Hazardous rescues

In late June 2020, Faisal, Abdul, and Afrizal, three Indonesian fishermen, rescued 99 people from a sinking cargo boat near the Straits of Malacca and brought them to shore in Lancok, a village located at the northern tip of the Indonesian island of Sumatra. The disembarkation of the rescued passengers was not, however, as straightforward as it should have been under international sea rescue principles. Indonesian authorities impeded the landing for two days, their preference being to repair the broken boat, push it back to sea, and abandon the passengers to their fate. The Indonesian authorities’ attempt to emulate the frequent pushback of unwanted maritime arrivals conducted by their Malaysian counterparts, which have proceeded up until now with impunity, however failed (Beech 2020). Thanks to the three Indonesian fishermen and other civilians on shore, who kept pleading for an immediate disembarkation of the visibly exhausted and malnourished passengers, most of them women and children, the rescued passengers were eventually allowed to come ashore (Amnesty International 2020).

What might appear at first like a happy end soon turned into a legal nightmare for the rescuers. While Faisal, Abdul, and Afrizal were lauded as heroes of humanity by the wider public (Missbach 2017; Walden 2020), from the very beginning, the three fishermen were resented by the local police who did not believe the fishermen had just come across the shipwrecked passengers by coincidence. In October 2020, the police had arrested the three men and opened an investigation on suspicion of people smuggling offenses. Soon after, the police charged them under Article 120 of the Indonesian Immigration Law (No. 6/2011) for having facilitated the entry into Indonesia of 99 non-citizens who lacked the required permissions to do so.

Treating rescuers as perpetrators of transnational crime and charging them with people smuggling (and occasionally with human trafficking or terrorism) offenses is a recent phenomenon in the Global North, especially in the states along the shores of the Mediterranean Sea, which signals a more fundamental shift in contemporary, global mobility rules. Law enforcement authorities have targeted in particular three specific groups of rescuers. First of all, dozens of Italian and Tunisian fishermen who had spontaneously rescued migrants they encountered in distress at sea were incriminated for involvement in illegal immigration. They were accused of bringing rescued migrants to shore and thereby technically enabling them to enter states without prior sanction. Under international law, which mandates the rescue of people in distress at sea, such accusations had no basis, as rescued passengers must be taken to the nearest port for disembarkation. Consequently, many of the Italian and Tunisian fishermen were eventually acquitted, but their trials often lasted for years and entailed substantial legal expenses (Fekete 2009; Orsini 2016). Second, after the withdrawal of state-funded search and rescue missions to minimize deaths at sea, such as Operation Mare Nostrum (October 2013 to October 2014), and their replacement with more militarized border protection at sea, privately funded volunteer organizations started to provide these life-saving services, thereby becoming a new target for anti–people smuggling law enforcement. Between 2017 and 2020, law enforcement authorities confiscated more than 17 ships from volunteer search and rescue organizations and initiated legal proceedings against crew members (Cusumano 2019; Lloyd-Damnjanovic 2020; Mainwaring and DeBono 2021; Neumann 2021; Stierl 2016). At the time of writing, 24 people affiliated with the Emergency Response Center International (ERCI), a non-profit search and rescue group that operated on Lesbos from 2016 to 2018, faced charges that included people smuggling, belonging to a criminal group, and money laundering in Greece (CNN 2021). Third, refugees and migrants who have helped their fellow travelers reach land, thus saving the lives of others as well as their own, have themselves been targeted for involvement in smuggling and related offenses (Kitsantonis 2021; Patanè et al. 2020).

As the prosecutions of these different rescuers show, states have pushed the limits of their own legislation or adopted new laws to criminalize rescuers, thereby sending out a political signal to discourage rescue at sea (Cuttitta 2018; Moreno-Lax et al. 2019; Tazzioli 2018). From a moral standpoint, it seems wrong to incriminate these three types of rescuers, as none of them pursued financial interest when offering support to rescued migrants, which is usually deemed a fundamental criterion in defining what constitutes people smuggling (Missbach 2022).

