Category Archives: Council of Europe

by | 23 Feb 2016 · 05:01

EUNAVFOR MED-Six Month Report: No Indication of Refugee Protection Plan for EU Operations within Libyan Territorial Waters and No Reports of Human Trafficking

There is a lot of information in the EUNAVFOR MED Operation SOPHIA Six Month Report   (also here: EEAS-2016-126) that was released last week by WikiLeaks, but there are two subjects not discussed which jumped out at me.

No Discussion of Refugee Protection Plan

First, the Report does not contain information regarding what the EU military force intends to do with migrants who are intercepted or rescued by EU vessels if and when EUNAVFOR MED patrols begin to operate within Libyan territorial waters.

The Report’s ‘Next Steps and Key Challenges’ section [pp 19-21] discusses different EU contingency plans for Phase 2B of the operation and specifically discusses how suspected smugglers arrested by EU forces within Libyan territorial waters would be handled. The Report says suspected smugglers should not be turned over by EU forces to Libyan officials for criminal prosecution unless it can be ensured ‘that they [will be] treated in accordance with human rights standards that are acceptable to the EU and Member States.’ According to the Report, forty-six suspected smugglers have been arrested by EUNAVFOR MED in international waters (between 22 June and 31 December 2015) and all of these individuals have been turned over to Italian authorities for prosecution by Italy’s DNAA – Direzione Nazionale Antimafia ed Antiterrorismo. Italy is so far the only EU Member State prosecuting suspected smugglers.

But unlike the discussion regarding the treatment of suspected smugglers, there is no discussion in the Report about where migrants who are intercepted or rescued in Libyan territorial waters will be taken or how they will be processed. It is certainly possible that intercepted migrants would continue to be taken from Libyan territorial waters to Italy, as is currently the case with operations on the high seas, but I suspect this may not be the plan once EUNAVFOR MED operations are expanded to Libyan territorial waters.

The fact that there is no discussion in the Report of where intercepted migrants will be taken does not mean that EUNAVFOR MED does not have appropriate plans in place, but the omission is troubling because the Report makes clear that once Phase 2B (territorial waters) operations begin, EUNAVFOR MED forces will be interacting and cooperating with the Libyan Navy and Coastguard. (The Report also notes that if requested and if its mandate is amended, EUNAVFOR MED is ready to begin quickly providing capability and capacity building to the Libyan Navy and Coastguard.)

EUNAVFOR MED’s interaction with Libyan forces in territorial waters would, according to the Report, initially include Libyan ‘cooperation in tackling the irregular migration issue’, with the expectation that at a later point in time ‘Libyan authorities could take the lead in patrolling and securing their Territorial Waters, with support being provided by EUNAVFOR Med.’ The Report therefore describes a changing scenario where EU forces would first act alone in Libyan territorial waters, which would lead to some level of cooperation with Libyan authorities (joint patrols? shipriders?), which would finally lead to Libyan authorities taking the lead on enforcement activities, with the EU playing a supporting role of some sort.

The legality of the Phase 2B operations will depend on the details of how intercepted or rescued migrants are processed and where they are taken. EU Member States operating within EUNAVFOR MED would necessarily be exercising effective control over migrants when operating unilaterally or jointly with Libyan forces within Libyan territorial waters and EU Member States would therefore be bound by the non-refoulement obligations in the ECHR, the Refugee Convention, the CAT, and the ICCPR. Any such operations would be subject to the 2012 Hirsi Jamaa v Italy judgment of the ECtHR which rejected Italy’s past push-back practices and close cooperation with the pre-Arab Spring Libya, finding the push-back practices to violate the ECHR’s prohibition on non-refoulement and to constitute collective expulsion.

EUNAVFOR MED’s Phase 2B operation seeks to replicate what Frontex and Spain have done off the coasts of Mauritania, Senegal and Morocco since 2006 pursuant to Joint Operation HERA where Spain and Frontex initially deployed naval patrols in international waters, then negotiated bilateral agreements to move patrols to territorial waters, deployed joint patrols and shipriders within territorial waters, and then continued to provide various forms of support to Mauritania and other West African states to patrol their own territorial waters. Operation HERA succeeded in stopping most boat migration from West Africa, but did so in a manner which did not provide any process to screen intercepted migrants for claims for international protection and subjected intercepted migrants to refoulement.

In order to ensure that non-refoulement obligations are respected and that rights of migrants are otherwise protected, as the EU and EUNAVFOR MED move towards implementation of Phase 2B operations within Libyan territorial waters, more information and transparency is needed to determine and monitor the legality of all aspects of the operations.

No Reports of Human Trafficking

The second perhaps less significant piece of information that jumped out at me as I read the Report was the lack of any suggestion that EUNAVFOR MED patrols have discovered evidence of human trafficking. The Report makes multiple references to trafficking, but always in conjunction with human smuggling, eg, ‘smuggler and traffickers’ business model’, ‘smuggler and trafficker vessels’. The use of the trafficking term seems to be a continuation of the use of imprecise terminology (and possible ongoing confusion over the differences between human trafficking and smuggling as well?). But the Report’s ‘Smugglers’ Business Model’ section [pp 6-8] is clearly only discussing acts of smuggling.

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Filed under Analysis, European Court of Human Rights, European Union, Frontex, Italy, Libya, Mediterranean, Refugees, Reports, UN Security Council, UNHCR

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by | 16 Apr 2014 · 04:37

Panel Discussion: “Heading to Europe: Safe Haven or Graveyard?,” Radboud University Nijmegen, 16 May

From the organizers:

The Interest Group on Migration and Refugee Law of the European Society of International Law, the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam are pleased to announce ‘Heading to Europe: Safe Haven or Graveyard?’, a panel discussion on migration by sea in the Mediterranean. The panel discussion will be held on 16 May 2014 at the Radboud University Nijmegen.

The year of 2013 has demonstrated that the tragedy of thousands of migrants and refugees drowning on the shores of Europe is now a common occurrence. The fate of those who perished near the Italian island of Lampedusa has brought the urgency of the situation into focus. The aim of the panel discussion is to provide an overview of the legal rules and processes applicable to migration by sea in the Mediterranean and to reflect on their wider sociological implications.

The panel discussion consists of two panels, each followed by a plenary discussion. In the first panel, legal experts working in the field of academia and at stakeholder organizations (e.g. UN Refugee Agency, Council of Europe, European Union) focus on legal aspects of boat migration in the Mediterranean. The second panel brings together scholars and practitioners with first-hand experience from transit countries to discuss the sociological effects of the legal rules and processes. Click here for the complete program, and here for more information on the panelists.

The organizing partners cordially invite interested scholars, governments officials, practitioners and advanced students to join in the panel discussion ‘Heading to Europe: Safe Haven or Graveyard?’. Active participation in the discussion is strongly encouraged. Participation is free of charge. For participation, please register at the bottom of this page. For inquiries, please contact Lisa-Marie Komp at lisa-marie.komp@law-school.de.

Location is the CPO-zaal, Spinozagebouw at the Radboud University in Nijmegen (Montessorilaan 3).

