Category Archives: Council of Europe

by | 26 Feb 2012 · 22:49

Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1

The Court found that ECHR Article 1 jurisdiction existed because “the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities” from the point in time when the applicants’ boats were intercepted and the applicants were transferred to the Italian ships up until the point when the applicants were turned over to Libyan authorities in Tripoli. [para. 81]

The Court noted that the jurisdiction of a State is essentially territorial and therefore “the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç, decision cited above, § 67; and Ilaşcu and Others, cited above, § 314).” [para. 72].

“73.  [***] In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, 7 July 201; Medvedyev and Others, cited above, § 67).

74.  Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be ‘divided and tailored’ (see Al-Skeini, cited above, § 136 and 137; compare Banković, cited above, § 75).”

The Court rejected Italy’s jurisdictional arguments.  While Italy acknowledged that the events in question took place on board its military ships, Italy asserted that due to the nature of the operation, the military ships and their personnel never exercised “absolute and exclusive control” over the applicants. [para. 64] Italy argued that its actions constituted a “rescue on the high seas of persons in distress” and therefore “could in no circumstances be described as a maritime police operation.” [para. 65] Italy argued that the UN Convention on the Law of the Sea obligated it to rescue persons in distress and that carrying out its obligations under the Convention on the Law of the Sea  “did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.” [para. 65]

The Court concluded that Italy “[could not] circumvent its ‘jurisdiction’ under the [ECHR] by describing the events at issue as rescue operations on the high seas.”   The Court took note of the events in the case of Medvedyev and Others where French military personnel intercepted a vessel flying the flag of a third State and took control of crew members who remained on board the intercepted vessel. [para. 80]

“81.  The Court observes that in the [Hirsi] case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.

82.  Accordingly, the events giving rise to the alleged violations fall within Italy’s ‘jurisdiction’ within the meaning of Article 1 of the Convention.”

In some respects, the Article 1 jurisdictional issue was easier to address because the applicants were removed from their vessels and taken on board the Italian military vessels.  The Court noted that under “relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying” [para. 77] and further that this principle is contained within the Italian Navigation Code. [para. 78]  The Court accordingly found that de jure control had been exercised over the applicants after they were transferred from their boats to the Italian ships.

It seems clear that Italy intends in the future to resume some sort of bi-lateral immigration control measures with Libya.  It remains to be seen whether Italy will try to implement some modified form of the push-back practice that has now been condemned by the Court.  One of the provisions in one of the bi-lateral agreements between Italy and Libya mentioned in the Hirsi judgment provides for the deployment of

“maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.”  Additional Protocol of 4 February 2009 [para. 19]

The question arises whether Italy could evade jurisdiction and circumvent its Convention obligations by lessening its control over a new push-back scheme.  How would the Court have viewed the push-back events had they occurred, as the operational protocol above contemplates, “in … international waters under the supervision of Libyan personnel and with participation by Italian crew members”?

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.

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by | 26 Feb 2012 · 07:03

Oxford Migration Law Discussion Group Seminar: A discussion on Hirsi v Italy (Oxford, 27 Feb)

“The Migration Law Discussion Group at the University of Oxford is holding a meeting Monday, 27 Feb. 2012, to discuss the Grand Chamber judgment delivered by the Strasbourg Court on the case of Hirsi v Italy. The session will start with a presentation by UNHCR (third party intervener in the case) and provide ample opportunity for discussion afterwards.  The details are as follows:  MLDG SEMINAR: ‘How far does non-refoulement go? A discussion on Hirsi v Italy’;  SPEAKER: Madeline Garlick, Head of Unit, Policy and Legal Support, UNHCR Europe;   ABSTRACT:  The European Court of Human Rights, on 23 February 2012, has handed down its judgment in the matter of Hirsi & Ors v Italy. This case, brought to the court by a group of migrants intercepted at sea and returned to Libya by Italy in 2009, raises important questions around the scope and application of the principle of non-refoulement. This includes notably the extent of States’ protection obligations when exercising jurisdiction over individuals outside their territory. The decision is ground-breaking and should lead to a dramatic change in the way border controls are conducted in Europe, affording protection to migrants and refugees in an unprecedented way.  The speaker, who represented UNHCR before the Court in the case, will examine key points of interest in the judgment and convey the perspective of UNHCR as a third party intervener. Participants at the event will be invited to discuss the judgment and its wider implications.

DATE: Monday, 27 February 2012
VENUE: Seminar Room 2, Refugee Studies Centre – Queen Elizabeth House, 3 Mansfield Rd – Oxford OX1 3TB
TIME: 5h30 pm”

(From Migration and Law Network listserve.)

Click here for more information.

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by | 23 Feb 2012 · 16:59

ECtHR Grand Chamber: Italy’s Maritime Push-Back Practice Amounts to Collective Expulsion and Exposes Migrants to Risks of Torture and Ill-Treatment

The Grand Chamber of the European Court of Human Rights issued a unanimous judgment earlier today in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) holding that “There had been two violations of [ECHR] Article 3 (prohibition of inhuman or degrading treatment) … because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea; There had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions); There had been a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 and with Article 4 of Protocol No.4.”

More to follow once I have had a chance to closely read the 80+ page judgment.

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

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement.

Excerpt from the Registry Press Release:

“Decision of the Court

The question of jurisdiction under Article 1

Only in exceptional cases did the Court accept that acts of the member States performed, or producing effects, outside their territories could constitute an exercise of jurisdiction by them. Whenever the State, through its agents operating outside its territory, exercised control and authority over an individual, and thus its jurisdiction, the State was under an obligation to secure the rights under the Convention to that individual.