In regard to financial interests, the case study from Indonesia differs from the European examples, because the three Indonesian fishermen-cum-rescuers did indeed pursue financial interests, as the police investigation revealed. Faisal, Abdul and Afrizal, were indeed hired and paid to pick up some of the 99 people at sea. Yet, when they arrived at the agreed coordinates at sea, they realized that all the passengers were in distress as their boat was about to sink. Given the remote location of this boat, it is safe to assume that, if the three fishermen had not taken all 99 men, women, and children on board their vessel, the passengers would have perished similarly to an additional 17 of their fellow travelers who were reported to have been on board initially but who had already perished due to the hardship of the journey (International Federation 2021). Yet as will be argued in this article, their prior financial interests shall not refract from the moral duty to get involved in rescue at sea. In other words: Are smugglers obliged to save lives of people in distress? And if the answer to this question is yes, should they be held criminally liable for rescuing and preventing passengers from drowning?

By highlighting that even commissioned smugglers can act as rescuers and preserve life, this article brings to the fore an ongoing rivalry of different sets of mobility rules: the implementation of punitive state laws that seek to deter irregularized movements of maritime refugees by creating dangerous precedents and thus accepting human deaths due to pushback and non-rescue policies on the one hand and, on the other, the adherence to moral norms of fishermen who honor the customary yet unwritten law of the sea and its inherent rescue duties as well as international law, under which engaging in rescue at sea is mandatory for all passing vessels and without regard for the immigration status of passengers in distress.¹ Without civilian rescue efforts, the sea, often depicted as an even deadlier space than terrestrial migration corridors, can easily turn into a maritime graveyard (or a “seametery” [Abderrezak 2020]).

In light of the growing literature on the criminalization of rescuers in the Global North, it might be tempting to dismiss the specifics of the Indonesian case study by simply subsuming it under the general political-legal trend and aligning it with state-driven advances against civilian rescuers and migrant solidarity movements. Yet, in my mind, the case from Indonesia warrants analysis in its own right, as the existence of both for-profit and humanitarian elements on the side of the rescuers merits independent scrutiny. Scrutinizing the conflicting interpretations of whether the actions of these three men constitute rescue or, indeed, a transnational crime (facilitation of illegal entry) offers a chance to question the rather static legal categories of rescue and crime and their overall usefulness in determining the liability of those involved.

This article is grounded in my ongoing ethnographic research on the criminalization of people smuggling in Indonesia. Yet, when the specific case analyzed here took place, I was not able to visit the defendants in Indonesia or observe their trial in court due to the COVID-19 pandemic. Because of the global travel restrictions, I had to rely more than usual on phone calls with journalists and email inquiries with local NGOs and advocates. Last but not least, I would like to give credit to the report co-authored by the Human Rights Commission of Malaysia and Fortify Rights, who have conducted 270 interviews with eyewitnesses, survivors, facilitators, government officials, and others concerning previous Rohingya maritime movements, as this report offered a most welcome counter-narrative to the Indonesian court documents that I relied upon when analyzing the associated harms of rule-breaking for facilitators and passengers of unsanctioned maritime journeys.

Rohingya and their search for safety

Once the rescued passengers were brought on land, it was revealed to the public that they were Rohingya refugees from Myanmar originally, who had embarked on yet another journey from their refugee camps in Bangladesh to Malaysia but became stranded at sea for 120 days. Rohingya are an ethnic-religious minority from Myanmar, who are stateless, having been arbitrarily deprived of the right to nationality and citizenship documentation in Myanmar (Kyaw 2017). Over the last four decades they have suffered discrimination and, on repeated occasions, forced mass displacement. Because of the gross human rights violations against them by the Myanmar army and radicalized Buddhist civil society, Rohingya are often referred to as the most persecuted minority in the world (UNHCR 2020a; Wade 2019). In late 2017, when the Myanmar military waged a scorched-earth campaign against Rohingya, labeled by Zeid Ra'ad Al Hussein, UN High Commissioner for Human Rights, “a textbook example of ethnic cleansing” (UN News 2017), around 700,000 people fled their home country for Bangladesh. By mid-2021, more than 1.2 million Rohingya were living in squalid refugee camps around the city of Cox's Bazar near the Bangladesh–Myanmar border. Rohingya are not allowed to build permanent structures in the camps as the Bangladesh government under no circumstances wants their presence to last. Several attempts to repatriate the Rohingya to Myanmar have failed, as the Myanmar government is unwilling to offer citizenship rights to returnees (Hassan 2021). The recent military coup in Myanmar in February 2021 has made such concessions even less likely.