CLICK HERE TO REGISTER

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Filed under Colloques / Conferences, Council of Europe, European Union, Frontex, Mediterranean

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by | 04 Oct 2013 · 05:54

Lampedusa – 300 or more dead in latest accident, what can be done to stop migrant deaths at sea?

Italian authorities have so far recovered about 120 bodies from yesterday’s accident a very very short distance from the shores of Lampedusa. Authorities believe there may be more than 150 bodies of children, women, and men still to be recovered.

What can be done to prevent such deaths? It is certainly possible that nothing could have prevented yesterday’s disaster.  This was not a case of a disabled boat left to drift at sea while ships and aircraft failed to assist.  This was not a case involving a failure to act promptly to rescue persons in distress.  This was not a case of a diplomatic dispute between countries over which country had the responsibility to rescue and where rescued persons were to be disembarked after rescue.  It may turn out to be the case that someone observed the overloaded migrant boat as it sailed from Libya towards Lampedusa.  If the migrant boat was observed by a commercial or military ship, a rescue operation probably should have been implemented immediately.  But while the Mediterranean Sea is crowded with ships, it is certainly possible that this boat sailed unobserved from Libya to Lampedusa.

Could anything have been done to prevent these deaths?

Could anything have been done to prevent the deaths of 13 migrants who drowned on the beach at Sicily last week? Or the 31 people who drowned off the Libyan coast in July? Or the 20 who died near Lesvos Island in Greece last December, the 89 who died in the Strait of Gibraltar over 10 days in October-November 2012, or the 58 who died off the coast of Izmir, Turkey in September 2012?  (For a more complete list of reported deaths at sea consult Fortress Europe’s La Strage web page (the Massacre).)

As long as people move, whether forced to flee danger or to improve their lives or for other reasons, there will be dangers on land and sea.  The dangers will always be greater when people are compelled to move outside of legal channels. Creating more opportunities for legal migration and creating an external procedure for seeking refugee protection within the EU would help many people and would reduce the numbers of people traveling by dangerous means.  But there will still be people unable to secure a visa or protection who would be compelled to travel by sea. 

There are many measures that can be taken by the EU to reduce the numbers of people dying in the Mediterranean and off the coast of western Africa.  As a reminder, here is an excerpt from the recommendations issued last year by the Parliamentary Assembly of the Council of Europe in the report issued in the aftermath of the deaths of 63 people on board the “left to die” boat that drifted in the Mediterranean for two weeks. The recommendations made sense then as they do now:

  •  fill the vacuum of responsibility for an SAR zone left by a State which cannot or does not exercise its responsibility for search and rescue, such as was the case for Libya. This may require amending the International Maritime Search and Rescue Convention (SAR Convention)….;
  • ensure that there are clear and simple guidelines, which are then followed, on what amounts to a distress signal, so as to avoid any confusion over the obligation to launch a search and rescue operation for a boat in distress;
  • avoid differing interpretations of what constitutes a vessel in distress, in particular as concerns overloaded, unseaworthy boats, even if under propulsion, and render appropriate assistance to such vessels. Whenever safety requires that a vessel be assisted, this should lead to rescue actions;
  • tackle the reasons why commercial vessels fail to go to the rescue of boats in distress. This will require dealing with:
    • the economic consequences for the rescuing vessel and its owners, and the issue of compensation;
    • the disagreement between Malta and Italy as to whether disembarkation should be to the nearest safe port or to a port within the country of the SAR zone. The International Maritime Organization should be urged to find a solution to the matter and step up its efforts towards a harmonised interpretation and application of international maritime law;
    • the fear of criminalisation (trafficking or aiding and abetting irregular migration) by those who go to the rescue of boats carrying irregular migrants, asylum seekers and refugees;
    • legislation to criminalise private shipmasters who fail to comply with their duty under the law of the sea, as is already the case in certain Council of Europe member States;
  • ensure that, in accordance with the Hirsi v. Italy judgment of the European Court of Human Rights, after the rescue operation, people are not pushed back to a country where they risk being treated in violation of Article 3 of the European Convention on Human Rights;
  • tackle the issue of responsibility sharing, particularly in the context of rescue services, disembarkation, administration of asylum requests, setting up reception facilities and relocation and resettlement, with a view to developing a binding European Union protocol for the Mediterranean region. The heavy burden placed on frontline States leads to a problem of saturation and a reluctance to take responsibility;
  • respect the families’ right to know the fate of those who lose their lives at sea by improving identity data collection and sharing. This could include the setting up of a DNA file of the remains of those retrieved from the Mediterranean Sea. In this context, the ongoing work of the International Committee of the Red Cross (ICRC) and other organisations should be acknowledged and supported.

For more on this, see Jack Shenker’s article in today’s Guardian, “Mediterranean migrant deaths: a litany of largely avoidable loss.”

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by | 29 Jan 2013 · 07:11

PACE Calls for Urgent Measures to Assist Greece and Turkey With Mounting Migratory Tensions in Eastern Mediterranean

PACE, the Council of Europe’s Parliamentary Assembly, adopted a Resolution on 24 January 2013 calling for “firm and urgent measures [to] tackle the mounting pressure and tension over asylum and irregular migration into Greece, Turkey and other Mediterranean countries.”  The Resolution noted that Greece, with EU assistance, has enhanced border controls, particularly along its land border with Turkey and while “these policies have helped reduce considerably the flow of arrivals across the Evros border with Turkey, they have transferred the problem to the Greek islands and have not helped significantly in dealing with the situation of irregular migrants, asylum seekers and refugees already in Greece.”

The Resolution makes recommendations to the EU, Greece, and Turkey and calls on CoE members states to “substantially increase their assistance to Greece, Turkey and other front-line countries” in various ways, including:

  • provide bi-lateral assistance, including by exploring new approaches to resettlement and intraEurope relocation of refugees  and asylum seekers;
  • share responsibility for Syrian refugees and asylum seekers via intra European Union relocation and refrain from sending these persons back to Syria or third countries;
  • maintain a moratorium on returns to Greece of asylum seekers under the Dublin Regulation.

The Resolution was supported by a Report prepared by Ms Tineke Strik, Rapporteur, PACE Committee on Migration, Refugees and Displaced Persons.

Click here for full text of Resolution 1918(2013), Migration and asylum: mounting tensions in the Eastern Mediterranean.

Click here for PACE press statement.

Click here for Report by Rapporteur, Ms Tineke Strik, Doc. 13106, 23 Jan 2013.

Here are extensive excerpts from the Rapporteur’s Report (which should be read in its entirety):

“Summary –  Greece has become the main entry point for irregular migratory flows into the European Union, while Turkey has become the main country of transit. [***]

Europe must drastically rethink its approach to responsibility sharing to deal with what is a European problem and not one reserved to a single or only a few countries. Member States are called on to substantially increase their support for Greece, Turkey and other front-line countries to ensure that they have a realistic possibility of dealing with the challenges that they face. In this the Council of Europe also has a role to play, for example through exploring resettlement and readmission possibilities, assisting States in dealing with their asylum backlogs and putting forward innovative projects to alleviate growing racism and xenophobia towards migrants, refugees and asylum seekers.