Italy did not dispute that the ships onto which the applicants had been embarked had been fully within Italian jurisdiction. The Court reiterated the principle of international law, enshrined in the Italian Navigation Code, that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. The Court could not accept the Government’s description of the operation as a “rescue operation on the high seas” or that Italy had exercised allegedly minimal control over the applicants. The events had taken place entirely on board ships of the Italian armed forces, the crews of which had been composed exclusively of Italian military personnel. In the period between boarding the ships and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. Accordingly, the events giving rise to the alleged violations had fallen within Italy’s jurisdiction within the meaning of Article 1.

Article 3 – Risk of suffering ill-treatment in Libya

The Court was aware of the pressure on States resulting from the increasing influx of migrants, which was a particularly complex phenomenon when occurring by sea, but observed that this could not absolve a State of its obligation not to remove any person who would run the risk of being subjected to treatment prohibited under Article 3 in the receiving country. Noting that the situation in Libya had deteriorated after April 2010, the Court decided to confine its examination of the case to the situation prevailing in Libya at the material time. It noted that the disturbing conclusions of numerous organisations (2)  regarding the treatment of clandestine immigrants were corroborated by the report of the Committee for the Prevention of Torture (CPT) of 2010 (3).

Irregular migrants and asylum seekers, between whom no distinction was made, had been systematically arrested and detained in conditions described as inhuman by observers (4), who reported cases of torture among others. Clandestine migrants had been at risk of being returned to their countries of origin at any time and, if they managed to regain their freedom, had been subjected to particularly precarious living conditions and exposed to racist acts. The Italian Government had maintained that Libya was a safe destination for migrants and that Libya complied with its international commitments as regards asylum and the protection of refugees. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices contrary to the principles of the Convention. Furthermore, Italy could not evade its responsibility under the Convention by referring to its subsequent obligations arising out of bilateral agreements with Libya. The Court noted, further, that the Office of the UNHCR in Tripoli had never been recognised by the Libyan Government. That situation had been well-known and easy to verify at the relevant time. The Court therefore considered that when the applicants had been removed, the Italian authorities had known or should have known that they would be exposed to treatment in breach of the Convention. Furthermore, the fact the applicants had not expressly applied for asylum had not exempted Italy from its responsibility. The Court reiterated the obligations on States arising out of international refugee law, including the “non-refoulement principle” also enshrined in the Charter of Fundamental Rights of the European Union. The Court attached particular weight in this regard to a letter of 15 May 2009 from Mr Jacques Barrot, Vice-President of the European Commission, in which he reiterated the importance of that principle (5).

The Court, considering that the fact that a large number of irregular immigrants in Libya had found themselves in the same situation as the applicants did not make the risk concerned any less individual, concluded that by transferring the applicants to Libya the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by the Convention. The Court thus concluded that there had been a violation of Article 3.

Risk of suffering ill-treatment in the applicants’ country of origin

The indirect removal of an alien left the State’s responsibility intact, and that State was required to ensure that the intermediary country offered sufficient guarantees against arbitrary refoulement particularly where that State was not a party to the Convention. The Court would determine whether there had been such guarantees in this case. All the information in the Court’s possession showed prima facie that there was widespread insecurity in Somalia – see the Court’s conclusions in the case of Sufi and Elmi v. the United Kingdom (6) – and in Eritrea – individuals faced being tortured and detained in inhuman conditions merely for having left the country irregularly. The applicants could therefore arguably claim that their repatriation would breach Article 3 of the Convention. The Court observed that Libya had not ratified the Geneva Convention and noted the absence of any form of asylum and protection procedure for refugees in the country. The Court could not therefore subscribe to the Government’s argument that the UNHCR’s activities in Tripoli represented a guarantee against arbitrary repatriation. Moreover, Human Rights Watch and the UNHCR had denounced several forced returns of asylum seekers and refugees to highrisk countries. Thus, the fact that some of the applicants had obtained refugee status in Libya, far from being reassuring, might actually have increased their vulnerability.

The Court concluded that when the applicants were transferred to Libya, the Italian authorities had known or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their countries of origin. That transfer accordingly violated Article 3.

Article 4 of Protocol No.4 – Admissibility of the complaint

The Court was required, for the first time, to examine whether Article 4 of Protocol No. 4 applied to a case involving the removal of aliens to a third State carried out outside national territory. It had to ascertain whether the transfer of the applicants to Libya constituted a collective expulsion within the meaning of Article 4 of Protocol No. 4. The Court observed that neither the text nor the travaux préparatoires of the Convention precluded the extraterritorial application of that provision. Furthermore, were Article 4 of Protocol No. 4 to apply only to collective expulsions from the national territory of the member States, a significant component of contemporary migratory patterns would not fall within the ambit of that provision and 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. The notion of expulsion, like the concept of “jurisdiction”, was clearly principally territorial. Where, however, the Court found that a State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. The Court also reiterated that the special nature of the maritime environment did not make it an area outside the law. It concluded that the complaint was admissible.

Merits of the complaint

The Court observed that, to date, the Čonka v. Belgium (7) case was the only one in which it had found a violation of Article 4 of Protocol No. 4. It reiterated that the fact that a number of aliens were subject to similar decisions did not in itself lead to the conclusion that there was a collective expulsion if the case of each person concerned had been duly examined. In the present case the transfer of the applicants to Libya had been carried out without any examination of each individual situation. No identification procedure had been carried out by the Italian authorities, which had merely embarked the applicants and then disembarked them in Libya. The Court concluded that the removal of the applicants had been of a collective nature, in breach of Article 4 of Protocol No. 4.