Unable to return to Myanmar and unwelcome for the long-term in Bangladesh, which is, after all, one of the poorest countries in Asia, tens of thousands of Rohingya embark on secondary movements to Southeast Asia. Even before the 2017 mass exodus, Rohingya had sought temporary or permanent residence outside of Myanmar, either as labor migrants or refugees. Because they are stateless people, regular travel is not an option for them. With no legal options, the Rohingya are driven into the arms of those who can help them circumvent ever-intensifying border and migration controls. Over the last decade, transnationally operating networks and infrastructures have emerged in Myanmar, Bangladesh, Thailand, Malaysia, and Indonesia to facilitate the migration of Rohingya. These networks involve a myriad of actors, including state officials, opportunistic middlemen, and hired hands who operate either on a regular or on a one-off basis (Hoffstaedter and Missbach 2021; Human Rights Commission of Malaysia 2019). Without the support of a variety of facilitators, the long journeys from either Myanmar or Bangladesh would simply not be possible.

Hosting a Rohingya diaspora of over 150,000 people in 2020 (Sukhani 2020), Malaysia is the most popular destination (Lego 2012; Nungsari et al. 2020). In order to reach Malaysia, either directly from Myanmar or from Bangladesh, Rohingya take facilitated journeys by sea or by land (via Thailand) or a combination of both. Various factors, such as the monsoon cycle and the intensity of maritime or terrestrial border protection at any given time, influence the choice of routes. Malaysia's peninsular coastline is over 2,000 km long and thus offers ample possibilities to enter Malaysian territory clandestinely, but more often than not their entry was tolerated, if not even facilitated, by local authorities (Franck 2019; Stanslas 2010). After all, Malaysia depends on undocumented migrants and exploitable refugees as a cheap labor force (Rajaram and Grundy-Warr 2007).

Many Rohingya embark on those journeys believing they will be transported to Malaysia directly; instead, many face staggered journeys during which they suffer extreme deprivation and exploitation. Journeys can take weeks, sometimes months, particularly when intensified border patrols or police investigations cause un-expected interruptions. Moreover, facilitators often deliberately put journeys on hold so that they and their associates can collect additional payments from family members or friends of the passengers in Malaysia, who are usually the sponsors of the passages in the first place (Human Rights Commission of Malaysia 2019). The specifics of the irregular passages of the Rohingya, which in many cases include false promises, deception, negligence, exploitation, and various forms of abuse, make it very difficult to determine whether they are instances of people smuggling, defined as a one-off voluntary encounter between a client and a transporter for the sake of unsanctioned border crossings, or human trafficking, characterized as an ongoing process of exploitation initiated by the need to cross borders. Both smuggling and trafficking networks thrive on the vulnerability of the Rohingya as stateless people denied proper protection by any state in South and Southeast Asia. In any case, deliberately prolonged journeys carry higher risks for the travelers involved, as they are exposed to all weathers and disruptions in food and water supply onboard.

It has been estimated that, between 2012 and 2015, about 112,500 Rohingya traveled to Malaysia by boat, of which at least 1,800 are believed to have died from abuse and deprivation during their journeys (UNHCR 2016). In May 2015, however, the situation of the clandestine passages of Rohingya got out of control, and Malaysian officials could no longer conceal their involvement in the passages.

