly alarming given the severe consequences of criminalization, such as stigma and harsh penalties, which the criminal justice system ostensibly seeks to balance with due process protections (Spalding, 2022). Within this framework, the state wields the power to stigmatize and inflict violence without engaging the procedural complexities of the criminal justice process, enabling a form of enemy under-criminalization.

This legal asymmetry is also reflected in extra-legal practices that occur in a liminal space between legality and de facto impunity. Crucially, such tactics are not wholly outside the law but are enabled by legal ambiguity, bureaucratic obstruction, and discretionary enforcement. Enemy under-criminalization, therefore, marks the strategic manipulation of law as a flexible tool to exclude, stigmatize, and punish.

In this regime of racialized exclusion, irregular immigrants and refugees are deprived of basic procedural guarantees while also being marked by their racial and ethnic identities as inherently dangerous or undesirable. This racial coding intensifies their marginalization, because it constructs them as permanent outsiders whose perceived deviance justifies exceptional state measures. Enemy under-criminalization transcends traditional legal boundaries by deploying an amalgam of legal and extra-legal mechanisms to neutralize the ‘enemy’. Enemy under-criminalization extends Stumpf's crimmigration's emphasis on the fusion of criminal and immigration law, illustrating how legal and social hierarchies produce a distinct legal space that diverges from normative legal principles. The racial status of (irregular) immigrants serves as a critical determinant in their categorization as enemies, positioning them outside the conventional criminal justice framework rather than merely subjecting them to criminalization (Spalding, 2022).

This process is particularly evident in Greece. Since the 1990s, political discourse and media representations in Greece have framed migrants as threats to national security and the economy. Illegality became associated with specific ethnic identities, initially targeting Albanian migrants, who were racialized as inherently criminal, fostering a condition of ‘Albanophobia’ (Galariotis et al., 2017). In the 2000s, the securitization of migration intensified as politicians across the spectrum increasingly linked immigrants to criminality (Kalantzi, 2017). Beginning with the financial depression in 2010, migration was blamed for negatively affecting the economy, public services, public health, and, most critically, social cohesion and the social fabric (Kalfeli et al., 2022; Triandafyllidou and Kouki, 2014). During this period, racialized discourse focused on migrants and asylum seekers from predominantly Muslim countries in Asia and Africa, including Afghanistan and Nigeria. Political rhetoric depicted Muslim migrants as unwilling to integrate and conspiratorially threatening public order and national identity (Karydis, 2016).

The 2020 Greek–Turkish border crisis in Evros contributed to this hostile construction by reviving the narrative of conflict between these two long-standing adversaries. Consequently, refugees and migrants were portrayed in media discourse as a threat, described as ‘enemies at the gate’ of both Greece and Europe (Kalfeli et al., 2022). The dominant political and media discourse has influenced public perceptions of migration. Research indicates that Greeks, compared with other EU countries, hold some of the most negative views regarding the impact of immigrants on society (Bailey-Morley and Lowe, 2023).

The European, international and Greek framework against human smuggling

'Solidarity crimes’ are addressed under Directive 2002/90/EC, which criminalizes the ‘facilitation of the illegal entry, transit, and residence’ of migrants. Article 1(2) of the Directive allows Member States to decide, at their discretion, not to impose sanctions for actions aimed at providing humanitarian assistance to migrants. In 2018, the European Parliament urged Member States to incorporate this optional humanitarian assistance exemption into their national laws (European Parliament, 2018). However, in practice, the ‘humanitarian clause’ is frequently overlooked, and many national frameworks fail to adequately protect individuals and organizations offering assistance to migrants in need (Lawlor, 2023; Tazzioli, 2018). Notably, individuals assisting migrants in crossing national borders face prosecution in Italy and Greece under the same legislation used to punish smugglers who profit from migrants (Lawlor, 2023; Tazzioli, 2018).

The criminalization of individuals and groups who facilitate migrant transit without financial gain raises the question: ‘Who constitutes a smuggler?’ The definition of ‘smuggling’ in European and international documents is ambiguous, because the distinction between assisting migrants for personal profit and for humanitarian reasons is blurred. While the 2000 United Nations Convention against Transnational Organized Crime (‘Palermo Convention’) defines smuggling as involving financial or material gain, the 2002 EU Council Directive does not explicitly require this element. This discrepancy leaves open the possibility of punishing any intentional facilitation, regardless of motive, within the EU legal framework.

The European Commission has clarified its interpretation of the relevant Directive, upon which Greek legislation is based, stating that ‘humanitarian assistance provided by law cannot and should not be criminalized’ (European Commission, 2020). It emphasizes that the criminalization of NGOs or other non-state actors engaged in SAR operations at sea, while adhering to applicable legal frameworks, violates international law and is therefore prohibited under EU law (European Commission, 2020).

