by | 25 Sep 2011 · 02:49

DIIS Seminar: “The Lesser Evil”? Policy Logics and Practices of Removal and Detention in the Euro-Mediterranean Area (Copenhagen, 6 Oct)

The Danish Institute for International Studies (DIIS) will hold a seminar (English) in Copenhagen on 6 October 2011, 14.00-17.00.  Advance registration is required.  Registration deadline is Wednesday, 5 October 2011 at 12.00 noon.  Click here for more information.

From the DIIS announcement:  “The arrival of more than 45,000 African boat migrants and asylum seekers in Italy this year has caused much public and political attention in Europe. One response is to call for increased sea patrols to prevent irregular crossings of the Mediterranean Sea. Another response is detention, deportation and forced removal of irregular migrants and rejected asylum seekers who have reached Europe. Such practices are already important objectives in European migration management and policies but are likely to become even more significant in coming negotiations with North African migrant sending and transit countries.

This seminar examines practices of deportation, readmission and detention from a policy and migrant perspective. It will address the following questions: What are the policy logics and readmission agreements in the Euro-Mediterranean area? How is detention and deportation of irregular migrants carried out? And how do deported migrants deal with their situation?”

Click here for more information.

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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 | 23 Sep 2011 · 19:07

Australia’s Clarke and Dawe on “Boat Stopping Devices” and Offshore Refugee Processing (satire)

If you have 2 ½ minutes to spare, this is a humorous comment on the current very bad situation in Australia.  Click here for video.

(I saw this on the Migration Law listserv.)

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by | 23 Sep 2011 · 04:18

EP Study on Implementation of EU Charter of Fundamental Rights and Impact on Frontex, Europol, and EASO

The European Parliament Policy Dept. C has released a study requested by the LIBE Committee entitled: “Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office.”  The study is authored by Prof. Elspeth Guild, Dr. Sergio Carrera, Mr Leonhard den Hertog, and Ms Joanna Parkin.  The study will be presented in the 3 October 2011 LIBE meeting.

Abstract:  “This study sets out to examine the impact and implementation of the EU Charter of Fundamental Rights with respect to three EU Home Affairs agencies: Frontex, Europol and EASO. It assesses the relevance of the EU Charter when evaluating the mandates, legal competences and practices of these agencies, particularly in the fields of external border control and the management of migration.  After identifying specific fundamental rights guaranteed in the EU Charter that are potentially put at risk by the actions of these three agencies, and judicial obstacles that prevent individuals from obtaining effective legal remedies in cases of alleged fundamental rights violations, we present a set of policy recommendations for the European and national parliaments.”

Excerpts from the 100+ page study:

“KEY FINDINGS

  • EU home affairs agencies have confirmed themselves as distinct forms of EU regulatory agency. Their scope of action and tasks are not fully predetermined and defined in their founding regulations, at times allowing for the flexible accommodation, and sometimes extension, of their competences to new domains on an ad hoc basis. The three agencies have been granted important operational tasks that go beyond mere ‘regulatory activities’. Yet their dominant framing as depoliticised ‘coordinators’ or ‘facilitators’ of Member State actions has increased their relative autonomy, in some cases preventing a proper democratic scrutiny of the nature and impact of their activities and evading questions of accountability, responsibility and liability in cases of alleged unlawful actions, including potential fundamental rights breaches and risks. These observations are particularly pronounced in the cases of Frontex and Europol. It remains to be seen the extent to which the functioning and activities of EASO will follow a similar pattern.
  • Certain activities performed by Frontex, Europol and EASO as foreseen in their legal remits or developed through informal (de facto) practices present a sensitive relationship with specific fundamental rights provisions foreseen in the EU Charter. This is particularly relevant as regards three categories of actions common to each agency: 1) operational activities, 2) the exchange and processing of information and, in the case of Frontex and Europol, personal data (and the subsequent uses of this information) and 3) relations, cooperation (including so-called ‘capacity building’) and exchange of information with third countries through working arrangements and ‘soft law’. Inter-agency cooperation between Frontex, Europol and potentially in the future EASO, further magnifies the scope, and opens up new venues for, breaches of fundamental rights.
  • The relationship between Frontex, Europol (and to some extent) EASO and fundamental rights is further strained by their ‘home affairs focus’ and the legacy of cross-pillarisation which affects their policies, practices and political ambitions. A conflation of irregular migration with ‘insecurity’ and ‘threat’ legitimises the adoption of coercive policies which, together with a culture of secrecy and lack of transparency, exacerbates the vulnerable status of individuals targeted by the actions of these agencies.
  • There is a profound ‘knowledge gap’ concerning the added value, nature and impact of the activities by Frontex, Europol and EASO on the ground, as well as their full compatibility or coherency with EU internal and external policy priorities and legal frameworks. This report reveals a severe lack of information and monitoring of their actions, especially those of an ‘operational’ nature, which lead to legal uncertainties and accountability gaps that put the agencies at odds with the EU Charter and general rule-of-law principles of the European legal regime.
  • Finally, there is an anachronistic relationship between the overly-politicised nature of some of these EU home affairs agencies as a result of pressures applied by certain EU Member States and the European institutions to demonstrate the practical application of ‘the principle of solidarity’ and ‘mutual trust-based cooperation’ at EU level, and their weak democratic and public accountability. It is paradoxical that, despite the political drivers which steer the activities of EU Home Affairs agencies, their framing as ‘technical’ rather than political actors prevents a full and plural debate and accountability of their actions.

RECOMMENDATIONS

Recommendation 1: A new ‘model of agency-building’ should be ensured and mainstreamed across current and future EU Home Affairs agencies. The model should act as a ‘standard setter’ against which the European Parliament and national parliaments can evaluate and scrutinise the performance and functioning of agencies, while still respecting agencies’ specific characteristics. Given the dynamic evolution of EU Home Affairs agencies, the model could be taken into account if and when the legal mandates of the agencies are opened for re-negotiation. The components and features of this model should include:

  • A more direct involvement of the European Parliament in the appointment of agency Executive Directors by requiring a binding approval from the Parliament for selected candidates.
  • A stronger representation of the European Commission on the Management Boards of agencies (a minimum of 5 Commission representatives, increased weighting of their votes and the granting of veto rights for certain fundamental rights sensitive issues.)
  • Advisory boards or ‘consultative forums’ should be established in all EU Home Affairs agencies as an integral part of their governance structure.
  • Time limits on the confidential status of documents pertaining to agency activities, which oblige the automatic release of such documents to the public within a set time frame should be put in place to promote transparency and public accountability.
  • Institutional structures for individuals to access effective legal remedies in cases of fundamental rights violations should be revised and developed.
  • Codes of conduct and comprehensive training in fundamental rights for all staff involved in agency activities, particularly operational actions, should be streamlined across all Home Affairs agencies.
  • Mechanisms to strengthen compliance with fundamental rights obligations on the ground should be included in the legal mandates of EU Home Affairs agencies: fundamental rights strategies and implementation plans, an in-house fundamental rights officer and independent monitor responsible for initiating disciplinary measures in case of misconduct.
  • To support internal accountability an independent Board of Appeals could be established composed of independent lawyers. Any challenged actions should be frozen while under consideration by the Board of Appeals.
  • EU Home Affairs agencies should have the competence to suspend or terminate activities if violations of fundamental rights occur in the course of those activities.
  • Clear legal definitions should be provided for key concepts related to agency tasks; agency actions should not exceed their legal remits and competences.
  • Comprehensive provisions on data protection should be integral to the legal mandates of EU Home Affairs agencies accompanied by independent supervisory bodies empowered to issue binding opinions.

Recommendation 2: The Inter-Institutional Working Group (IIWG) charged with identifying rules to support a global framework for regulatory agencies should explicitly recognise the fundamental rights-related accountability gaps identified by this report in the activities of EU Home Affairs agencies and take these into account it its final declaration.