[***]

C. Explanatory memorandum by Ms Strik, rapporteur

1. Introduction

[***]

2. Greece is facing a major challenge to cope with both the large influx of mixed migratory flows, including irregular migrants, refugees and asylum seekers, and the current economic crisis. That said it is not the only country struggling to cope in the region. It is impossible to look at the situation of Greece without also examining that of Turkey, which is the main country of transit to Greece and is also having to shoulder responsibility for over 150 000 Syrian refugees.

3. In the light of the foregoing, it is necessary to examine the extent of the migration and asylum challenges at Europe’s south-eastern border, taking into account Turkey and Greece’s policy reactions. Two further elements have to be added to this, namely the social tensions arising within Greek society due to an overload of financial and migratory pressure and also the issue of shared responsibility in Europe for dealing with European as opposed to simply national problems.

2. The storm at Europe’s south-eastern border

2.1. Greece under pressure: irregular migration challenge and economic crisis

4. In recent years, hundreds of thousands of irregular migrants, asylum seekers and refugees crossed the Greek land, river and sea borders with many travelling through Turkey. In 2010, the large majority of mixed migratory flows entered the European Union through the Greek-Turkish border. This situation brings major challenges in terms of human rights and migration management.

5. According to statistics provided by the United Nations High Commissioner for Refugees (UNHCR), in 2010, more than 132 000 third-country nationals were arrested in Greece, including 53 000 in the Greek-Turkish border regions. During the first ten months of 2012, over 70 000 arrests occurred, including about 32 000 at the borders of Turkey.  People came from 110 different countries – the majority from Asia, including Afghanis, Pakistanis and Bangladeshis, as well as from Iraq, Somalia, and the Middle-East, especially Palestinians and an increasing number of Syrians.

6. Most migrants and asylum seekers do not want to stay in Greece and plan to continue their journey further into Europe. Many of them are however stuck in Greece, due to border checks and arrests when trying to exit Greece, the current Dublin Regulation, and the fact that many irregular migrants cannot be returned to their country of origin.

7. The context of the serious economic and sovereign debt crisis aggravates the situation and reduces the ability for the Greek Government to adequately respond to the large influx. [***]

2.2. Syria: a bad situation could get worse

8. In its Resolution 1902 (2012) on “The European response to the humanitarian crisis in Syria”, the Parliamentary Assembly condemned “the continuing, systematic and gross human rights violations, amounting to crimes against humanity, committed in Syria”. It described the humanitarian situation as becoming “more and more critical” for the estimated 1.2 million internally displaced Syrians and the 638 000 Syrians registered or awaiting registration as refugees in neighbouring countries.

[***]

11. By October 2012, 23 500 Syrian nationals had applied for asylum in EU member States, including almost 3 000 applications in September 2012 alone, and over 15 000 in Germany and Sweden.  Compared to neighbouring countries, asylum seeker numbers in the European Union currently remains manageable. However the number of Syrians trying to enter Greek territory in an irregular manner reached a critical level in July 2012, when up to 800 Syrians were crossing the Greek-Turkish land border every week. In the second half of 2012, more than 32% of sea arrivals to the Greek Islands were Syrian nationals.

2.3. Regional implications of mixed migratory arrivals

12. In recent years, Spain, Italy and Malta were at the forefront of large-scale sea arrivals. According to the UNHCR, in 2012, 1 567 individuals arrived in Malta by sea. 75% of these persons were from Somalia. The UNHCR estimates however that less than 30% of the more than 16 000 individuals who have arrived in Malta since 2002 remain in Malta.

13. Spain and Italy have signed and effectively enforced readmission agreements with North and West African countries cutting down on the mixed migration flows. These agreements have provided the basis for returning irregular migrants and preventing their crossing through increased maritime patrols and border surveillance, including in the context of joint Frontex operations.

14. As a consequence of shifting routes, migratory pressure at the Greek-Turkish border increased significantly and Greece became the main gate of entry into the European Union from 2008 onwards, with an interval in 2011 when the Arab Spring brought a new migratory flow to Italy and Malta. To give an idea of how much the routes have changed, Frontex indicated that in 2012, 56% of detections of irregular entry into the European Union occurred on the Greek-Turkish border.

15. Turkey, by contrast, has become the main transit country for migrants seeking to enter the European Union. Its 11 000-km-long border and its extensive visa-free regime make it an easy country to enter. An estimated half a million documented and undocumented migrants currently live in the country. This has brought a whole new range of challenges for Turkey and meant that it has had to develop a new approach to migration management and protection for those seeking asylum and international protection.  It has also faced problems in terms of detention of irregular migrants and asylum seekers. As with Greece, the conditions of detention have been highly criticised and steps are being taken to build new centres with the assistance of funding from the European Union.

16. Until recently, the traditionally complex Greek-Turkish political relations did not allow the pursuit and consolidation of an effective readmission policy with Turkey. Although Greece, for example, signed a readmission protocol with Turkey which goes back to 2001, the implementation of this was only agreed on in 2010. It is important that this bilateral agreement between Greece and Turkey functions effectively and this will be a challenge for both countries.

3. Shielding Greece through border management and detention: does it work?

3.1. Enhanced border controls at the Greek-Turkish land border (Evros region)

17. The unprecedented numbers of irregular migrants and asylum seekers attempting to cross the Greek-Turkish border in recent years put the existing capacities and resources of Greece under severe strain. To remedy this situation, the Greek authorities have adopted the “Greek Action Plan on Asylum and Migration Management”, which is the basis for reforming the asylum and migration management framework in Greece.

18. In this context, considerable efforts were undertaken to reinforce Greece’s external borders and particularly the Greek-Turkish border in the Evros region. This was done notably through building up operational centres, using electronic surveillance and night vision devices, and by deploying patrol boats to strengthen river patrols. The surveillance technology used is part of the efforts under the European Border Surveillance System (Eurosur).

19. The so-called operation “Aspida” (“shield”), initiated in August 2012, aims to enhance border controls, surveillance and patrolling activities at the Greek-Turkish land border. Approximately 1 800 additional police officers from across Greece were deployed as border guards to the Evros region.

20. Increased border controls in the context of this operation have not been without criticism. There have been worrying reports about migrants, including refugees and asylum seekers from Syria and other countries, being pushed back to Turkey over the Evros river.  Two incidents reportedly took place in June and October 2012, when inflatable boats were intercepted in the middle of the Evros river by Greek patrol boats and pushed back to Turkey before their boat was sunk, leaving people to swim to the Turkish shore.

21. In addition, the Greek authorities completed a barbed wire fence at the 12.5-km-land border in December 2012. The barrier which was criticised by EU officials when announced  and built without EU funding, cost an estimated 3 million euros.

22. As a consequence of these actions, the numbers of irregular land border crossings dropped from over 2 000 a week in the first week of August to below 30 a week in the second half of September. According to the regional governor of Eastern Macedonia and Thrace, they are now close to zero.  While the Greek authorities claim that these actions have resulted in a more than 80% decrease of irregular entries,  one can observe that migrants’ routes have shifted from the Greek-Turkish land border mainly to the sea border between both countries. This shift has been recognised by the Greek authorities.