Greek Law 5038/2023 stipulates that facilitating the entry or exit of individuals from Greek territory is a criminal offense, with harsher penalties if committed for profit. All acts of migrant smuggling are classified as felonies. Article 25(6) allows for an exception from punishment, although not prosecution, for humanitarian actions. However, as shown below, this provision is rarely applied. The basic penalties for aiding illegal entry and smuggling of migrants include a maximum sentence of 10 years and a minimum financial penalty of €30,000 per individual assisted. Aggravated offenses, such as those involving profit or multiple individuals, carry exceptionally severe sanctions, comparable with those for homicide.

The key rationale for harsher smuggling penalties was the perpetrator's intent to profit from migrants’ needs while endangering their lives. During the parliamentary consultation on Law 2910/2001, the competent minister stated: ‘this is a completely different offence … it concerns the mass transportation of illegal immigrants, it refers to offenders who get rich from these shiploads’ (Chatzinikolaou, 2020: 176). However, as noted above, although the pursuit or receipt of profit resulting from the act of smuggling migrants is considered an aggravating circumstance, the Palermo Convention against the Smuggling of Migrants stipulates that the pursuit of profit is an essential element of the offense (Article 3). This legislative trend has serious consequences in Greece because of the severe penalties prescribed. Similarly, in the Circular No. 4/2009 (unpublished), the Prosecutor of the Supreme Court of Greece highlighted that ‘the reasons for the increased severity of criminal sanctions for migrant smuggling are clear, as the legislator's approach aims to address a phenomenon that causes significant social problems, public order disturbances, and harm to national interests’ (Chatzinikolaou, 2020: 170). In this instance, the narratives of public order and national security are subtly invoked to justify the criminalization of solidarity.

An example of how this law results in the criminalization of solidarity is the Thessaloniki Misdemeanors Board Decision 826/2019 (Chatzinikolaou, 2020). A Spanish driver and his Greek companion were arrested for transporting four undocumented Palestinians. The migrants, previously aided by a smuggling network, were left to walk near Thessaloniki. The defendants, who picked them up, sought no financial benefit and claimed they acted out of humanitarian concern, unaware that their actions were criminal. The board ruled that they should be brought to trial, stating that profit was not a required element of the offense, highlighting how legislation can criminalize ordinary acts of solidarity (Chatzinikolaou, 2020).

Normative exclusion through criminal law

A closer examination of Articles 24 and 25 of Law 5038/2023 reveals an interesting pattern (Melissaris, 2017). A key aspect of these offenses is the legal status of the person being transported. If the person assisted was Greek, an EU citizen, or held valid residence permits, providing assistance or transportation would be regarded as a non-criminal and commendable act of hospitality. However, when the individuals assisted are irregular migrants, even non-harmful interactions with them become criminal offenses. This shifts the focus of the offense from the actions of the perpetrator to the characteristics of the person involved, emphasizing the ontological dimension of irregular border crossers as inherently criminal (De Giorgi, 2006). While smugglers are the primary—but not exclusive—targets, the law does not criminalize their actions for exploiting, endangering, or harming others but for facilitating the entry of individuals lacking legal access to a third country. Consequently, irregular migrants are not viewed as ‘victims’ in the sense of criminal law because they are not regarded as suffering direct harm.

In addition, Article 135 of Law 5038/2023 provides a three-month ‘reflection’ period for third-country nationals²—victims of trafficking or smuggling to recover from the trauma of their experience. However, this period can be revoked if it is proven that the victim has reconnected with the perpetrators or for ‘reasons of public order and security.’ Thus, even the recognition of irregular migrants as victims occurs within a strictly administrative framework, where an ‘administratively organized act of charity’ (Melissaris, 2017: 12) continues to position them normatively outside the realm of criminal law. This state-administered relationship of charity that allows for a ‘reflection period’ for the abovementioned victims is not an equal one, because these individuals do not participate in shaping the rules that justify and define this possibility. Their recognition as subjects—victims who can ‘reflect’ under certain conditions of cooperation with the authorities—depends solely on their temporary residence in the country. Consequently, this recognition further prevents irregular migrants from integrating into the political community and from being acknowledged as full subjects under the law (Melissaris, 2017). At the same time, it restricts the ability of citizens to engage meaningfully with irregular migrants.

Being in the country without a permit is not a criminal offense per se, meaning one cannot be an accomplice solely based on an irregular migrant's presence. This, along with the separation of offenses in Articles 24 and 25 of Law 5038/2023 from those related to illegal entry, reinforces the distinction between citizens and irregular migrants. This distinction further excludes irregular migrants from criminal law, disrupting social and political relations (Melissaris, 2017). The offenses under Articles 24 and 25 apply not only to smugglers, but also to volunteers and others who assist migrants out of solidarity—a reality, not just a theoretical concern, as it will be demonstrated in the next section.