Article 13 taken in conjunction with Article 3 and with Article 4 of Protocol No.4

The Italian Government acknowledged it had not been possible to assess the applicants’ personal circumstances on board the military ships. The applicants alleged that they had been given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and had not informed them as to the procedure to be followed to avoid being returned to Libya. That version of events, though disputed by the Government, was corroborated by a large number of witness statements gathered by the UNHCR, the CPT and Human Rights Watch. The applicants had thus been unable to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.

Even if a remedy under the criminal law against the military personnel on board the ship were accessible in practice, this did not satisfy the criterion of suspensive effect. The Court reiterated the requirement flowing from Article 13 that execution of a measure be stayed where the measure was contrary to the Convention and had potentially irreversible effects. Having regard to the irreversible consequences if the risk of torture or ill-treatment materialised, the suspensive effect of an appeal should apply where an alien was returned to a State where there were serious grounds for believing that he or she faced a risk of that nature. The Court concluded that there had been a violation of Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4.

Article 41

Under Article 41 (just satisfaction), the Court held that Italy was to pay each applicant 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,575.74 to the applicants jointly in respect of costs and expenses.

2 International bodies and non-governmental organisations; see paragraphs 37 – 41 of the judgment.

3 Report of 28 April 2010 of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe after a visit to Italy.

4 The UNHCR, Human Rights Watch and Amnesty International.

5 Paragraph 34 of the judgment.

6 Judgment of 28.06.2011.

7 Judgment of 05.02.2002.”

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

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement

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by | 15 Feb 2012 · 16:20

ECtHR Grand Chamber to Deliver Judgement in Hirsi v Italy on 23 February

The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.   On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber.  The argument before the Grand Chamber occurred on 22 June 2011.

Today’s statement from the CoE web site:

“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya.  The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.

Principal facts

The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.

The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.

At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.

Complaint

The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.

They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.

The application was lodged with the European Court of Human Rights on 26 May 2009.

On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.

The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):

– the Office of the United Nations High Commissioner for Refugees,

– the Office of the United Nations High Commissioner for Human Rights,

– the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),

– the non-governmental organisation Human Rights Watch, and

– the Columbia Law School Human Rights Clinic.”

Click here for CoE Statement.

Click here for Press Statement from ECtHR.

Click here for previous post on the argument before the Grand Chamber.

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by | 12 Feb 2012 · 06:38

Mare Deserto: RSI documentary about the failure to rescue and subsequent deaths of 60 migrants in the Mediterranean in March 2011

RSI LA1, the Swiss Italian-language television network, last month broadcasted a one hour documentary,  Mare deserto , produced by Emiliano Bos and Paul Nicol.  The documentary is in Italian.  It investigates the events that occurred between 25 March and 10 April 2011 when a disabled migrant boat attempting to travel from Libya to Italy drifted for days during which time approximately 60 persons died.  Survivors from the migrant boat reported that at various times military ships and helicopters ignored their requests for assistance.  The producers located and interviewed 9 of the known survivors in Italy, Tunisia and Norway.

Click here or here for a link to the documentary.  (IT)

Click here and here for some of my previous posts on the incident and the ongoing PACE investigation into the incident.

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by | 19 Dec 2011 · 06:04

PACE Rapporteur Completes Malta Trip

Ms Tineke Strik, the PACE Migration Committee rapporteur heading up the investigation into the deaths of boat people in the Mediterranean, completed a two day fact-finding visit to Malta.  From the Times of Malta reporting:  Ms Strik said that the “visit to Malta was important for my inquiry into who is responsible for lives lost in the Mediterranean Sea, and enabled me to piece together another part of the puzzle in the case of the ‘left-to-die boat’. … Nonetheless, the puzzle remains incomplete. Gaps remain and important questions still need to be answered. As time is precious in this kind of inquiry, I very much count on national authorities, NATO and the EU to provide me swiftly with the information I have requested.  … [T]he on-going dispute between Italy and Malta on their respective responsibility with regard to the disembarkation of boat people rescued at sea remains a cause of serious concern.”

Click here and here for articles.

 

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by | 15 Dec 2011 · 06:08

PACE Rapporteur in Malta

Ms Tineke Strik, the PACE Migration Committee’s rapporteur who is heading up the investigation into the deaths of boat people in the Mediterranean, is in Malta today and tomorrow in connection with the ongoing inquiry.  PACE Press Statement:  Ms. Strik “will make a fact-finding visit to Malta from 15 to 16 December 2011.  During her visit, the rapporteur will meet refugees who arrived from Libya after January 2011 to gather testimony on their experiences, and will meet officials from the Maltese armed forces who are involved in organising rescues. She will also meet representatives of NGOs and European and UN officials dealing with refugee matters on the island, and the Maltese delegation to PACE. … Her report is expected in the spring of 2012.”

Click here for press statement.
 

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by | 12 Dec 2011 · 05:52

ECRE Interview with Tineke Strik Regarding PACE Investigation into Migrants Deaths in Mediterranean

ECRE last week published an interview with Ms Tineke Strike regarding the PACE Migration Committee’s ongoing investigation into the almost 2000 migrant deaths that have occurred in the central Mediterranean this year.  The Committee is focusing in particular on the incident that occurred in late March 2011 when unknown ship(s) and aircraft observed and then failed to rescue a disabled migrant boat.  Approximately 60 persons subsequently died.

Excerpts from the ECRE interview:

“[***]  What are the main findings of your report on the death at the Mediterranean so far?

We have spoken with survivors and with the priest who received the request for assistance from the boat in distress, Italian border guards, and the Italian refugee agency, as well as the Italian Refugee Council (CIR), a Member of ECRE. We also talked to different people in Brussels, including NATO, the ambassador of the Council of Europe, Amnesty and several MEPs. Today, during the PACE hearing on November 30 in Paris, we had a discussion with a number of experts in international law, Frontex, UNHCR and ICRC. All in all a lot of information has been gathered.