23. Increased numbers of migrants are now arriving on the Greek Aegean islands of Lesvos, Samos, Symi and Farmkonissi. Between August and December 2012, 3 280 persons were arrested after crossing the Greek-Turkish sea border,  compared to 65 persons in the first seven months of 2012.

24. There has also been an increase in the number of deaths at sea. In early September 2012, 60 people perished when their boat sank off the coast in Izmir.  On 15 December 2012, at least 18 migrants drowned off the coast of Lesvos while attempting to reach the island by boat.

25. The spill over effect of new routes opening are now being felt by neighbouring countries, such as Bulgaria and some of the Western Balkans.

3.2. Systematic detention of irregular migrants and asylum seekers

26. Together with increased border controls, administrative detention remains the predominant policy response by the Greek authorities to the entry and stay of irregular migrants.  [***]

[***]

29. Particularly worrying are the conditions in the various detention centres and police stations where irregular migrants and asylum seekers are held, and which have frequently been criticised. The European Court of Human Rights has found Greece to be in violation of the right to freedom from inhuman or degrading treatment in several cases in recent years.  In addition, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (CPT) has regularly criticised the poor detention conditions of irregular migrants and asylum seekers and the structural deficiencies in Greece’s detention policy as well as the government’s persistent lack of action to improve the situation.  See also: CPT, Report on its visit from 19 to 27 January 2011, published on 10 January 2012, at: www.cpt.coe.int/documents/grc/2012-01-inf-eng.pdf, together with the reply by the Greek authorities, at: www.cpt.coe.int/documents/grc/2012-02-inf-eng.pdf. The conditions of detention in one centre in Greece were found to be so bad that a local court in Igoumenista acquitted, earlier this year, migrants who were charged with escaping from detention stating that the conditions in the centre were not in compliance with the migrants’ human rights.

[***]

3.3. Impediments in accessing asylum and international protection

35. Despite the current efforts by the Greek authorities to reform the asylum and migration management framework, the country still does not have a fair and effective asylum system in place. The Greek Action Plan on Migration and Asylum, which was revised in December 2012, sets out the strategy of the Greek Government. It foresees the speedy creation of a functioning new Asylum Service, a new First Reception Service and a new Appeals Authority, staffed by civil servants under the Ministry of Public Order and Citizens Protection, disengaging the asylum procedure from the police authorities. However problems in finding sufficient financial resources and qualified staff still give rise for concerns on the implementation of the plans.

[***]

4. Social tensions within Greek society

4.1. The social situation of migrants and asylum seekers

41. Greece’s efforts to deal with the influx of irregular migrants and asylum seekers suffers from there being no comprehensive migration policy. [***]

4.2. Discrimination, xenophobia and racist attacks against migrants

46. The mounting social tensions and the inadequate response by the State to address the difficult social situation of migrants, asylum seekers and refugees have led to an increase in criminality and exploitation of this group. In addition, migration has become a key confrontational political issue. This in turn has contributed to an increasingly wide-spread anti-immigrant sentiment among the Greek population.

47. Over the last two years there has been a dramatic increase in xenophobic violence and racially motivated attacks against migrants in Greece, including physical attacks, such as beatings and stabbings, attacks on immigrants’ residences, places of worship, migrants’ shops or community centres.  The Network for Recording Incidents of Racist Violence documented 87 racist incidents against migrants and refugees between January and September 2012.  Half of them were connected with extremist groups.

48. Members and supporters of Golden Dawn have often been linked with recent violent attacks and raids against migrants and asylum seekers. By using blatantly anti-migrant and racist discourse, often inciting violence, Golden Dawn gained 7% of the popular vote during the June 2012 parliamentary elections and support seems to be growing, according to recent polls. In October 2012, the Greek Parliament lifted the immunity from prosecution of the two Golden Dawn MPs who participated in the violent attacks against migrants in September.

49. The Council of Europe Commissioner for Human Rights has called on Greece to examine whether the “most overt extremist and Nazi party in Europe” is legal. It seems that Golden Dawn aims at political and societal destabilisation and gains by the failing policy regarding refugees and irregular migrants. In December 2012, the European Commission against Racism and Intolerance (ECRI) expressed its “deep concern” about the rise of Golden Dawn and asked the Greek authorities to “take firm and effective action to ensure that the activities of Golden Dawn do not violate the free and democratic political order or the rights of any individuals”.

5. The European responsibility for a European problem

5.1. European front-line States under particular pressure

50. This is not the first time that the Parliamentary Assembly expresses its concern on the particular pressure that European front-line States are confronted with. Resolution 1521 (2006) on the mass arrival of irregular migrants on Europe’s Southern shores, Resolution 1637 (2008) on Europe’s “boat people”: mixed migration flows by sea into southern Europe and Resolution 1805 (2011) on the large-scale arrival of irregular migrants, asylum seekers and refugees on Europe’s southern shores.

51. Despite the fact that most European Union countries have stopped returning asylum seekers to Greece under the Dublin Regulation following the judgment of the European Court of Human Rights in the case M.S.S. v. Belgium and Greece,  there are still some reports of returns from some countries based on this regulation.

52. The final agreement between the Council and the European Parliament on the revision of the Dublin Regulation still allocates responsibilities for asylum seekers to a single EU member State and does not present a more fundamental reform of the rules. European Union member States also rejected the idea of a mechanism to suspend transfers to those EU countries which were unable to manage the influx of asylum seekers into their territory, preferring to adopt an “early warning mechanism”.

5.2. Greece: A test case for European solidarity

53. This migratory pressure Greece is confronted with comes at a moment when the country is suffering as no other European country does from the current economic and social crisis. In response to these difficulties, the European Union has provided financial and technical assistance.

54. During the period of 2011-2013, Greece received 98,6 million euros under the Return Fund, 132,8 million euros under the External Border Fund and 19,95 million euros under the European Refugee Fund. The focus of funding was thus on border control and detention measures, to the detriment of the protection measures.

55. Frontex Joint Operation “Poseidon Land” was launched in 2010 at the borders between Turkey and Greece and between Turkey and Bulgaria. EU member States currently have 41 police officers and equipment deployed to the Evros border region in Greece.  They also support the Greek and Bulgarian authorities with the screening and debriefing of irregular migrants, and tackling irregular migratory inflows and smuggling networks towards Greece. In addition, Frontex has recently strengthened its patrols in the coastal waters in the Eastern Aegean between Greece and Turkey in the context of Joint Operation “Poseidon Sea”. European Union member States have deployed additional maritime surveillance assets at the sea border between Greece and Turkey. The joint operation was extended to also cover the West coast of Greece and today is Frontex’s main operational activity in the Mediterranean region.

56. Furthermore, the European Asylum Support Office (EASO) provides technical support to Greece and other EU member States whose asylum and reception systems are under particular pressure. Following the request by the Greek Government in February 2011, EASO started giving assistance and training in building up a new asylum system, improving reception conditions of asylum seekers in Greece and clearing the backlog of outstanding asylum claims. To do this they have deployed over 40 Asylum Support Teams of experts to the country.