Criminal law constructs those irregularly crossing borders as a category of individuals who ‘transmit criminality’ to citizens due to the inherent illegality of their presence. This constructed narrative underpins the broader system of enemy under-criminalization by framing the irregular immigrant not just as an individual violating immigration norms, but as a carrier of broader societal threats. Anyone wishing to act lawfully cannot act in solidarity unless, under Article 25(6) of Law 5038/2023, they cooperate with the authorities by handing over the irregular migrant for registration, asylum application (if applicable), and related processes. This requirement effectively transforms acts of solidarity—such as rescuing migrants at sea—into complicity with state enforcement mechanisms, unless explicitly performed within the bounds of state-sanctioned roles.

In this way, solidarity itself becomes subject to criminalization, because the act of assisting irregular migrants, regardless of intent, outside the aforementioned strictly administrative context, aligns the supporter with the constructed ‘enemy’ and is thus framed as a criminally punishable act. The implicit message is that non-cooperation with the state aligns one with the ‘enemy’. Here, the ‘transmission of criminality’ is not about specific illegal acts committed by irregular migrants, but about their very existence challenging the citizen-versus-enemy-distinction. The state's response exemplifies the fusion of legal (criminal law) and extra-legal (police harassment) measures to constrain solidarity, as is now be shown.

From criminalization to police harassment

The criminalization of immigration-related offenses has become a central pillar of modern immigration control, with states increasingly expanding and enforcing criminal law to regulate human mobility (Aliverti, 2012). In Greece, punitive measures against migrants and their supporters reflect this global trend. Convictions for smuggling surged by 100% between 2016 (951 convictions) and 2019 (1905 convictions), making it the largest group in prison after those convicted of drug-related offenses (Gionco and Kanics, 2022). One in five individuals in the total prison population has been convicted of human smuggling (Auer, 2024). However, alongside formal criminalization, the Greek state has also deployed a range of ambiguous, discretionary, and extra-legal tactics that target acts of solidarity as if they were criminal, without formally criminalizing it. They form a liminal space between criminal law and extra-legal enforcement—a hallmark of enemy under-criminalization.

Between 2013 and 2020, more than 11,254 people were arrested for human smuggling in Greece. In the summer of 2015, authorities arrested and prosecuted volunteers for assisting refugees on Lesvos, although these charges were ultimately dropped (Melissaris, 2017). Following the 2016 EU–Turkey Joint Statement, Greece witnessed a rise in prosecutions and investigations targeting civil society organizations (Vosyliute and Conte, 2019). During the same period (early 2016), individuals from across Europe established independent solidarity networks, providing services such as accommodation, food, and legal assistance. However, these organizations faced accusations of being ‘fake volunteers’ (Dadusc and Mudu, 2022).

Reports of police harassment targeting independent volunteers, as well as NGOs, increased. For instance, volunteers involved in SAR operations frequently faced harassment from the coastguard and Frontex, who also patrolled the coastline at night. All boat-spotting volunteers interviewed in the Schack and Witcher study (2020) during 2018 and 2019 reported this, indicating a pattern of systematic harassment. One volunteer recounted being monitored at the border at night:

Quite often [the police] come to see what we're doing – they're very aggressive. They try to take our IDs, ask us what we're doing here, who we are, which organization […]. We show them the water bottles and socks we give to people. (Schack and Witcher, 2020: 488)

Many volunteers felt the police were attempting to manipulate them into making statements that could suggest they were collaborating with smugglers or were treated as ‘criminals or suspected criminals’ (Schack and Witcher, 2020: 488).

In such cases, the broad discretion granted to the police by law³ to carry out routine identity checks and to bring individuals to police facilities on the basis of serious suspicion of involvement in the commission of a crime, enables law enforcement authorities to operate in a liminal legal zone, devoid of clear boundaries of accountability. Moreover, police forces are often able to evade accountability, because of serious deficiencies in the conduct of internal disciplinary investigations. It is only in recent years that an independent and impartial mechanism⁴ was established to review and assess these disciplinary procedures.

In this context, police action functions not through formal prosecution, but as a form of extra-legal repression of solidarity networks through fear and suspicion. These police practices may not be illegal per se, but they exploit legal ambiguity and discretionary power to suppress solidarity under the guise of routine policing. This indirect enforcement blurs the boundaries between legal and extra-legal processes, allowing the state to suppress solidarity by manipulating legal discretion. The state's framing of solidarity actors as adversaries—aligned with the ‘enemy’ figure of irregular immigrants or refugees—renders them vulnerable to over-policing and legally ambiguous punitive measures. These practices serve to reassert state sovereignty while deepening divisions within society, ensuring that acts of solidarity remain precarious and contested.