We have already sent requests for information to find out via satellite maps and logs if there were boats near the distressed boat Once we know under which flags these boats were sailing, we will be able to track which governments might have been responsible and ask them whether they knew that the boat asking for help was in danger or not and how they acted upon that information.

We are actually still waiting for information for this information. It is unfortunate that it takes time to get this information but we are trying to get hold of it through different channels. We have approached High Representative Ashton and asked for her consent to provide us with information from the European Satellite Centre. We have already used this kind of information at the Council of Europe, for example to detect the illegal detention centres that the CIA was using. We therefore hope that Ashton once again will cooperate.

We also asked NATO to provide us with information and have asked all the countries who took part in the NATO action in Libya and who had ships in that region during that period to give us data on where their boats were and when. NATO has promised to request the Member States to provide us with this information, also if these boats were not under the command of NATO. If this does not succeed, we still have our own national parliamentarians that could push their governments in their own country if it is necessary to gather the information.

If countries were involved they might not want to admit that, which makes my position difficult. I am not a judge and I don’t have enforcement powers so I’m partly dependent on the cooperation of various parties.  But I think all parties can benefit from transparency on what has happened, in order to avoid such tragedies in the future.

[***]

How do you think the EU has responded to the turmoil and war in North Africa and, in particular, the following displacement of people in the region and the arrival of some of them to Europe?

In my report following the protests in North Africa, we see that by far the largest part of the people who have fled Libya went to Tunisia and Egypt. There was a lot of fuss in the EU about the 25,000 who eventually fled to Italy. Tunisia took half million, Egypt took a half a million which shows how big the contrast with the EU was, especially considering that Member States were reluctant to resettle refugees from camps in Tunisia. This while Tunisia and Egypt were in a very vulnerable position in the post-revolutionary period. If we really want to help and strengthen stability in the region, we must show these states that they are not alone. These countries generously opened their borders, they understood the situation of the people there and to a great extent we stood aside and just watched.

Then we failed to help out Italy and Malta, especially when countries like France and Denmark wanted to close their borders. This shows exactly how much we are still not politically ready for a common asylum system. We provide beautiful public statements but when it comes down to it, Member States do not want to lose their sovereignty or be troubled by developments elsewhere. I do not think you can have both: either you have a joint system and you show solidarity, or you close all the borders and reinvent the wheel.

Common policies go hand in hand with solidarity and in fact we should look beyond the European borders.  What you see now is that border controls at the external borders of the EU continue to shift to North Africa and sometimes even further. One cannot claim that our responsibilities only begin when people have reached our territory. I was therefore very disappointed when the European Commission replied to a question by MEP Hélène Flautre on this incident saying that the boat was in Libyan waters and therefore they had no power to get involved. If certain acts like push backs at high sea or bilateral agreements with unsafe third countries such as Libya, lead to death or inhumane treatment, EU member states or other countries of the Council of Europe are accountable for a violation of the European Convention on Human Rights. In that sense I have high expectations of the decision of the ECHR in the case of Hirsi and others v. Italy.

[***]

What do you think the impact of your work and the investigation will be?

I hope the report will raise the awareness of the international obligations and also the awareness of the importance of avoiding such tragedies. It is important that violating the obligation to rescue does not remain unmentioned or lead to impunity. If we succeed in proving which actors were wrong. Member States will be more careful and there will be more pressure to cooperate and share the responsibilities, and to establish practical and binding solutions. Being a parliamentary assembly of national parliamentarians, I also hope that the discussion will also take place in Member States. I find it really outrageous that such a tragedy can occur so close to our borders and that we have been so silent about it.

[***]”

Click here for full interview.

Click here for my last post on this topic.

 

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by | 09 Dec 2011 · 04:34

Update Regarding PACE Investigation into Migrant Deaths in the Mediterranean

I have sought additional information from NATO and PACE regarding the 29 November hearing held in Paris by the PACE Migration Committee regarding the deaths of boat people in the Mediterranean.  I was informed by a PACE official that the minutes of the 29 November hearing will be released during or after the Committee’s next scheduled meeting which will take place in late January 2012.

In my previous post on this topic I incorrectly said that NATO officials attended the 29 November hearing.  Instead Ms Strik, the Committee’s rapporteur, met with a senior NATO official in Brussels on 28 November.  A NATO official informed me that “during the meeting [with Ms Strik], NATO offered to look into new details of the 28 March 2011 incident which were provided to NATO by Ms Strik. This process is ongoing and we will reply to the Council of Europe in due course.”

The NATO official reiterated to me that NATO ships were “fully aware of their responsibilities” to respond to vessels in distress and noted that during Operation Unified Protector “NATO ships have directly assisted in the rescue of more than 600 people in distress at sea.”  The official provided information about two incidents which have previously been reported on:

  • “[O]n 26 March 2011, NATO ships responded to information that two migrant ships with over 500 people on board were in distress, which were then provided direct assistance by the Italian authorities. That included a NATO ship using its helicopter to airlift two women and a newborn child to medical help”; and
  • “On 10 July 2011, a NATO ship responded to a vessel in distress approximately 75 miles off the coast of Libya. The NATO vessel provided medical support, food and offered mechanical assistance to the distressed migrants. In response to a deterioration of the humanitarian situation onboard, the 114 migrants were transferred onto the NATO ship in accordance with the Safety of Life at Sea (SOLAS) protocol and delivered to safety in Tunisia.”