57. While EU member States are ready to provide financial and technical assistance to help Greece in managing and controlling its borders, with a focus on both forced and voluntary returns as a policy solution, they are not keen on sharing the reception and processing of mixed migratory flows arriving at the European Union’s external border. According to the Greens/European Free Alliance of the European Parliament, “[m]igration will not be stopped by reinforcing border control, border management measures and forced returns; the current approach only reinforces human rights violations”.

58. As rapporteur I would largely agree with this statement, although I would add that while such policies may be able to solve a problem in one country, it then simply “passes the buck” to another. Should it be possible to seal Greece’s border, this would undoubtedly then put even greater pressure on Turkey and Bulgaria and then up the eastern borders of the European Union. This is an issue which will be the subject of a separate report by the Committee on Migration, Refugees and Displaced Persons.

59. The European Union response to the economic and financial crisis in Greece has been a massive bail out. Similar solidarity is however necessary with regards to the current social and humanitarian crisis in the field of migration and asylum. Europe is however doing too little, too late. A shared asylum policy that takes into account that the migratory pressures are not the sole responsible of one or a few European States, but a European problem, is even more essential in a time when the region is facing major instability. This instability will only increase further if the up and coming Golden Dawn party succeeds in exploiting the immigrant issue. Europe cannot afford to look away.

60. Increased migratory flows to European front-line States requires a fundamental rethink on solidarity and responsibility sharing. This includes swift solutions that go beyond mere financial and technical assistance and show greater solidarity in receiving refugees and asylum seekers and developing resettlement, especially currently for Syrian refugees from the neighbouring countries of Syria, and intra-EU relocation programmes, in particular where children and families are concerned. Assembly Resolution 1820 (2011) on asylum seekers and refugees: sharing responsibility in Europe provides meaningful recommendations in this respect.

6. Conclusions

61. The pressure of mixed migratory flows currently unfolding at the European Union’s external borders in the eastern Mediterranean requires rethinking of the entire solidarity system with the European Union and the Council of Europe. Greece, Turkey or other neighbouring countries should not be left with the primary responsibility of dealing with the mounting mixed migratory pressure from the South and East. A shared asylum and migration policy is even more essential at a time when the region is facing major economic and social instability.

62. Stricter border control, prolonging migrants’ and asylum seekers’ detention or constructing new detention facilities in Greece all contribute to further human rights violations taking place. They are not the way out of the problem and they do not persuade people fleeing from poverty or violence in their countries of origin to remain at home.

63. The recent efforts by the Greek authorities to introduce a more effective and humane system addressing the large number of irregular migrants and asylum seekers entering Greece is a welcome step in the right direction. Greece however faces a Herculean task in building up an efficient, fair and functioning system providing international protection to those in need.

64. Europe urgently needs to join forces to deal with the Syrian refugee problem, offering resettlement and relocation to relieve the burden falling on neighbouring States of Syria as well as its southern European States, and ensuring that Syrian refugees are not sent back.

65. The challenges are great but not insurmountable for Europe. Left to individual States they are.

[***]”

Click here for full text of Resolution 1918(2013), Migration and asylum: mounting tensions in the Eastern Mediterranean.

Click here for PACE press statement.

Click here for Report by Rapporteur, Ms Tineke Strik, Doc. 13106, 23 Jan 2013.

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by | 28 Nov 2012 · 05:32

European Commission’s Second Biannual Report on Schengen Area

The European Commission released its “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)  The first reporton the Schengen area was released in May of this year.  (COM(2012) 230 final, 16.5.2012)

Here are a few excerpts from the 8 page document:

The Commission intends to present a legislative proposal in early 2013 to replace the Frontex sea border operations rule (Council Decision 2010/252/EU) that was annulled by the Court of Justice on 5 September 2012;

Subsequent to the issuance of a letter of formal notice to Greece in October 2009 in response to “allegations of serious difficulties faced by migrants in applying for asylum and ill-treatment of asylum-seekers, including the turning back of persons who may face serious harm or persecution”, the Commission is continuing to analyse the situation “in the light of constant developments, such as the progress made in the implementation of the Greek National Action Plan.”;

Subsequent to a Commission request to Italy in July 2009 “to provide information on the measures to avoid the risk of refoulement” and the February 2012 European Court of Human Rights decision in the Case of Hirsi v. Italy, “[a]gainst this background, the Commission is now analysing the implications of this ruling on border surveillance operations at sea and on the asylum acquis.

Click  here or here for Second Report.

Click here for First Report.

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by | 09 Sep 2012 · 23:55

PACE Rapporteur Strik and HRW Respond to Recent Migrant Boat Tragedies

Tineke Strik (Netherlands, SOC), rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) on “Lives lost in the Mediterranean Sea: who is responsible?”, issued a statement on Friday in response to the deaths of 61 persons from Syria and other countries (including 31 children) off the Turkish coast and the ongoing migrant boats departing from North Africa:

“In the case of the boat off Turkey, many of those on board are thought to have come from Syria where a humanitarian crisis is in full swing. Asylum seekers from the conflict there are heading not only to neighbouring states but also to the rest of Europe[.]  This is an urgent warning that Europe must give much greater priority to the humanitarian situation evolving in Syria, and find new means to tackle the migration flows between Turkey and Greece – for Turkey’s sake, for Greece’s stake, for Europe’s stake, and for the sake of all those who have lost their lives and who will continue to lose their lives crossing between the two countries. European countries should also be prepared to take their share in the protection of Syrian refugees, as neighbouring countries Jordan and Turkey are facing growing problems in coping with such large numbers. We know that a failure to react adequately to the humanitarian consequences of the Libya conflict caused unnecessary deaths. Let us not repeat those mistakes with the conflict in Syria.”

Human Rights Watch also issued a statement:  “The deaths of so many children should be a wake-up call to EU leaders[.]  Europe can and should do more to limit tragedies like these in the future…. Both Frontex, the EU external borders agency, and a proposed new European External Border Surveillance System (EUROSUR) include rescue at sea in their mandates, but lack specific guidelines and procedures to ensure that rescue is the paramount consideration in EU operations at sea. Preventing deaths at sea needs to be at the heart of a coordinated European-wide approach to boat migration…. The EU should also coordinate with Turkish authorities to ensure that there are no gaps in rescue coverage. … Europe squabbled and dragged its feet last year when tens of thousands came by sea to escape chaos and conflict in North Africa…. It needs to live up to European values this time around, and do its utmost to ensure that those fleeing Syria reach safety.”  Human Rights Watch released a briefing paper in August regarding ongoing migrant deaths in the Mediterranean.

Click here for full Statement by Tineke Strik.

Click here for full HRW Statement.

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by | 19 Jul 2012 · 16:28

Article: M Tondini, “The legality of intercepting boat people under search and rescue and border control operations with reference to recent Italian interventions in the Mediterranean Sea and the ECtHR decision in the Hirsi case”

A new article by Matteo Tondini, Ph.D., “The legality of intercepting boat people under search and rescue and border control operations with reference to recent Italian interventions in the Mediterranean Sea and the ECtHR decision in the Hirsi case”, has been published in Vol. 18 of the Journal of International Maritime Law (subscription required).