The 2015 Andaman Sea Crisis

What became known as the Andaman Sea crisis began with the discovery of a mass grave by Thai authorities in a forested area near Sadao, in Songkhla province close to the Malaysian border in late April 2015. The grave contained more than 30 bodies of suspected victims of people smuggling and human trafficking believed to be Rohingya and Bangladeshi nationals. Less than one month later, the Royal Malaysian Police announced the discovery of a further 139 graves in 28 suspected smuggling/trafficking camps in Wang Kelian, Perlis State, on the Malaysian side of the border with Thailand.² The makeshift camps were capable of holding from a few dozen to several hundred people captive at any given time until they were transported to the next destination. It was assumed that the camps had been erected in response to the 2014 military coup in Thailand, which forced facilitators to move deeper into the jungle and closer to the Malaysian border, rather than to operate in (semi-)urban territories as they had done previously (Human Rights Commission of Malaysia 2019).

While the full extent of deaths along the land routes through Thailand to Malaysia from 2012 to 2015 remains unknown, investigations by police, media, and independent NGOs revealed that facilitators had kept Rohingya hostage in the camps along the Malaysia–Thailand border to extract higher payments before allowing them to continue their onward journeys. In those camps, the Rohingya suffered extreme abuse at the hands of their captors—abuse that was fully condoned by Malaysian and Thai government officials who personally profited from the exploitative arrangements. In fact, Thai authorities had extrajudicially transferred Rohingya from detention centers in Thailand and handed them over to middlemen, or in some cases, had taken them directly to the camps along the Malaysia–Thailand border, where they sold them to middlemen. According to survivors’ testimonies, Rohingya were presented with three options: they could pay additional money for their onward passage on top of what had been agreed earlier in their journeys; accept being sold into highly exploitative labor arrangements; or stay behind in the camp and risk dying there (Human Rights Commission of Malaysia 2019).

After the discovery of the mass graves, the Thai government ordered a crackdown on alleged smugglers and traffickers, which resulted in the closure of the land route through Thailand to Malaysia. Whenever such clampdowns occur, smuggling and trafficking operations get pushed into more remote routes, and the increased risks and costs of the detours are passed on directly to the passengers. Those Rohingya already on their way to Malaysia were then taken hurriedly onto repurposed fishing vessels and sent into the Andaman Sea to wait until the situation calmed down. At sea, they ended up without adequate food, water, and space. In early May 2015, more than 5,000 people were left stranded on at least eight boats, mostly drifting in the waters between Thailand, Indonesia, and Malaysia. A humanitarian crisis unfolded when Thailand, Malaysia, and Indonesia refused to allow these Rohingya to disembark in their respective territories and pushed them back to sea, resulting in a “three-way game of human ping pong” (Phil Robertson, quoted in Human Rights Watch 2015: 1).

After being abandoned in the Andaman Sea for several weeks by their facilitators, Indonesian fishermen rescued three boats with over 1,800 people on board and brought them ashore in Aceh against orders from the Indonesian security forces (Amnesty International 2015). The fishermen executed these rescue missions in the face of a standoff by regional governments that threatened to leave the Rohingya to drown (McNevin and Missbach 2018; Moretti 2018). It was not until 20 May 2015 that Indonesia, Malaysia, and Thailand gave in to mounting international pressure and ordered official search and rescue operations. Indonesia and Malaysia also offered the rescued Rohingya temporary respite, provided that “the resettlement and repatriation process [would] be done in one year by the international community” (Joint statement 2015: 2).

Between 2015 and 2019, maritime movements of Rohingya through the Andaman Sea decreased due to intensified border protection measures in countries along the route. In 2020, even though embarkations, maritime travel, and disembarkations were temporarily impeded as the COVID-19 pandemic spread, the number of Rohingya attempting to travel to Malaysia by boat increased once again (Schafer 2021). According to official estimates, about 2,400 Rohingya attempted the sea crossing in 2020, of whom at least 200 lost their lives (Aljazeera 2021). They all had left from Bangladesh, where they reported suffering in the squalid conditions of the refugee camps in Cox's Bazar, losing income, and being subject to tight restrictions on their movement following the COVID-19 outbreak. The efforts of the Bangladeshi government to relocate thousands of Rohingya from the camps in Cox's Bazar to the island of Bhasan Char, an isolated and flood-prone island in the Bay of Bengal, may also have triggered a new round of departures (Mostafanezhad et al. 2022).