The reference to the 26 March incident presumably relates in part to the Canadian warship, HMCS Charlottetown, which made contact with a disabled migrant boat carrying over 250 migrants on 25 March.  The Charlottetown provided food, waters, and repairs to the migrant boat and escorted it until 26 March when the Italian Coast Guard arrived on scene.  As far as I can tell from news reports from the time of this incident, there was only one migrant boat involved.   NATO’s current statement indicates there was a second migrant boat encountered by NATO at this time.

Click here and here for my previous posts on the March 2011 incident.

The 10 July incident relates to the rescue of over 100 migrants by the Spanish Navy frigate, the Almirante Juan de Borbón.  The rescued migrants remained onboard the Spanish frigate for six days after Malta and Italy refused to permit the NATO ship to enter port to disembark the rescued migrants.  The migrants were transferred to a Tunisian navy ship on 16 July and presumably then taken to Tunisia.

Click here and here for my previous posts on the July 2011 incident.

Neither of these two incidents relates to the events that occurred between 25 March and 10 April 2011 when a disabled migrant boat drifted for days during which time approximately 60 persons died.  Survivors from the migrant boat reported that at various times military ships and helicopters ignored their requests for assistance.  The Guardian reported extensively on this subject and the PACE Committee has been seeking information from NATO about this particular incident.

Click here and here for Guardian articles.

Click here for my last post of the PACE 29 Nov. hearing.

HMCS Charlottetown and migrant boat 25 March 2011.

Photo Credit: Lt(N) Michael McWhinnie, Department of National Defence and Canadian Forces

Spanish frigate Almirante Juan de Borbón rescuing migrant boat on 10 July 2011 and transferring migrants to Tunisian navy vessel on 16 July 2011.

Photo Credit: Ministerio de Defensa de España (mde.es)

Photo Credit: Ministerio de Defensa de España (mde.es)

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by | 01 Dec 2011 · 06:42

NATO Reportedly Agrees to Provide Additional Information to PACE Regarding Migrant Deaths in the Mediterranean

The PACE Committee on Migration, Refugees and Population, in connection with the preparation of a report by Ms Tineke Strik (Netherlands, SOC) on the deaths of boat people who have died in the Mediterranean, conducted a hearing in Paris on 29 November.  NATO officials who met with Ms Strik in Brussels before attended the hearing reportedly agreed to provide additional information, which might include satellite imagery, to the PACE Committee.

From PACE Press Statement, 30 November 2011:  “‘With 1971 boatpeople having perished in the Mediterranean Sea while trying to reach European soil from North Africa, the year 2011 sets a sad record as the deadliest year for boatpeople,’ PACE rapporteur Tineke Strik (Netherlands, SOC) said at the end of a hearing on this issue, organised by the Parliamentary Assembly of the Council of Europe (PACE) Migration Committee.  ‘Never before the Mediterranean Sea has been as closely monitored as this year because of the war in Libya and still more boat people than ever perished or disappeared,’ the rapporteur added.  ‘Is there a common understanding of a “distress situation”? Is it clear which legal framework is applicable and by whom? Do all ships, even warships, have to proceed with rescue operations even if they are situated beyond established search and rescue zones? Where does legal responsibility start and where does political responsibility end? These are some of the issues we are currently trying to clarify,’ she said.  Mrs Strik’s report will focus on an incident reported in March this year, during which 63 boat people escaping from Libya died after their appeals for rescue had allegedly been ignored. ‘The testimonies of survivors of this incident are coherent, but we have to continue to collect more data and information on who was when and where in the area and we now expect Nato and the EU to provide us with satellite imagery and other relevant information,’ she concluded.”

Click here, here, here, and here for articles.

Click here for PACE Press Statement.

Click here for my last post on the topic.

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by | 25 Nov 2011 · 05:19

PACE to Conduct Hearing: “Lives Lost in the Mediterranean Sea: Who is Responsible?” (Paris, 29 Nov)

The PACE Committee on Migration, Refugees and Population, in connection with the preparation of a report by Ms Tineke Strik (Netherlands, SOC) on the deaths of boat people who have died in the Mediterranean, will conduct a hearing in Paris on 29 November.  Ms Strik was appointed in June 2011 by the PACE Committee as Rapporteur to prepare a report on the deaths of boat people who have died in the Mediterranean since January 2011.

“The hearing will look at the loss of human life at sea, it will examine the right of families to receive information on the victims, and it will consider the rules applicable under international law and maritime law relevant to rescue at sea. The hearing will also examine international co-ordination regarding interception and rescue at sea, as well as the role of the national authorities, NATO and FRONTEX.  The participants include representatives of the International Committee of the Red Cross, the Office of the United Nations High Commissioner for Refugees, FRONTEX, the Italian Council for Refugees, and the International Institute of Humanitarian Law.”

The hearing seems to be open only to members of the press and will be held at the Council of Europe, 55 avenue Kléber, 75016 PARIS (Metro: Boissière).

Click here and here for more information.

Click here for my last post on this topic.

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by | 05 Oct 2011 · 06:13

PACE Report: Lampedusa Reception Centres Not Suitable Holding Facilities for Migrants

The PACE Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants, asylum-seekers and refugees on Europe’s southern shores has issued a report on the migrant reception centres on Lampedusa.  A delegation of the sub-committee members visited Lampedusa in May of this year.