Here is the abstract: “This article briefly addresses the legal grounds for the interception of boat people on the high seas by military vessels, taking into account the Italian Navy’s [experience] on the matter. If interceptions are conducted within the framework of an `extraterritorial’ border control operation, their legality is hardly sustainable. Conversely, when interventions are implemented as search and rescue (SAR) operations, their legal basis is much wider, provided that intervening states’ obligations under the SAR legal regime are coupled with those stemming from the prohibition of refoulement under international refugee law. As a result, rescued migrants can only be disembarked to `safe third countries’, namely countries in which they do not run the real risk of being persecuted or returned to other countries `at risk’. According to some very recent international and national jurisprudence, including the European Court of Human Rights’ decision in the Hirsi, before disembarking migrants, intervening states should in principle carry out a positive assessment on the functionality of the recipient country’s asylum system. In order to assess clearly the legality per se of interceptions, this article supports the necessity of applying a prevalence criterion, according to which if the SAR character prevails over the objective of preventing irregular migration, the intervention in question should be considered an authentic and lawful salvage operation.”

Also of note by the same author is his October 2010 paper, “Fishers of Men? The Interception of Migrants in the Mediterranean Sea and Their Forced Return to Libya.”

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by | 17 Jul 2012 · 04:47

CoE Human Rights Commissioner Welcomes Italian Declarations that Migrant Push-Back Policy Will No Longer Be Applied

Council of Europe Human Rights Commissioner Nils Muižnieks completed a four day visit to Italy between 3-6 July.  The visit was “focused on the human rights of Roma and Sinti and on the human rights of migrants, including asylum seekers.”  A report on the visit will be issued in the future.  In the meantime the Commissioner released a statement on 9 July in which he “welcomed recent declarations [in Italy] at the highest political level that the ‘push-back’ policy will no longer be applied, in the light of the Hirsi Jamaa judgment of the Strasbourg Court [and stated his appreciation for] the efforts throughout the country to accommodate persons arriving from North Africa in the first half of 2011…”  The Commissioner further “recommended that the system of reception centres be unified, guaranteeing an adequate level of protection everywhere, and capable of responding to fluctuating migratory flows. The Commissioner also pointed out that once officially recognized, refugees and other beneficiaries of international protection do not receive the crucial support they need to integrate into Italian society, and are therefore forced to live in destitute conditions. The Commissioner said ‘I personally witnessed the intolerable circumstances faced by 800 such persons, struggling to survive in an abandoned building in Rome. This is unacceptable in a country like Italy’.”

Click here for full statement.

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by | 12 Jul 2012 · 16:59

Statement from PACE Rapporteur Tineke Strik on Most Recent Deaths in Mediterranean Sea: “When will this ever end?”

Full Text (FR ci-dessous):  Strasbourg, 11.07.2012 – “Yet again, a dinghy with 55 people on board drifted for 15 days on the Mediterranean. This time, only one person survived. When will this ever end?,” today asked Tineke Strik (Netherlands, SOC), rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) on “Lives lost in the Mediterranean Sea: who is responsible?”. She expressed her great sadness and anger over the deaths of another 54 boat people fleeing Libya towards Italy.

“It is still not safe in Libya and the boats will continue to arrive. Europe knows that. I had hoped my report on the ‘left-to-die boat’ would serve as an eye-opener to prevent such tragedies happening time and time again. States must never hesitate to undertake immediate action to rescue people, even if they think someone else should be responsible: every minute counts,” said Senator Strik.

“Governments in Europe, and not only in the countries on the southern shores of Europe, must react, and take an equal share in the protection of asylum seekers arriving from Africa,” she added.

“It is all the more important that the resolution adopted by the Assembly in April this year is implemented and that the remaining questions are answered by NATO and by European governments. I am therefore now making public my most recent requests to member States and NATO, which remain unanswered,” she concluded.

The UNHCR estimates that this year over 170 people have lost their lives attempting to reach Italy by sea. Over 1 300 have arrived from Libya to Italy, and over 1 000 to Malta.

Letter to the Defence Secretary the United Kingdom

Letter to the Defence Minister of Spain

Letter to the NATO Deputy Assistant Secretary General for Operations

PACE Resolution 1872 (2012) (PDF)

Tineke Strik’s full report (PDF)

Strasbourg, 11.07.2012 – « Une fois de plus, un canot pneumatique avec 55 personnes à son bord a dérivé pendant 15 jours en Méditerranée. Cette fois, il n’y a eu qu’un seul survivant. Quand cela s’arrêtera-t-il ? », s’interroge Tineke Strik (Pays-Bas, SOC), l’auteur du rapport de l’Assemblée parlementaire du Conseil de l’Europe (APCE) « Vies perdues en Méditerranée : qui est responsable ? ». Elle a exprimé aujourd’hui sa profonde tristesse et sa colère à l’annonce de la mort de 54 personnes qui fuyaient la Libye pour l’Italie.

« La situation en Libye n’est toujours pas sûre et d’autres bateaux continueront d’arriver. L’Europe le sait. J’avais espéré que mon rapport sur le « bateau cercueil » provoquerait une prise de conscience et empêcherait que ces tragédies ne se reproduisent toujours et encore. Les États ne doivent jamais hésiter à prendre des mesures immédiates pour sauver des personnes, même s’ils estiment que quelqu’un d’autre devrait être responsable : chaque minute compte », a déclaré la sénatrice Strik.

« Les gouvernements européens, et pas seulement ceux des pays du rivage sud de la Méditerranée, doivent réagir et prendre une part égale dans la protection des demandeurs d’asile venant d’Afrique », a-t-elle ajouté.

« Il est d’autant plus important que la résolution adoptée par l’Assemblée en avril de cette année soit mise en œuvre et que l’OTAN et les gouvernements européens répondent aux questions encore en suspens. C’est pourquoi je rends publiques mes dernières demandes aux Etats membres et à l’OTAN, qui sont restées sans réponse », conclut-elle.

Le Haut-Commissariat de l’ONU pour les réfugiés estime que plus de 170 personnes ont péri cette année en tentant de gagner l’Italie par la mer. Plus de 1.300 personnes en provenance de Libye sont arrivées en Italie, et plus de 1.000 à Malte.