SAR under suspicion: Criminal law and the delegitimization of solidarity

SAR operations have faced systematic repression in Greece since the onset of the 2015 refugee ‘crisis’, not only through formal criminalization, but also via false accusations (Schack and Witcher, 2020). These actions have framed SAR activities as adversarial to state interests, significantly restricting their capacity to assist irregular migrants and refugees in distress. Such state hostility aligns with the theory of enemy under-criminalization, because it reflects coercive tactics aimed at protecting society from the perceived, continuous threat posed by the dangerous Other to public order and national identity.

Volunteer rescuers have repeatedly faced criminal charges, only to be acquitted later—treated not as humanitarian actors, but as potential criminals. In January 2016, five volunteers—two Danish citizens from Team Humanity and three Spanish firefighters from ProemAid—were arrested by the Greek Coastguard shortly after rescuing 51 migrants off the coast of Lesvos (Carrera et al., 2018). Despite operating under the coastguard's coordination, they were charged with human smuggling. The accusations included claims of possessing knives and an undeclared two-way radio, yet all five were acquitted in May 2018 (Carrera et al., 2018). A similar pattern emerged in 2020 and 2021, when Greek authorities launched criminal investigations against dozens of foreign nationals and NGO workers, accusing them of facilitating irregular entry and obstructing state investigations—yet often failing to proceed to trial (Human Rights Watch, 2021). These cases illustrate how humanitarian efforts have been targeted through the hostile, ad hoc application of criminal law, aiming to neutralize their solidarity potential.

A key element in this process has involved reframing solidarity activities as threats to public order. This was evident in the high-profile case of Sarah Mardini and Sean Binder, volunteers with the Greek NGO ERCI, who were arrested in August 2018 alongside 22 others. They faced charges including migrant smuggling, fraud, and membership in a criminal organization. ERCI's activities were also criminalized as espionage because of the use of publicly accessible VHF radio frequencies to locate refugee boats (Fasia, 2021). In January 2024, the Mytilene Court of Appeal finally dismissed the espionage charges, but the rest of the case remains open. This case—described as ‘the biggest criminalization of solidarity in Europe’ (Moreno Lax et al., 2021: 111)—epitomizes how criminal law has been used to delegitimize rescue work and deter similar initiatives.

Criminalization practices have had particularly severe consequences for migrants themselves, especially those who act in solidarity with others. Criminal convictions—even at first instance—or mere ‘reasonable suspicion’ can lead to exclusion from asylum and future residence applications in the EU (European Asylum Support Office, 2016). As De Genova and Roy (2020) argue, such legal frameworks produce a circular logic that casts the ‘illegal immigrant’ as a permanent enemy of the state, structurally disqualifying them from protection.

This climate of suspicion has gradually expanded beyond rescuers and migrants to encompass a broader range of actors involved in supporting irregular immigrants and refugees. On 17 August 2022, the NGO Josoor, which monitored human rights violations at the EU border, announced its dissolution, citing mounting pressure from both Greek and Turkish authorities. Although the organization had never violated Greek law, it was subjected to three criminal investigations (Josoor, 2022).

These developments suggest that the machinery of criminal justice is abusively used to undermine the very infrastructure of organized migrant solidarity efforts. Overall, the consistent pattern of legal persecution, hostile framing, and false accusations of both refugees and those who assist them demonstrates that the Greek state regards irregular immigrants as enemies and, in turn, treats anyone attempting to support them as part of the same threat.

Exceptional punishment, absent safeguards: The trials for human smuggling and facilitation of illegal entry

In the context of ‘solidarity crimes’, criminal law in Greece is systematically used to impose its harshest consequences, permanently excluding the accused, while also negating its protective potential by denying due process rights. Exceptional provisions are routinely and abusively applied in trials concerning human smuggling and the facilitation of illegal entry, leading to the imprisonment of those who act in solidarity with migrants in distress. According to the Greek Ministry of Citizen Protection (2023, in Borderline Europe, 2023), 52% of all individuals convicted of smuggling are serving sentences ranging from 15 years to life. In a similar vein, Hänsel et al. (2020) found that all 48 smuggling trials observed between 2014 and 2019 resulted in guilty verdicts. These trials were marked by the absence of basic procedural guarantees, such as adequate legal representation or translators for the defendants. The average sentence in smuggling-related convictions was 48.65 years, accompanied by an average monetary penalty of €396,687.50 (Hänsel et al., 2020).