From the PACE Press Release:  “The reception centres in Lampedusa are not suitable holding facilities for irregular migrants, in particular Tunisians. In practice, they are imprisoned there without access to a judge, according to the Parliamentary Assembly of the Council of Europe (PACE) Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants, asylum-seekers and refugees on Europe’s southern shores, in its report on its visit to Lampedusa*, which was declassified today [3 October 2011]. ‘The reception centres should remain just that and not be turned into holding centres,’ said Christopher Chope (United Kingdom, EDG), Chair of the ad hoc sub-committee and of the PACE Committee on Migration, Refugees and Population.  In this context, the ad hoc sub-committee is concerned by the tensions on the island, which have increased exponentially: arson in the main reception centre on 20 September caused serious damage and led to an upsurge in violence, leading the Italian authorities to declare Lampedusa an ‘unsafe port’. ‘These acts of violence are to be strongly condemned. They do not acknowledge the efforts of both the local population of Lampedusa and the Italian coastguards, who day after day do their utmost to rescue people at sea and to offer them temporary shelter on the island,’ declared the members of the ad hoc sub-committee….”

Excerpts from the Report:

“XV. Conclusions and recommendations

82. Much of the work observed by the delegation on Lampedusa warrants admiration, praise and broad support, even if some of the images provided in the media in the past have conveyed a rather more negative image. However some of the underlying problems noted by the delegation during its visit have manifested themselves in recent events, notably the arson attacks on the centre and the rising violence. Unfortunately what happened recently was foreseeable by the authorities and was inherent in the challenges of handling mixed flows of migrants and asylum seekers in the context of detention in a centre designed for reception.

83. What’s done is done, but lessons can usefully be learnt from the episode which has been painful both for Lampedusa and for the migrants, refugees and asylum-seekers who have been subjected to appalling conditions.

84. Lampedusa is still in the front line for arrivals of mixed migration flows by sea, in particular from Libya. The arrivals have not decreased in intensity and Italy and Europe must be ready to face up to a potentially even larger influx.

85. However, if we look at the number of arrivals so far, this is not a crisis for Italy or for Europe, but it is for Lampedusa.

86. In the immediate future, as soon as the situation is settled and the port is again considered safe, Lampedusa must remedy its limited reception capacity as the centres are immediately saturated by the arrival of boats with more and more people on board.

87. In the possibly very near future, if the number and frequency of arrivals increase, reception capacities in Italy will have to be brought into line. At the time of the visit, the Vice-Prefect and the Mayor were optimistic and convinced that the transfer system put in place was working, and that the situation would not deteriorate to the point reached earlier in the year. Furthermore, they considered that the transfer capacity could be increased through the planned provision of an additional boat. The members of the Sub-Committee at the time was confident that the Italian authorities would continue to do everything necessary to manage arrivals, even if their number were to increase. However, these measures – mostly designed for dealing with refugees and asylum-seekers fleeing Libya – have been proved insufficient to handle the challenge of handling the situation of the Tunisian migrants.

88. The Ad Hoc Sub-Committee wishes to voice its concern regarding a new agreement which the Italian authorities are reported to have signed with the authorities in Benghazi in Libya. The situation in Libya is not safe enough for people to be returned there and UNHCR’s position on this question remains unchanged. Furthermore, any attempt to deny access to persons entitled to international protection (and there are many of them in Libya) would be a clear breach of Italy’s international obligations.

89. There remains the issue of minimising loss of lives at sea and the need to ensure that all states fulfill their obligations of rescue at sea and the provision of access to international protection following any intervention.

90. Due to its proximity to North-Africa, Lampedusa is a key island to avoid even greater deaths at sea. If the boat people cannot hope to reach Lampedusa, their already highly dangerous journeys will become longer and therefore even more unsafe. To avoid more tragedies, Lampedusa’s reception capacities must be rebuild and improved as soon as possible.

91. The Ad Hoc Sub-Committee urges the Italian national, regional and local authorities to maintain their co-ordinated effort to manage arrivals of mixed migration flows in Lampedusa while complying with the relevant international standards and in co-operation with the international organisations and NGOs present on the island.

92. On the basis of its observations, the Ad Hoc Sub-Committee calls on the Italian authorities:

  • i. to continue to comply immediately and without exception with their obligation to rescue persons in distress at sea and to guarantee international protection, including the right of asylum and nonrefoulement;
  • ii. to introduce flexible measures for increasing reception capacities on Lampedusa;
  • iii. to improve conditions at the existing centres, and in particular the Loran base, while ensuring as a matter of priority that health and safety conditions meet existing standards – even when the centres are overcrowded – and carrying out strict and frequent checks to ensure that the private company responsible for running the centres is complying with its obligations;
  • iv. to ensure that new arrivals are able to contact their families as quickly as possible, even during their stay on Lampedusa, particularly at the Loran base, where there are problems in this regard;
  • v. to provide appropriate reception facilities for unaccompanied minors, ensuring that they are not detained and are kept separate from adults;
  • vi. to clarify the legal basis for the de facto detention in the reception centres in Lampedusa;
  • vii. where Tunisians in particular are concerned, only to keep irregular migrants in administrative detention under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review;
  • viii. to continue to guarantee the rapid transfer of new arrivals to reception centres elsewhere in Italy, even if their number were to increase;
  • ix. to consider the requests by the population of Lampedusa for support commensurate with the burden it has to bear, particularly in economic terms;
  • x. not to conclude bilateral agreements with the authorities of countries which are not safe and where the fundamental rights of the persons intercepted are not properly guaranteed, as in Libya.

93. Recalling the Assembly’s Resolution 1820 (2011) on “Asylum-seekers and refugees in Europe: sharing responsibilities”, the Ad Hoc Sub-Committee also recommends that all Council of Europe member states, and particularly the European Union member states, display greater solidarity by providing direct assistance to the countries, including Italy, which are currently faced with arrivals from the southern Mediterranean, and by accepting relocations within Europe where appropriate.

94. The Sub-Committee also urges member states to follow the example of the close co-operation between the Italian authorities and the member organisations of the “Praesidium Project” (UNHCR, IOM and the Red Cross) in managing arrivals and reception centres.

