Category Archives: Analysis

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

Steve Peers: The Refugee Crisis: What should the EU do next?

A great legal analysis and overview of the situation by Prof. Steve Peers (Professor of EU Law & Human Rights Law, University of Essex) from EU Law Analysis blog:

“…. How should the EU address [the refugee crisis] next? Should it abolish or reform the Schengen and/or Dublin rules? Are Member States complying with EU and international law in their response? To answer these questions, I will examine in turn (a) the international law framework; (b) the EU law framework; (c) whether Schengen is at ‘fault’; (d) whether Dublin is at ‘fault’; and (e) what the EU should do next.  My main purposes are to explain the legal background, to point out some legal errors, and to suggest the best way forward in light of the international refugee law framework…..”

Click here for article.

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UNHCR Launches Web Data Portal on Mediterranean Refugee/Migrant Situation

UNHCR has launched a comprehensive data portal on the Mediterranean refugee and migrant situation and the various responses.  The portal contains data, statistical information, maps, reports, situation updates, and other information.

 

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Filed under Aegean Sea, Analysis, Data / Stats, European Union, Mediterranean, News, Reports, UNHCR

NY Times: The Outlaw Ocean Series – Murder at Sea, Captured on Video, But Killers Go Free

Murder at Sea, Captured on Video, But Killers Go Free” is the second article in a four article NY Times series, The Outlaw Ocean, by Ian Urbina ( 点击查看本文中文版 ):

“The man bobbing in the sea [likely the Indian Ocean in 2012 or 2013] raises his arms in a seeming sign of surrender before he is shot in the head. … A slow-motion slaughter unfolds over the next 6 minutes and 58 seconds. … Despite dozens of witnesses on at least four ships, those killings remain a mystery. No one even reported the incident — … Law enforcement officials learned of the deaths only after a video of the killings was found on a cellphone left in a taxi in Fiji last year, then posted on the Internet. With no bodies, no identified victims and no exact location of where the shootings occurred, it is unclear which, if any, government will take responsibility for leading an investigation. Taiwanese fishing authorities, who based on the video connected a fishing boat from Taiwan to the scene but learned little from the captain, say they believe the dead men were part of a failed pirate attack. But maritime security experts, warning that piracy has become a convenient cover for sometimes fatal score-settling, said it is just as likely that the men were local fishermen in disputed waters, mutinied crew, castoff stowaways or thieves caught stealing fish or bait. ‘Summary execution, vigilantism, overzealous defense, call it what you will,’ said Klaus Luhta, a lawyer with the International Organization of Masters, Mates & Pilots, a seafarers’ union. ‘This boils down just the same to a case of murder at sea and a question of why it’s allowed to happen.’…”

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NY Times: The Outlaw Ocean Series – Stowaways and Crimes Aboard a Scofflaw Ship

The first instalment of a four part NY Times series, The Outlaw Ocean, by Ian Urbina was published yesterday. The first instalment, Stowaways and Crimes Aboard a Scofflaw Ship, follows the activities of one particular ship, including an incident where two stowaways were forced overboard and left adrift on a makeshift raft while the ship was at sea off West Africa. From the NYT: “The Outlaw Ocean series was a deep collaboration, with many parts of the newsroom working with Ian Urbina on a quest to reveal lawlessness on the high seas. The hope for the project was to take readers inside that lawlessness, using video, photography, mapping and design tied closely together.”

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European Migrant Death Database – Deaths at the Borders of Southern Europe

VU University Amsterdam has released a border death database documenting migrant deaths along the Southern European borders.

Here is a web post from DIIS (Danish Institute for International Studies) describing the project: “On 12 May 2015, researchers of VU University Amsterdam 2015-05-12_Border Deaths Org mapreleased a border death database, based on official death records of migrants who died at the Southern European borders in the years 1990-2013. They suggest that European states continue to collect such data supervised by a new European Migrant Death Observatory which is should be part of the Council of Europe.

The database contains individualized information on 3.188 people who died while attempting to reach southern EU countries from the Balkans, the Middle East, and North & West Africa, and whose bodies were found in or brought to Europe. It is unique because it includes – where known – date and place of death, cause of death, gender, age, country of origin, and whether or not the person was identified. Over the past year, 13 researchers visited 563 local civil registries in Spain, Italy, Greece, Malta and Gibraltar and collected information from death certificates. “This database underlines decades of indifference of European states. They had this information all the time, but failed to collect it”, says Professor Thomas Spijkerboer.

The database can be accessed through www.borderdeaths.org

It includes:
o Full database
o Visualization
o Documentary Counting. The Human Costs of Border Control (Pieter Boeles, 2014) about the research project
o Papers on (1) how was the data collected; (2) preliminary findings; (3) identification; (4) policy relevance”

See also: The short documentary Counting the Human Cost of Border Control, in which Thomas Spijkerboer and Tamara Last (Migration Law, VU University Amsterdam) search for traces of those who have died in the civil registries along the Mediterranean coast.

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Filed under Analysis, Data / Stats, European Union, Maps

Statewatch Analysis: The EU’s Planned War on Smugglers

Statewatch has issued an Analysis, “The EU’s Planned War on Smugglers,” written by Steve Peers, Professor of EU Law, University of Essex:

“The EU’s Foreign Affairs Council is meeting today to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’. However, it is clear from the documents discussed in the EU’s Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being “economical with the truth”. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States’ forces and refugees. In effect, the EU is planning to declare war on migrant smugglers – without thinking through the consequences. [***]”

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Filed under Analysis, European Union, Frontex, Libya, Mediterranean