In 2021, a Syrian man was sentenced in Lesvos to 53 years in prison for illegal entry and facilitating illegal entry—charges stemming from piloting a boat that carried his wife, children, and 40 others from Turkey to Greece, after having been tortured there (Gionco and Kanics, 2022). That same year, a 27-year-old Somali asylum seeker received a 146-year sentence, also in Lesvos, for allegedly smuggling migrants. Witnesses testified that he had taken control of the boat only after it capsized, in an effort to save lives (Gionco and Kanics, 2022). This excessively punitive regime disproportionately impacts refugees and irregular migrants who, often unintentionally, assume roles deemed to constitute smuggling—such as steering a boat under emergency conditions.

In parallel, trials for smuggling offenses often violate basic procedural guarantees. Field investigations reveal that defendants—particularly third-country nationals—frequently lack access to interpreters, legal counsel, or even clear information about the charges against them at the point of arrest (Hänsel et al., 2020), undermining their ability to exercise their rights from the outset. Furthermore, as highlighted in the Borderline Europe survey, all respondents (individuals arrested and tried in Greece for smuggling in eight different locations between 2020 and 2023) reported being held in police detention for 3 to 16 days following their arrest for smuggling (Borderline Europe, 2023), in violation of the constitutional time limit of 5 days. Several individuals also reported being unaware of the exact reasons for their detention, having their phones confiscated by police, and being unable to access information about their legal status or legal representation (Borderline Europe, 2023). These practices reflect a system that treats accused smugglers as ‘enemies’ (Krasmann, 2007)—figures perceived as threats to state sovereignty and thus subjected to severe criminal punishment while also excluded from the protections afforded by citizen criminal law.

Courtroom proceedings further entrench this exclusionary dynamic. Defense lawyers are frequently assigned on the day of the trial through legal aid, leaving them no time to prepare a defense (Borderline Europe, 2023). Although Greek law permits the use of non-certified interpreters only in urgent, narrowly defined circumstances, unqualified interpreters are routinely used without proper justification (Borderline Europe, 2023). Trials are often perfunctory: hearings may last as little as six minutes and rely exclusively on written police statements read aloud in court without the officer present. In a sample of 56 cases, the police officers whose testimonies formed the basis of the indictments were absent in 68% of them, while other passengers—whose statements were used against the accused—appeared in only 10% (Borderline Europe, 2023). The resulting lack of meaningful defense rights erodes the foundational principle of criminal law: that guilt must be proven beyond reasonable doubt through fair and impartial procedures (Pinto, 2018).

Not only are basic guarantees of criminal procedure disregarded—both at the pre-trial stage and in the courtroom—but smuggling prosecutions in Greece also reveal a distinct form of criminal treatment: one that exaggerates punitive outcomes while systematically denying due process. In this context, criminal law functions not merely as a means of enforcing legal norms, but as an instrument of exclusion. It punishes refugees and solidarity actors with exceptional severity, stripping them of procedural protections and thus neutralizing the law's protective role, thereby reinforcing a logic of enemy under-criminalization.

Legal impediments and the repression of NGOs assisting migrants

The European Parliament's Committee on Civil Liberties, Justice, and Home Affairs recently reported that, in some Member States, deliberate restrictions—including legal, administrative, and fiscal harassment, criminalization, and stigmatizing rhetoric—have undermined civil society organizations (European Parliament, 2022). It also highlighted the vulnerability of civil society organizations and human rights defenders assisting migrants and asylum seekers, especially those involved in SAR operations.

Within the framework of enemy penology, mistrust forms the cornerstone of the relationship between the state and its ‘enemies’. NGOs engaged in SAR activities, particularly those exposing state misconduct, can be categorized as such ‘enemies’. Although these organizations have cooperated with Greek authorities—sharing vessel locations and following coastguard instructions (Schack and Witcher, 2020)—their role in revealing potentially unlawful border practices, such as pushbacks, positions them as adversaries in the eyes of the state. Pushbacks are defined as operations conducted under conditions of maximum secrecy—entirely informal, untraceable, and devoid of bureaucratic or other formal procedures—in which migrants and asylum seekers are expelled from a state's territory without any consideration of their claims for entry or international protection (European Center for Constitutional and Human Rights, 2021). This aligns with Krasmann's (2007) assertion that the ‘enemy’ is deemed inherently dangerous, not for specific actions, but for the perceived threat they pose to social or sovereign order. NGOs are then prosecuted for the broader risks they represent—namely, exposing state violence (Schack and Witcher, 2020) and undermining sovereign control over borders.