95. The Ad Hoc Sub-Committee invites the Italian authorities, through the Italian Delegation to the Parliamentary Assembly, to keep the Committee on Migration, Refugees and Population, appraised of progress on the 10 specific issues raised above on a six monthly basis.”

Click here for Report.

Click here for PACE Press Release.

Click here for my previous post.

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by | 24 Sep 2011 · 04:27

Articles: European Journal of Int’l Law and Goettingen Journal of Int’l Law

“Fighting Maritime Piracy under the European Convention on Human Rights”, European Journal of International Law, Volume 22, Issue 3, by Stefano Piedimonte Bodini, Head of Division at the Programme and Budget Department of the Council of Europe (author’s opinions are strictly personal).  (subscription required)

Abstract: “On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court’s approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.”

“Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem,” Goettingen Journal of International Law, by Killian S. O’Brien. (open access)

Abstract: “Following in the aftermath of the Arab Spring, Europe’s southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the ‘Constitution of the Oceans’, the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.”

“Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants,” Goettingen Journal of International Law, by Julian M. Lehmann. (open access)

Abstract: “In light of recent events causing people’s movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants’ entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.”

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by | 08 Sep 2011 · 05:57

CoE Human Rights Commissioner Releases Report on Italy’s Treatment of Roma and Migrants

Council of Europe Commissioner for Human Rights, Thomas Hammarberg, just released a report on Italy based upon his visit to Italy on 26-27 May 2011.  The report addresses concerns relating to the treatment of the Roma and Sinti and relating to the treatment of migrants, including migrants arriving from North Africa.

Excerpts:

“Strasbourg, 7 September 2011 – CommDH(2011)26 – English only

Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Italy from 26 to 27 May 2011

[***]

II. Protection of the human rights of migrants, including asylum seekers

Rescue operations and interceptions at sea

The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats crossing the Mediterranean. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, which is all the more indispensable in the current context of forced migration from Libya. He calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations, including any lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue. With reference to the operations carried out jointly with Libya in the central Mediterranean aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called push-backs), the Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement.

[***]

II. Protection of the human rights of migrants, including asylum seekers

44. Following the political unrest in Tunisia and the armed conflict in Libya, the number of migrants, including asylum seekers, arriving on boats to Italy, and in particular Lampedusa, has increased sharply. Since mid-January, approximately 24 000 people have arrived from Tunisia. At the end of March 2011, migrants also started to arrive on boats from Libya (the biggest groups being nationals of Nigeria, Ghana, Mali, Ivory Coast, Bangladesh, Eritrea and Somalia) and by 23 June their number had almost reached 20 000. In addition to arrivals from Tunisia and Libya, some 2 000 migrants landed in southern Italy on boats coming from Egypt, Greece and Turkey. On 23 June, the total figure of arrivals by sea to Italy since January 2011 therefore stood at around 46 000.

45. It is clear that these events pose a number of challenges relating to a wide range of human rights, including the right to seek asylum and the right to life, notably in connection with rescue operations at sea. With most of the migrants from Northern Africa seeking refuge and a new life in “Europe” generally, and not specifically in the countries that they reach first, the European dimension of these challenges is equally clear. Certainly, the ongoing military operations in Libya and their impact on migratory movements bound to Europe has lent further visibility to this European and international dimension. Accordingly, the Commissioner has on many occasions called for a greater European role, in the form of solidarity and co-operation in meeting the human rights challenges relating to arrivals of migrants, including asylum seekers, from Northern Africa, but unfortunately the response has been limited. The Commissioner reiterates this call in respect of the situation with which Italy is confronted at the moment.

46. At the same time, the Commissioner wishes to stress that Italy must abide by its human rights obligations vis-à-vis all migrants, including asylum seekers, who find themselves within Italy’s jurisdiction – a responsibility which in the Commissioner’s view has not been met fully. While the Italian authorities have taken a number of steps to protect the human rights of these persons, from rescue at sea through to reception and access to asylum, concerns remain in different subject areas, some of which are highlighted below.

47. More generally, the Commissioner wishes to stress that a more objective and balanced representation of the migration movements prompted by the events in Northern Africa, and notably the conflict in Libya, would assist in ensuring a human rights compliant response to these phenomena in both Italy and Europe as a whole. In this respect, the Commissioner notes that the 20 000 arrivals from Libya to Italy mentioned above stand, at least for the moment, in stark contrast with the many times greater forecasts concerning the potential number of arrivals from Libya which had been made publicly in Italy at the beginning of the conflict. It is also sobering to note that these arrivals account for around 2% of the persons having left Libya as a result of the conflict. Indeed, 98% of the approximately 1 100 000 people who have left Libya so far have done so by crossing land borders into Tunisia, Egypt, Niger, Chad and Algeria.

a. Rescue operations and interceptions at sea

48. The Italian authorities, and particularly the coast guard and customs police, have been instrumental in saving the lives of many migrants who have attempted to reach European shores from Northern Africa on unseaworthy boats. Rescue operations have obviously intensified in recent months, reflecting the increase in departures of migrant boats from Tunisia and Libya since January 2011.

49. Over the same time period, however, at least as many as 1 500 persons have lost their lives while trying to cross the Mediterranean to seek a safe haven. The Commissioner notes that responsibilities remain to be ascertained in certain cases. For instance, in an episode which is currently being investigated by the Parliamentary Assembly of the Council of Europe, and which resulted in the death at sea of 61 persons, including over 20 women and children, a boat carrying 72 migrants was left adrift for two weeks in spite of its presence having reportedly been signalled to the authorities of Italy, Malta and NATO, and the boat itself having been spotted by a helicopter and a passing vessel of unidentified nationalities. The Commissioner notes that in some cases, lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue may delay operations or otherwise put the lives of migrants in distress at risk. More generally, the Commissioner finds it difficult to accept that people in distress at sea can face death in one of the busiest areas of the Mediterranean, especially now with the large numbers of military and other vessels in the area.