Whereas the standoff during the 2015 Andaman Sea crisis lasted for several weeks, in 2020, the passages lasted much longer, in some cases up to seven months (UNHCR 2020b). There were at least two reasons for these extended periods at sea. As mentioned above, with the outbreak of COVID-19, Malaysia and Thailand intensified their border protection measures and pushed boats back to sea, which prolonged stasis at sea (Human Rights Watch 2020; Septiari 2020). In addition to Malaysia's rejection of the boats and their inability to disembark their passengers, facilitators also changed the rules and started delaying the journeys in order to collect additional payments from their passengers and their families in Malaysia. Usually, at the beginning of the journey, passengers make a small down-payment of part of the total agreed fee. Upon arrival in Malaysia, they or their families in Malaysia pay the remainder. Overall costs range between 5,000 and 10,000 Malaysian Ringgit (MYR) (1,200 and 2,400 USD). In 2020, however, relatives of Rohingya passengers held at sea started to receive phone calls demanding that the entire amount be wired to get their relatives released from the boats stuck at sea (The Star 2020). According to witness statements from a rescued Rohingya, the facilitators exerted considerable force on the passengers to get them to ask for additional payments from their relatives in Malaysia (BBC News Indonesia 2020). Even those who had paid the full amount at the start of the journey were pressured into making additional payments as they waited in their boats (IPAC 2020). The longer the journeys lasted, the more costly they became and the more the risk of exploitation grew for the Rohingya on board. In other words, the rules for maritime mobility had changed, not least as the rejections by Malaysia, Thailand, and Indonesia became an important factor in enabling the abuse and exploitation of the Rohingya to proceed on such a scale.

Given the hardship the Rohingya suffered during the 2015 and 2020 crossings, calls grew louder for the exploitative facilitators involved in bringing the Rohingya to Malaysia to be punished. In the eyes of the international community, the images of Thailand and Malaysia in particular, and less so of Indonesia, had become tarnished for allowing the abuse of the Rohingya for too long. Yet, legal action to combat these crimes in Thailand, Malaysia, and Indonesia differed considerably.

Penalizing facilitators

What motivates states to penalize facilitators of irregular migration? It is generally assumed that besides punishing those responsible for violating border and migration regulations and thus disrespecting state sovereignty, penalizing smugglers and traffickers also communicates a warning to others involved in facilitating irregular migration to relinquish their activities.

By and large, most facilitators involved in arranging the passages of the Rohingya to Malaysia operate with little risk of apprehension or sanction. In the aftermath of the discovery of the mass graves in 2015, however, Thai authorities arrested 103 suspects, including several senior Thai government officials, for alleged involvement in human trafficking. In July 2017, after what had become the largest human trafficking trial in the history of Southeast Asia, a newly established, specialized human trafficking court in Bangkok convicted 62 defendants for crimes related to the trafficking of Rohingya and Bangladeshis to Malaysia via Thailand. The court found convincing evidence of widespread and systematic patterns of Thai authorities transferring Rohingya from immigration detention centers and government-run shelters to members of transnational networks involved in the smuggling and trafficking of Rohingya and handed out sentences of up to 78 years in jail. Given the gravity of the offenses, Thailand has amended its Anti-Trafficking Act three times since (in 2015, 2017, and 2019), expanding the definition of trafficking to include coercion and forced labor, as well as confiscation of personal documents.