The criminalization of NGOs exemplifies a shift from addressing concrete risks to managing abstract ones. Krasmann (2007) argues that this shift transforms the logic of state action, prioritizing preventive measures aimed at countering potential threats. This evolution, integral to the broader framework of enemy under-criminalization, not only criminalizes acts of solidarity, but also fortifies the state's sovereign control over borders by restricting the space for independent monitoring and accountability. By hindering SAR activities and intimidating volunteers, the state eliminates witnesses to illegal actions at sea, reinforcing its dominance over this contested space and denying irregular migrants the legal protections typically afforded under criminal law. This is particularly evident in the case of pushbacks (Karamanidou and Kasparek, 2022). By criminalizing these organizations and undermining acts of solidarity, the state seeks to minimize the exposure of illegal practices at its borders, thereby reinforcing its sovereign control and the racial hierarchies that underpin it.

The Greek state has also developed an administrative apparatus that has made it significantly harder for NGOs to support irregular migrants and refugees through sea assistance activities (Lawlor, 2023). These legal developments have systematically targeted NGOs through burdensome registration systems and punitive laws. As a result, humanitarian actors are subjected to exclusionary controls and criminal liability, revealing a broader strategy of delegitimizing solidarity and reinforcing enemy constructions. More and more countries around the world are adopting restrictive regulations on the operation of NGOs (Dupuy et al., 2021), and Greece is no exception. On 28 January 2016—amid heightened refugee arrivals and extensive humanitarian activity on the islands receiving refugees—the Ministry of Migration and Asylum issued a joint ministerial decision. This decision imposed restrictions on the activities of organizations that were not registered in the newly established National Registry of Greek and Foreign Non-Governmental Organizations. Consequently, many NGOs remained outside the registry because of their inability to complete the burdensome registration process (Lawlor, 2023).

The registration process, combined with the broad discretion given to the authorities to reject applications, further reduces the scope for providing assistance to migrants in need while significantly increasing the Greek state's control over the work of NGOs. Moreover, even registered NGOs may be denied access, unless their work relates to legal aid. Amnesty International has denounced the inconsistency of registration requirements for NGOs focused on refugees compared with NGOs operating in other areas, for which the registration process is much less burdensome (Amnesty International, 2020). This position was reinforced on 2 March 2020, when the President of the Hellenic Republic issued a Legislative Decision in response to Turkey's decision to open its borders at the end of February 2020. The preamble of this decision, which temporarily suspended asylum applications for a month, cited an urgent and unforeseen need to address the security threat posed by migrants and refugees attempting to enter Greece (Chatzinikolaou, 2020). This reasoning aligns with the ‘state of emergency’ framework, in which a particular group is negatively associated with the crisis and distinguished from the ‘deserving’ and ‘normalized’ citizenry (Koutrolikou, 2016). This approach fosters a sense of division and contributes to the construction of an ‘enemy’, ultimately splitting the population into ‘us’ and ‘them’.

This exclusionary logic was further entrenched by Law 4825/2021. Article 40 of this law mandates that NGOs must be included in local emergency plans for SAR operations, provided they have not previously engaged in unauthorized sea assistance activities and have obtained written approval from coastguard authorities. Noncompliance carries criminal penalties—up to three years’ imprisonment and heavy fines, with fines potentially doubling for repeat violations. Through these legal and bureaucratic mechanisms, the Greek state has actively impeded the autonomous solidarity efforts of volunteers and unregistered NGOs, reinforcing the portrayal of both migrants and their supporters as ‘enemies’ of public order. The systematic suppression of humanitarian efforts illustrates how the state uses legal tools to sustain divisive mentalities and perpetuate construction of the ‘enemy’.

The inimical environment against human rights defenders and journalists

In Greece, the legal and extra-legal targeting of human rights defenders and journalists reflects a broader strategy of enemy construction. Individuals who expose or critique the state's border practices are treated as allies of the ‘enemy’—irregular migrants and refugees. This as a deliberate tactic to exclude and suppress those who challenge the state's narrative, often outside the bounds of proper legal procedure. Following the concept of enemy under-criminalization, the law is weaponized—either applied in an excessively punitive manner or disregarded altogether—to marginalize those deemed a threat to public order and national identity. This results in a dual strategy: the criminalization of solidarity efforts and a form of under-criminalization, whereby legal protections and due process are systematically denied.

Human rights defenders in Greece face an increasingly hostile environment (Lawlor, 2023), particularly in relation to their efforts to expose the state's immigration control practices. These actors are subject to a broader strategy of public discrediting and surveillance. Police reportedly exploit the lengthy interval between the launch of investigations, the filing of charges, and court decisions to exert pressure—often through strategic media leaks (Lawlor, 2023). Human rights defenders risk being charged with serious offenses such as espionage, smuggling, and human trafficking (Gionco and Kanics, 2022). According to a Journal of Editors investigation that began in July 2020, the National Intelligence Service ordered the surveillance of a lawyer representing an immigrant in court (Efimerida Syntakton, 2021). In addition, a joint statement by United Nations human rights representatives to the Greek government in 2022 expressed concern over incidents targeting a sea rescuer and outspoken critic of the Greek state's immigration control tactics (Lawlor et al., 2022).