Lettre au Secrétaire d’Etat à la Défense du Royaume-Uni

Lettre au Ministre de la Défense de l’Espagne

Lettre au Secrétaire général adjoint délégué, Division des opérations de l’OTAN

Résolution 1872 (2012) de l’APCE

Rapport intégral de Tineke Strik (PDF)

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by | 30 Mar 2012 · 04:16

PACE Migration Committee Report: Lessons Learned and Recommendations for States

The PACE Migration Committee report, “Lives lost in the Mediterranean Sea: who is responsible?”, released yesterday, is a must read for anyone concerned with this topic.  In addition to documenting the events of March-April 2011 and the resulting deaths of 63 persons, the report makes a series of recommendations as to how search and rescue should be carried out in the future:

“13. While the [rapporteur’s] investigation focused on a single incident, the lessons learnt have implications for the way in which search and rescue should be carried out in the future. As a consequence, the [Parliamentary] Assembly recommends that member States:

13.1. fill the vacuum of responsibility for an SAR zone left by a State which cannot or does not exercise its responsibility for search and rescue, such as was the case for Libya. This may require amending the International Maritime Search and Rescue Convention (SAR Convention). In the case in question, two Maritime Rescue Coordination Centres (Rome and Malta) were aware that a boat was in distress, but neither took the responsibility to start a search and rescue operation. Rome, being the first MRCC informed of the distress situation, had a greater responsibility to ensure the boat’s rescue;

13.2. ensure that there are clear and simple guidelines, which are then followed, on what amounts to a distress signal, so as to avoid any confusion over the obligation to launch a search and rescue operation for a boat in distress;

13.3. avoid differing interpretations of what constitutes a vessel in distress, in particular as concerns overloaded, unseaworthy boats, even if under propulsion, and render appropriate assistance to such vessels. Whenever safety requires that a vessel be assisted, this should lead to rescue actions;

13.4. tackle the reasons why commercial vessels fail to go to the rescue of boats in distress. This will require dealing with:

13.4.1. the economic consequences for the rescuing vessel and its owners, and the issue of compensation;

13.4.2. the disagreement between Malta and Italy as to whether disembarkation should be to the nearest safe port or to a port within the country of the SAR zone. The International Maritime Organization should be urged to find a solution to the matter and step up its efforts towards a harmonised interpretation and application of international maritime law;

13.4.3. the fear of criminalisation (trafficking or aiding and abetting irregular migration) by those who go to the rescue of boats carrying irregular migrants, asylum seekers and refugees;

13.4.4. legislation to criminalise private shipmasters who fail to comply with their duty under the law of the sea, as is already the case in certain Council of Europe member States;

13.5. ensure that, in accordance with the Hirsi v. Italy judgment of the European Court of Human Rights, after the rescue operation, people are not pushed back to a country where they risk being treated in violation of Article 3 of the European Convention on Human Rights;

13.6. tackle the issue of responsibility sharing, particularly in the context of rescue services, disembarkation, administration of asylum requests, setting up reception facilities and relocation and resettlement, with a view to developing a binding European Union protocol for the Mediterranean region. The heavy burden placed on frontline States leads to a problem of saturation and a reluctance to take responsibility;

13.7. respect the families’ right to know the fate of those who lose their lives at sea by improving identity data collection and sharing. This could include the setting up of a DNA file of the remains of those retrieved from the Mediterranean Sea. In this context, the ongoing work of the International Committee of the Red Cross (ICRC) and other organisations should be acknowledged and supported;

13.8. follow up Assembly Resolution 1821 (2011) on the interception and rescue at sea of asylum seekers, refugees and irregular migrants;

13.9. ensure that the lack of communication and understanding between the Rome Maritime Rescue Coordination Centre and NATO, which led to no one taking responsibility for the boat, is not reproduced in future NATO operations, and ensure that NATO introduces a mechanism to co-ordinate its assets in SAR operations in direct contact with relevant Maritime Rescue Coordination Centres wherever possible.”

Click on the following links for:

PACE Press Statement

Full report – provisional version (PDF)

Last letter from NATO (PDF)

Graphic: map showing reconstruction of the voyage and other annexes (PDF)

“Boat people” web file

Video recording of press conference 

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by | 29 Mar 2012 · 14:20

PACE Migration Committee Approves Report on “Lives Lost in the Mediterranean” and Calls on NATO and Responsible States to Conduct Full Inquiries into the Failures to Rescue

The report, “Lives lost in the Mediterranean Sea: who is responsible?”, was adopted this morning by the PACE Committee on Committee on Migration, Refugees and Displaced Persons.  It will next be debated in a plenary session of the Parliamentary Assembly, probably on 24 April.

Here is the full text of the PACE press statement and links to the provisional version of the report:

“Strasbourg, 29.03.2012 – A failure to react to distress calls and a ‘vacuum of responsibility’ for search and rescue are among a ‘catalogue of failures’ which led to the deaths of 63 people fleeing the conflict in Libya by sea during a tragic 15-day voyage in March 2011, according to a committee of the Parliamentary Assembly of the Council of Europe (PACE).

A report by Tineke Strik (Netherlands, SOC), adopted this morning in Brussels by PACE’s Committee on Migration, Refugees and Displaced Persons, says Italian search and rescue authorities, NATO, the flag states of naval vessels in the area, the Libyan authorities and reckless smugglers are among those who share responsibility.

The boat, which left Tripoli with 72 people on board a week after the beginning of international air strikes on Libya, washed up on the Libyan coast 15 days later with only nine people still alive – even though distress messages giving its last known position were regularly broadcast to all ships in the area.

NATO ‘failed to react to distress calls’ in a military zone under its control, the committee says, pointing out that the Spanish Navy frigate Méndez Núñez, under NATO command, was reported to be only 11 miles away, although the Spanish authorities dispute the distance. An Italian military vessel, the Borsini, was 37 nautical miles away. Both vessels can carry a helicopter.

The committee says it finds ‘credible’ the testimonies of the nine survivors of the incident, who said that a military helicopter dropped water and biscuits to them and indicated it would return, but never did. On the tenth day of the voyage – with half the passengers dead – they said ‘a large military vessel’ approached, close enough for them to see crew with binoculars, but sailed away without effecting a rescue.

‘Many opportunities of saving the lives of the persons on board were lost,’ the committee concludes. It demands that NATO conduct an inquiry into the incident and provide comprehensive answers to outstanding questions, and calls on the European Parliament to seek further information, including satellite imagery. National parliaments of the states concerned should also carry out inquiries. There should also be an overhaul of maritime regulations to fill the ‘vacuum of responsibility’ when a state cannot carry out search and rescue in its assigned zone, and to deal with the dispute between Italy and Malta over which country should be responsible for disembarkation of those rescued at sea.

The report is due to be debated at the April plenary session of the Parliamentary Assembly, probably on Tuesday 24 April.

Full report – provisional version (PDF)

Last letter from NATO (PDF)

Graphic: map showing reconstruction of the voyage and other annexes (PDF)

“Boat people” web file

Video recording of press conference ”

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by | 28 Mar 2012 · 21:23

The Guardian’s Advance Coverage of PACE Report – “Lives Lost in the Mediterranean Sea: Who is Responsible?”

The Guardian has reviewed a copy of the report prepared by Ms. Tinke Strik which will be presented to the PACE Committee on Migration, Refugees and Displaced Persons on Thursday, 29 March.  The Guardian describes the report as “a damning official report” that documents “[a] catalogue of failures by Nato warships and European coastguards [which] led to the deaths of dozens of migrants left adrift at sea [ ].”