In contrast, Malaysian courts convicted only four individuals of trafficking-related offenses in connection with the discovery of mass graves in Wang Kelian. All those convicted were foreigners—one Thai, one Bangladeshi, and two from Myanmar. Under Malaysia's 2007 Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, the perpetrators received jail sentences between three and ten years. The Royal Malaysian Police reportedly also arrested 12 local police officers but released them due to lack of evidence, or more precisely, willful destruction of evidence (Human Rights Commission of Malaysia 2019).

No facilitators were arrested in Indonesia in relation to the 2015 Andaman Sea crisis and the disembarkation of rescued Rohingya in Indonesia. This was to change in 2021, when Faisal, Abdul, and Afrizal, the three fishermen who had rescued 99 Rohingya in June 2020, stood trial for alleged human smuggling. According to the police investigation, the three fishermen had not come across the Rohingya boat by coincidence. Instead, it was revealed that they had been tasked by Shahad Deen, a Rohingya man who had been living in Indonesia since 2011, to pick up 36 passengers at a certain location at sea. According to the police report, Shahad Deen who was treated as suspect, together with Anwar and Adi Jawa, two Indonesian men who are still at large, ordered Faisal to rent a boat from the local fishermen's cooperative to pick up a group of people at sea, for which he was offered 5 million Rupiah (Rp) (500 USD) and his two boat crew members Rp 3 million (300 USD) each. Faisal rejected the initial offer and demanded more, finally agreeing with Anwar on a price of Rp 1.6 million (160 USD) per assisted passenger. After the negotiation, Faisal rented the boat from the cooperative for one month for Rp 10 million (1,000 USD), bought some supplies, and headed off to sea with his crew. Meanwhile, Anwar transferred Rp 5 million (500 USD) to Faisal's bank account and another Rp 7 million (700 USD) to Faisal's wife's account. After covering the costs of boat rental, Faisal split the remaining Rp 2 million (200 USD) with his crew. Contrary to their agreement with Anwar, Adi Jawa, and Shahad Deen, the three fishermen were underpaid.

Although the police deemed the agreement and the financial transfers sufficient evidence of Faisal's involvement in people smuggling, there is much more to the story of the rescue of the 99 Rohingya. After sailing for 19 hours, Faisal and his crew eventually located the Rohingya boat. By that time, apparently, there were no other facilitators onboard with the Rohingya anymore. After handing over the food they had brought for the Rohingya, Faisal took a closer look at their boat. He noticed that it was badly damaged and about to sink. Rather than just pick up only 36 passengers as instructed, he evacuated all 99 passengers from their boat and took them on board the boat he had rented (Rachmawati 2020). Thus, what was initially planned as a smuggling operation arguably became a rescue mission, which altered the legal dimensions of the fishermen's action.

This whole incident might have gone unnoticed, but bad luck struck when the engine of Faisal's boat failed. Rather than reaching the mainland without being observed, Faisal, hoping that the engine would start again, waited at sea for 15 hours before calling on other fishermen for help, which made the mission much more visible than ever intended. News of the Rohingya rescue spread quickly and the local authorities soon attended the scene. For two days, the local authorities tried to prevent the disembarkation of the Rohingya, but eventually they surrendered to public pressure. According to Afrizal, one of the defendants, Faizal's boat was eventually towed by a vessel belonging to the local maritime police (Lhoksukon District Court 2021: 17). Technically, Faizal and his crew did not even facilitate the entry into Indonesia, but rather it was the Indonesian authorities themselves. Unlike in previous years, when the police harassed the rescuers briefly, this time they were more committed to taking action against the rescuers. After their arrest Faisal, Abdul, and Afrizal remained in custody until their trials commenced in June 2021.

During their trials, six witnesses were heard, three of whom were from the fishing cooperative from which Faisal rented the boat. Faisal, Abdul, Afrizal, and Shahad Deen were called in as witnesses in each other's trials. None of the rescued passengers were heard in court. The prosecution demanded six years jail and an additional fine of Rp 500 million (37,000 USD), which is completely disproportionate to the average earnings of fishermen. In the judges’ deliberations, the fact that Anwar, Adi Jawa, and Shahad Deen had taken advantage of Faisal and his crew, who were after all not members of a transnationally operating smuggling networks but rather hired hands, did not play any significant role. The judges also chose to ignore the special circumstances of the rescue of the Rohingya from their 120-day ordeal at sea and the fact that the Rohingya boat was about to sink and that the 99 Rohingya on board would probably have drowned without the intervention of Faisal and his crew.