A parallel pattern of suppression affects critical journalism. Greece ranks 108 of 180 countries in the 2023 World Press Freedom Index—the lowest in the EU after Hungary, Bulgaria, and Malta (Reporters Without Borders, 2023). Reißig (2022) notes that a dominant frame in the Greek media regime is of Turkey as an external enemy. This adversarial framing often casts migrants as threats and fuels suspicion toward those who assist or defend them, especially when their work is seen as critical of national policy. As a result, humanitarians and journalists who critique Greek border practices are sometimes portrayed as aligned with Turkish interests. For instance, after a confrontation with the Greek prime minister on the issue of pushbacks in November 2021, Dutch journalist Ingeborg Beugel was labeled as ‘pro-Turkish’ by prominent Greek journalists, attacked with a stone, and ultimately left the country after almost 40 years of residence (Fallon, 2021). This decision was advised by the Dutch Ministry of Foreign Affairs, the Dutch Embassy in Greece, and the Dutch Association of Journalists (International Press Institute, 2021).

Other incidents include the surveillance of Stavros Malichoudis in 2022, which occurred as part of the wiretapping and spyware scandal while he was reporting on migrant detention (Investigate Europe, 2021) and the arrest of Norwegian photographer Knut Bry on suspicion of espionage for allegedly taking pictures of the Hellenic Coastguard and navy vessels (Lawlor, 2023). These tactics collectively work to shrink civic space and suppress dissent. As Reporters Without Borders warned in 2021, ‘press freedom in Greece has taken a dangerous turn … journalists working on immigration, which is a matter of national and European public interest, are increasingly under threat’ (Al Jazeera, 2021).

Together, these examples reveal how the Greek state associates human rights defense and critical reporting with the threat posed by irregular migration itself. In this context, the criminalization of NGOs, human rights defenders, and journalists who expose human rights violations or assist migrants reflects the weaponization of law. The Greek state does not merely criminalize the migrants themselves but extends this hostile treatment to those who provide solidarity. The media reinforces this logic by framing humanitarian assistance as collusion with the enemy. What emerges is a system in which solidarity becomes suspicious by association. Moreover, the use of prolonged investigations, strategic leaks, public defamation, and charges unlikely to result in conviction suggests that the aim is not legal resolution but rather intimidation. The combination of legal and extra-legal tactics serves to delegitimize and discourage solidarity. By blurring the line between humanitarian action and criminal threat, the Greek state extends its logic of enemy under-criminalization beyond irregular migrants and refugees to include anyone who supports them.

Discussion: The inimical treatment of migrant solidarity

The criminalization of solidarity functions as a regulatory force designed to suppress autonomous efforts that challenge and undermine the role of borders. Targeting those who resist or expose violent border practices seeks to silence voices that reveal the harm caused by borders and hold authorities accountable. This criminalization aims to enable state intervention in the formation of social relations, weakening acts of solidarity toward migrants that fall outside state-sanctioned political boundaries. It primarily targets autonomous solidarity initiatives that refuse to align with the Greek state's methods of migration control (Dadusc and Mudu, 2022) and the violence inherent in those practices (Fili, 2023).

Criminal law further contributes to the exclusion of migrants and refugees, functioning in a dual manner: both to deter smuggling crimes and to prevent solidarity assistance to border crossers in danger. This deterrence also operates within migration policy, discouraging further migration movements. This deterrence is inherently racialized, because it constructs irregular migrants and refugees—predominantly from marginalized racial and ethnic groups—as inherently threatening. This is further exacerbated by current state policies, such as pushbacks (Karamanidou and Kasparek, 2022), which erode nearly all plausible legal means of accessing the international protection regime (Rodrik, 2021). The preventive shift is achieved through systematic deviations from standard procedural protections, because irregular migrants are often denied the full rights of a proper criminalization process. In this way, they are effectively ‘under-criminalized’, being further marginalized as racialized ‘enemies’.

Solidarity missions not only rescue people in danger at sea, but also challenge state border policies. Relying on cooperation, they function as a substitute for sovereign power, thereby threatening state authority and, consequently, facing prosecution. The crackdown on these missions extends beyond individuals to target a broader group—including NGOs, lawyers, and journalists—fostering societal hostility while using both legal and extra-legal measures against the perceived ‘enemy’: irregular immigrants and those associated with them. What is at issue is not a binary between law and lawlessness, but rather the strategic manipulation of legal frameworks alongside informal practices to suppress dissent and reinforce border regimes. This synergy enables the state to exercise control not only through the exclusionary framework of Greek criminal law, but also by capitalizing on discretionary police measures and administrative obstacles that delegitimize and obstruct non-institutional solidarity efforts.