Click on the following links for the Guardian’s articles:

Migrants left to die after catalogue of failures, says report into boat tragedy

How a migrant boat was left adrift on the Mediterranean

Drastic action needed to prevent more migrants dying in boat tragedies

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by | 27 Mar 2012 · 04:40

Human Rights Organisations Renew Call for NATO and Governments to Release Information Regarding Migrant Deaths in Mediterranean Sea

Human Rights Watch, the International Federation for Human Rights (FIDH), and 9 other human rights groups on 26 March sent letters to NATO and the defence ministers of France, Italy, Spain, Canada, the UK, and the US calling for the release of information to clarify events surrounding the deaths of 63 migrants who died approximately one year ago after their disabled boat drifted for days within an area that was heavily patrolled by NATO warships.  The renewed call for release of information is being made in connection with the scheduled release on 29 March of the PACE Migration Committee Report, “Lives lost in the Mediterranean Sea: who is responsible?”  Representatives of HRW and FIDH will participate in a press conference on 29 March, 2 p.m. CET, with Ms. Tineke Strik (Netherlands, SOC), when Ms. Strik releases the report.

Click on the following links for copies of the letters sent to: NATO, France, Italy, Spain, United Kingdom, and the United States. (EN)

Click here for the 26 March PACE press release and information regarding 29 March press conference.

Click here for the 26 March HRW press release.

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by | 27 Mar 2012 · 03:39

PACE Report on “Lives Lost in the Mediterranean Sea: Who is Responsible?” Scheduled for Release on 29 March

The draft report prepared by Tineke Strik (Netherlands, SOC), “Lives lost in the Mediterranean Sea: who is responsible?”, will be considered on 29 March in a closed session by the PACE Committee on Migration, Refugees and Displaced Persons.

If the draft report receives committee approval it will be released to the public by Ms. Strik at a press conference scheduled for 2 p.m. CET.  Representatives from HRW and FIDH will participate in the press conference.  (Click here for HRW press release.) The report will be next be considered during “plenary debate by the 318-member Parliamentary Assembly, probably on Tuesday 24 April during its spring session in Strasbourg.”

Full text of PACE press release:  “Strasbourg, 26.03.2012 – Tineke Strik (Netherlands, SOC), rapporteur for the Parliamentary Assembly of the Council of Europe (PACE) on ‘Lives lost in the Mediterranean Sea: who is responsible?’ will present her draft report at a press conference in Brussels on Thursday 29th March 2012.

The report is the result of a nine-month inquiry, launched at the request of 34 Assembly members, following a March 2011 incident in which it is alleged that 63 people attempting to flee the conflict in Libya died at sea after their appeals for rescue were ignored, including by armed forces operating in the area.

Ahead of her presentation, Ms Strik commented: ‘Since the beginning of 2011 at least 1,500 people are known to have perished in the Mediterranean trying to reach European soil – despite this being one of the busiest and best-monitored seas in the world. My inquiry has focused on one particularly tragic incident, in which 63 people died, to try to establish who bears responsibility for their deaths. I have been deeply shocked by what I have learned.’

As part of her inquiry, Tineke Strik spoke at length with survivors, search and rescue authorities from Italy and Malta, as well as NATO and EU officials, and put detailed written questions to a number of governments, including those with vessels with aircraft-carrying facilities in the area at the time. She also obtained a reconstruction of the voyage using the science of forensic oceanography.

The same day, prior to the press conference, Ms Strik will present her report to PACE’s Committee on Migration, Refugees and Displaced Persons, meeting in closed session. If approved by the committee, the report will go forward for plenary debate by the 318-member Parliamentary Assembly, probably on Tuesday 24 April during its spring session in Strasbourg.

* * *

Notes for editors

Press conference

The press conference will take place at 2 p.m. on Thursday 29th March at the Council of Europe office in Brussels (Avenue des Nerviens 85 / Nerviërslaan 85, B-1040 Brussels). The rapporteur will be joined by representatives of the International Federation for Human Rights (FIDH) and Human Rights Watch. A video recording of the press conference will be made available at the link above, and on the PACE website, as soon as possible after it ends.

Copies of the report

If approved by the committee, the full text of the report will be posted on the Assembly’s website at around 2 p.m. Central European Time.

Contacts

Angus Macdonald, PACE Communication Division, mobile +33 (0)6 30 49 68 20.
Andrew Cutting, Council of Europe Office in Brussels, mobile +32 (0)485 21 72 02.

Motion: the request for an inquiry

PACE President’s statement, May 2011

Web file and timeline: Europe’s boat people

Video recording of press conference (when available) ”

Click here for PACE Press Release of 26 March.

Click here for Committee meeting agenda.

Click here for HRW Press Release of 26 March.

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by | 27 Feb 2012 · 04:45

Hirsi v. Italy: Prohibition of Collective Expulsion Extends to Extra-Territorial Actions

Article 4 of Protocol No. 4 of the ECHR reads in its entirety as follows:  “Collective expulsion of aliens is prohibited.”

The provision was first defined by the European Commission of Human Rights in 1975 in Henning Becker v. Denmark (no. 7011/75, decision of 3 October 1975).  The Commission defined the “‘collective expulsion of aliens’ as being ‘any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group’.” [para. 166]

The Court has only once previously found a violation of the collective expulsion prohibition and that was in Čonka v. Belgium (no. 51564/99, ECHR 2002-I). [para. 183]

The majority of collective expulsion cases previously considered by the Commission and the Court have “involved persons who were on the territory at issue.”  [para. 167]  One extra-territorial exception involved the case of Xhavara and Others v. Italy and Albania ((dec), no. 39473/98, 11 January 2001) involving “Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people….”  The Court however “rejected the complaint on the ground of incompatibility ratione personae, as [the applicants challenged an Italian law which] had not been applied to their case, and [the Court therefore] did not rule on the [extra-territorial] applicability of Article 4 of Protocol No. 4…”  [para. 168]

In Hirsi the Court “for the first time” considered the question of whether the prohibition of collective expulsion “applies to a case involving the removal of aliens to a third State carried out outside national territory.”  [para. 169]

Italy argued that the prohibition “came into play only in the event of the expulsion of persons [already] on the territory of a State or who had crossed the national border illegally” and therefore did not apply to the Hirsi applicants who had not entered on to Italian territory. According to Italy, “the measure at issue was a refusal to authorise entry into national territory rather than ‘expulsion’.” [para. 160]

The Court rejected Italy’s interpretation:

“173.  The Court does not share the Government’s opinion on this point. It notes firstly that while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extra-territorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of ‘territory’, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.

[***]

175.  It remains to be seen, however, whether [an extra-territorial] application [of the prohibition] is justified. To reply to that question, account must be taken of the purpose and meaning of the provision at issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions. [***] Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; [***]).

176.  A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control, in so far as they constitute tools for States to combat irregular immigration.

The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.

177.  The Court has already found that, according to the established case-law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.

178.  It is therefore clear that, while the notion of ‘jurisdiction’ is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).

[***]

180.  Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.

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185.  In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.

That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.

186.  Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4. Accordingly, there has been a violation of that Article.”

Click here (EN) and here (FR) for the Grand Chamber’s Judgment.

Click here (EJIL: Talk!), here (ECHR Blog), here (UK Human Rights Blog), and here (Open Society Blog)  for more analysis of the Judgment.

Click here for my previous post “Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1.”

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