The court convicted Faisal and his crew for the offense of people smuggling under paragraph 120 of the Immigration Law (6/2011) and sentenced Faisal to five years in jail and the aforementioned fine; if he is unable to pay the fine, he will spend an additional month in jail (Lhoksukon District Court 2021). Abdul and Afrizal also received prison sentences of five years and similar fines. All sentences were confirmed in the appeal court (Banda Aceh High Court 2021 decisions No. 256-258/PID/2021/PT.BNA). Meanwhile, Shahad Deen who had commissioned Faisal and his crew, was sentenced to five years in jail and a fine of Rp 500 million (37,000 USD), but on appeal his prison term was increased by one year to six years (Banda Aceh High Court 2021, decision No. 259/PID/2021/PT.BNA).

While these sentences meet Indonesia's duties to combat transnational crime, including people smuggling, they also show the narrow scope for legal interpretation at hand when defining new rules of (im)mobility (Fradejas-García and Salazar, this issue; Haile and Schapendonk, this issue). What becomes particularly clear from these recent trials is that the courts in Indonesia ignore the complexities of the perilous transnational journeys the Rohingya must undertake in search of safety, and, more significantly, the distressing scenarios at sea that affect passengers. Despite the omnipresent rhetoric of Muslim solidarity toward the Rohingya (Missbach and Stange 2021), the courts paid no attention to the overarching political dilemma, in which the Rohingya are left without any legal options to travel in search of safety. Instead, the courts consider only a small segment of their protracted journeys. Although the networks that are moving the Rohingya across borders consist of a large variety of facilitators at different locations and stages of the journey, the courts can only punish those who are most easily apprehended (Missbach 2022). Failing to comprehend the overall complexity of the irregularized passages of the Rohingya, the courts cement a number of misconceptions about transnational crime, exploitation and irregularized migration while also sidelining the obligation to rescue people's lives.

Do smugglers care?

Some scholars refute popular mainstream perceptions of migration facilitators of unsanctioned journeys as exploitative operators, instead seeing their work as acts of border resistance and global solidarity (Achilli 2018; Khosravi 2010). There are, of course, stand-out examples of altruistic facilitators, who, moved by faith-based or ethical imperatives, help people cross borders and escape their persecutors without seeking financial, material, or other advantage from those they help. But these stand-out cases should not obfuscate the larger issue at stake here, which is the exchange of payments between those who rely on hiring transporters and those who offer services with the intention of making a profit. Trying to make a profit, however, does not per se exclude the possibility that facilitators care about the well-being of their passengers.

What makes the maritime journeys of Rohingya more complex is that they are now increasingly becoming prolonged and thus necessitate the collection of additional payments. As already noted, the prolonging of their journeys has two very distinct, but possibly interconnected, causes: facilitators may hold their passengers hostage at sea in order to extort further payments before proceeding with the journey. Yet, Rohingya also increasingly become stranded at sea, because they are prevented from disembarking and pushed back to sea by the navies of potential transit and destination countries, such as Malaysia, Thailand, and Indonesia. As the protracted journeys of the Rohingya have demonstrated, once they are out at sea, their agency against the power of the facilitators of their journeys is seriously reduced. If transporters decide to abandon their passengers, there is nothing passengers can do. But is it fair to blame only the facilitators for the hardship endured by the Rohingya on those journeys?