However, the framework of enemy under-criminalization does not function in isolation; the motivations of the Greek state are shaped by a complex interplay of domestic and supranational factors. Domestically, the state must navigate the demands of an electorate often swayed by anti-immigration rhetoric (Bailey-Morley and Lowe, 2023) and the ideological positions of various political parties. In addition, since the 2010s, the Greek economy has faced myriad challenges (Tsoulfidis et al., 2016), further complicating the state's capacity to manage migration effectively. Because of its geographical location, Greece serves as a gateway to Europe for individuals arriving from the Middle East and Africa, functioning as both a transit and destination country for many third-country nationals (Bosworth and Fili, 2016). Indeed, by late 2015, Greece saw a significant influx of migrants and refugees, particularly to the northeastern Aegean islands (Ilias et al., 2019). A European Commission evaluation report from November 2015 highlighted serious deficiencies in Greece's implementation of external border controls (Ilias et al., 2019). The country's repeated failures to secure its borders exacerbated political tensions, with EU Member States expressing concerns about the impact of irregular migration on their already strained job markets (Bosworth and Fili, 2016). Greece must also contend with the often disproportionately burdensome expectations of EU migration policies, including the Dublin Regulation, which effectively positions Greece as a gatekeeper for Europe's external borders (Anagnostou, 2024).

This dual pressure—maintaining fortified external borders while grappling with financial hardship and escalating xenophobia—underscores the complexity of its position. These overlapping factors not only shape, but also constrain state actions, highlighting the need for a nuanced understanding of the motivations behind the criminalization of solidarity.

Conclusion

This article has examined how migrant solidarity is criminalized in Greece and developed the concept of enemy under-criminalization to make sense of this phenomenon. As demonstrated, solidarity toward migrants is treated as a crime in various ways. First, the legal framework, designed under the narratives of exception and public order protection, contributes to the exclusion of solidarity efforts by non-state actors who pursue independent initiatives. This criminal law framework serves as a foundation for systematically prosecuting such efforts, as illustrated through several examples, some of which have received international attention.

Second, trials of individuals aiding migrants in distress at sea, enabled by this exclusionary legal framework, result in extraordinarily long sentences, while denying defendants basic guarantees of a fair criminal trial. The right to a fair trial is fundamental to criminal justice and a cornerstone of the rule of law. However, as the Greek case illustrates, migrants accused of smuggling are frequently denied this right, even as the ‘war on smugglers’ is promoted as essential for protecting migrants from exploitation. By criminalizing solidarity, the state claims to ensure public safety and reassert its sovereignty while masking its antagonistic stance toward those offering humanitarian aid.

Third, I showed that SAR operations conducted by various organizations have also been targeted, because they can expose the violent immigration control measures of the Greek state. As a result, these organizations are labeled as ‘allies of the enemy’. Fourth, I argued that, beyond criminal law, several legal bureaucracies impede solidarity efforts. These bureaucracies, in conjunction with criminal law, act as deterrents to solidarity. Finally, human rights defenders and journalists working to uncover legally gray areas and state abuses in immigration control face persecution, often beyond the boundaries of the formal criminal process.

The synthesis of theory and empirical findings reveals two key elements that are common to all these measures. They are all directed against the perceived threat of irregular immigration, which is conceptualized as opposing the state's foundational interests, turning irregular immigrants, potential refugees, and their supporters into ‘enemies’. So too, these practices exist in a quasi-legal realm, not only overly punitive but also stripped of the traditional guarantees of the criminal process (e.g., due process, proportionality, right to a fair trial), when such a process is even applied.

In sum, the criminalization of migrant solidarity not only undermines humanitarian efforts, but also exposes the state's broader strategy of controlling migration through punitive measures. This trend raises significant concerns about the erosion of fundamental rights and the role of the law in perpetuating exclusion. This analysis opens several avenues for future research. Comparative studies are essential to assess whether the concept of enemy under-criminalization applies across diverse legal and national contexts where migrant solidarity is criminalized, as well as in other mechanisms of border control, such as immigration detention. Such work would contribute meaningfully to the advancement of border criminology scholarship. Simultaneously, the criminal legal framework should be amended to uphold the foundational principle it purports to rest on: the rule of law. Legal protections for humanitarian assistance must be clarified, and the administrative burdens on such actors should be appropriately reduced. These reforms must be accompanied by improved policing practices to curtail the legal harassment of individuals and organizations supporting irregular migrants and refugees. Finally, civil society actors and transnational advocacy networks must continue to document the problematic dimensions of contemporary immigration enforcement and provide platforms through which affected individuals can share their experiences of state violence and exclusion.

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Filippos Kourakis

Notes

Author Biographies

Filippos Kourakis is a PhD Student in Criminology. His area of research is border criminology and punishment.

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