50. The Commissioner also notes that since May 2009, and up to the beginning of the armed conflict in Libya in February 2011, the Italian authorities have carried out operations jointly with Libya in the central Mediterranean, aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called respingimenti, or push-backs). The practice has been repeatedly criticised for violating international human rights law, as migrants, including asylum seekers, are returned to Libya where they risk being ill-treated or in turn deported to other countries where they are exposed to such a risk, without being given an opportunity to seek and enjoy international protection through an individual assessment of their case. Indeed, in a case that is currently pending before the Grand Chamber of the European Court of Human Rights, a group of Somali and Eritrean migrants who were travelling by boat from Libya have argued that the decision of the Italian authorities to intercept their vessels on the high seas and send them straight back to Libya exposed them to a risk of ill-treatment there, as well as to a serious threat of being sent back to their countries of origin, where they might also face ill-treatment.24

51. The Commissioner notes that the beginning of these operations started shortly after the conclusion of agreements between Italy and Libya in 2008 and 2009.25 In his 2009 report on Italy, the Commissioner expressed “his disapproval of bilateral or multilateral agreements for the forced return of irregular migrants to countries with long-standing, proven records of torture”,26 a concern which was shared by the Parliamentary Assembly in June 2010.27 In February 2011, following the beginning of the armed conflict in Libya, Italy announced that it had suspended the implementation of its agreements with Libya. However, the Commissioner also notes that on 17 June 2011, Italy signed with the Libyan National Transitional Council a Memorandum of Understanding, which refers to the commitments contained in the agreements previously signed with Libya and provides for mutual assistance and co-operation in combating irregular immigration, “including the repatriation of immigrants in an irregular situation.”28

Conclusions and recommendations

52. The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats in the Mediterranean, which have saved thousands of lives over the past months and years. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, a task which is all the more indispensable in the current context of forced migration from Libya.

53. At the same time, the Commissioner calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations. The attention of the Italian authorities is drawn to the PACE resolution 1821 (2011)29 adopted in June 2011, which calls on member states to “fulfil without exception and without delay their obligation to save people in distress at sea.”30 In this connection, the Commissioner recalls that on 8 April, just two days after a boat from Libya carrying more than 220 migrants capsized near the Italian island of Lampedusa causing the death by drowning of more than 200 persons, UNHCR recommended that “[a]ny overcrowded boat leaving Libya these days should be considered to be in distress.” On the same occasion UNHCR also underlined that “[a] long-standing tradition of saving lives at sea may be at risk if it becomes an issue of contention between States as to who rescues whom.”

54. The Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement. The Commissioner wishes to highlight that when a state exercises effective control, authority or power over third-country nationals rescued or intercepted at sea (including the state’s own territorial waters, those of another state and international waters) its obligations include ensuring effective access to adequate asylum determination procedures and not returning individuals to countries where they would face a real risk of persecution or treatment contrary notably to Articles 2 (right to life) and 3 (prohibition of torture) of the ECHR.

55. In this connection, the Commissioner draws once more the attention of the Italian authorities to the PACE resolution 1821 (2011) which calls on member states to: “refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgements of the European Court of Human Rights”; and to “suspend any bilateral agreements they may have concluded with third states if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement […].”31

56. In accordance with UNHCR’s recommendations on protection with regard to people fleeing from Libya, the Commissioner strongly encourages the Italian authorities to continue to keep the country’s borders open for people who are forced to flee from Libya and are in need of international protection.32

[***]”

Click here for Report.

Click here for CoE Press Statement.

Click here for CoE Human Rights website regarding human rights of immigrants, refugees, and asylum seekers.

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by | 08 Sep 2011 · 05:18

PACE Rapporteur Conducts Interviews in Italy Regarding Mediterranean Migrant Deaths

Tineke Strik (Netherlands, SOC) concluded a two day fact-finding trip to Italy on 7 September as Rapporteur for the PACE Migration Committee.  She is investigating the deaths of boat people who have died in the Mediterranean since January 2011.  Strik interviewed Father Moses Zerai, an Eritrean priest, who was in satellite phone contact with several migrant boats during their voyages from Libya, including the disabled migrant boat that drifted for days in March-April this year and on which 61 persons are believed to have died.  In addition to Zerai, Strik interviewed three of the nine survivors from the boat, Italian Coastguard officials, and NGO and UNHCR staff.  Strik “is planning interviews with officials from Nato and the Maltese government, which the Italian coastguard says was alerted to the boat’s plight.”

From the PACE press statement: “‘There is an obligation to help all people in distress.  If anyone did not live up to this responsibility and deliberately did not assist them, they must not be allowed to get away with it. … The testimonies of witnesses directly involved in this incident are coherent, but we have to continue to collect more data and information on who was when and where in the area,’ Mrs Strik reported.  ‘My mission is to try to find out what went wrong, and if there was perhaps a gap in responsibility-sharing. The recommendation which will be contained in my report is aimed at establishing responsibilities and trying to determine how to deal with such incidents in the future. We have to draw the right lessons to prevent similar situations from occurring again.  … At the end of my inquiry, I expect national jurisdictions, governments and parliaments to carry on the investigations and I very much hope that the dynamic of truth … will pave the way,’ she concluded.”

Click here (EN), here (FR), and here (ES) for articles.

Click here for PACE press statement.

Click here for previous post.

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