While the Rohingya may be exposed to extortion by facilitators who hold them hostage at sea or on land, the very fact that they are both stateless people and refugees who have been forcibly displaced from their home country while being prohibited to travel and cross borders legally equates to structural violence and extreme injustice, for which so far nobody has been held accountable (Spener 2011; Vitturini and Bellagamba, this issue). Facilitated journeys remain a crucial survival strategy for Rohingya to escape brutal genocide in Myanmar (O'Brien and Hoffstaedter 2020) and their confinement in Bangladesh. It would be easy to blame only the Myanmar government for withholding citizenship from the Rohingya for many decades, but the structural violence against the Rohingya is also manifested in widely concealed pushbacks and the non-assistance policies of other governments (Hoffstaedter and Missbach 2022). The court that convicted Faisal and his crew directed its attention exclusively to violation of immigration law by those the police had managed to apprehend. Violence committed against the Rohingya by state authorities, in pushing back boats, banning embarkation, and failing to render assistance, remained unaddressed, as courts do not hold inquiries into such structural injustices.

Conclusion

Rules of mobility keep changing, as recent years have witnessed many new restrictions meant to deter maritime refugees from reaching not only safe harbors but also durable protection. While the changing of rules never proceeds without open or indirect resistance from many different contenders, including migrants and refugees themselves (Fradejas-García and Loftsdóttir, this issue; Castellano, this issue; Haile and Schapendonk, this issue), civil society actors, and even ordinary citizens, it appears that religious and moral norms that have shaped the flow of migratory movements are increasingly taking a back seat, while state-led prohibitionist and punitive measures are gaining the upper hand.

This article has drawn attention to a case in which three fishermen, initially hired as smugglers, became the saviors of an abandoned vessel with 99 Rohingya on board adrift for more than 120 days. Instead of sparing the rescuers from their criminal liability, law enforcers opted to prosecute the rescuers. In order to convict the three fishermen of people smuggling, Indonesian law enforcers focused on certain parts of the overall journey and dismissed other crucial aspects, such as the distress the Rohingya faced at sea. The conviction of Faisal, Abdul, and Afrizal for people smuggling shows that the Indonesian courts completely ignore the right to life and the universal rescue obligations, giving preference to more narrowly focused immigration laws and border protection. Although a second police investigation into a potential smuggling case involving Acehnese fishermen and Rohingya refugees fizzled out and thus did not proceed to court, the initial conviction of the three rescuers as smugglers sets a dangerous precedent for Indonesia.

Even without numerous subsequent convictions of similar cases, the conviction of Faisal, Abdul, and Afrizal indicates a change of mobility rules, as it may well send out an amoral and unethical signal to other fishermen who might come across refugee boats in distress in the future. According to observers in Aceh and Jakarta, this trend has already materialized on the ground. Since the conviction of Faisal, Abdul, and Afrizal, more Rohingya boats have made their way to Indonesia. But Acehnese fishermen have since then chosen to not become directly involved in the rescue of stranded Rohingya. Instead of towing the boats to the shore, at most, they now direct the passengers toward the coast or hand over some supplies (Zoom conversation with Indonesian colleagues, 29 November 2022).

Positioning trafficking and smuggling operations solely as a border security issue, rather than as a broader human rights issue, ignores the hardship and the human rights abuses already suffered by highly underprivileged people. It relegates them to “human cargo” devoid of basic human rights and renders them “subhuman” (Uddin 2020). Investing predominantly in border control techniques to deter maritime refugees and intensifying law enforcement to address irregular entries constitute a very short-sighted approach that disregards the need for secondary movements. Yet, the absence of any lawful alternatives for stateless refugees, such as the Rohingya, to find safety will sustain regional smuggling and trafficking networks. More importantly, the deterrence measures applied nowadays have resulted in counterproductive outcomes. For example, pushbacks—intended to discourage Rohingya from fleeing across the Andaman Sea—enable facilitators to collect additional payments throughout the prolonged journeys, thereby subsidizing the criminal infrastructures meant to be combated. Putting rescuers in jail while state authorities continue to enjoy impunity for their illegal pushbacks and non-rescue policies not only underlines that different rules apply to different actors but indeed might prove to be extraordinarily detrimental to maritime refugees in distress, thus further spiking the human costs of deterrence policies.