Recommendation 3: A closer democratic scrutiny of agencies functioning, planning and work should be ensured through the creation of a permanent inter-parliamentary body or committee dealing specifically with regulatory agencies. The body should be run by the European Parliament’s LIBE Committee and include representatives from the corresponding committees of national parliaments.

Recommendation 4: In order to improve access to justice and effective remedies for individuals regardless of their nationality and/or location, subject to actions by EU Home Affairs agencies, a new branch of the Court of Justice should be established – an Agencies Tribunal – following the same format as the EU Civil Service Tribunal. This body would deal with admissibility claims and complaints of a legal and administrative nature against the agencies and national authorities participating in agencies’ operations and activities.

Recommendation 5: the Commission should have the competence to freeze Agency activities in cases of actual, suspected or imminent breaches of fundamental rights, while the legality of the case is being examined in detail. For such an ex ante procedure to be fully effective, careful attention should be paid to ensuring its overall objectivity, impartiality and democratic accountability. The procedure would be activated by the European Commission (on its own initiative or that of the European Parliament) on the basis of evidence provided by impartial actors such as the EU Agency on Fundamental Rights (FRA) or a new external network of independent and interdisciplinary experts/academics working in close cooperation with civil society organisations based in the different member states.

Recommendation 6: A new piece of secondary law should be adopted specifying the access to rights and to justice by third country nationals subject to new border and migration controls (including those taking place ‘extraterritorially’). The tasks and competences of the EU Home Affairs agencies call for more legal certainty. Their remits and activities and allocation of responsibilities should be clearly defined in law. Any experimental governance activities should be avoided in order to ensure respect for the principles of legal certainty and accountability.

Recommendation 7: Particular attention should be paid to the practical implementation of EASO’s mandate, given the particularly sensitive nature of some of the agency’s tasks from a fundamental rights viewpoint. Guaranteeing the right to asylum envisaged in Article 18 of the EU Charter of Fundamental Rights should constitute an explicit priority for EASO and the agency’s work should be focused first and foremost around this objective.

Recommendation 8: The fundamental rights sensitivities of Europol’s work and safeguards should be taken into account when Europol’s mandate is re-opened for negotiation in 2013. DG Justice should play an active role during the preparation of the Commission’s proposal for a Europol Regulation to conduct a fundamental rights proofreading of the new legislation. Moreover, the European Parliament should ensure that the new ‘model of agency-building’ proposed in Recommendation 1 of this report would be mainstreamed to Europol to the largest extent.

Recommendation 9: The European Parliament should call upon Frontex to no longer conduct any joint operation in the maritime territory of third states, as the consistency of this practice is not only questionable with respect to the rule of law principles of legal certainty and accountability, but it is also at odds with fundamental rights foreseen in the EU Charter.”

Click here for Study.

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by | 22 Sep 2011 · 04:09

HRW Report: Frontex Exposes Migrants to Abusive Conditions in Greece

Human Rights Watch yesterday issued a report entitled “The EU’s Dirty Hands: Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece” which “assesses Frontex’s role in and responsibility for exposing migrants to inhuman and degrading detention conditions during four months beginning late in 2010 when its first rapid border intervention team (RABIT) was apprehending migrants and taking them to police stations and migrant detention centers in Greece’s Evros region. … ‘Frontex has become a partner in exposing migrants to treatment that it knows is absolutely prohibited under human rights law,’ said Bill Frelick, Refugee Program director at Human Rights Watch. ‘To end this complicity in inhuman treatment, the EU needs to tighten the rules for Frontex operations and make sure that Frontex is held to account if it breaks the rules in Greece or anywhere else.’ … ‘It’s a disturbing contradiction that at the same time that the European Court of Human Rights was categorically ruling that sending migrants to detention in Greece violated their fundamental rights, Frontex, an EU executive agency, and border guards from EU states were knowingly sending them there,’ Frelick said. … ‘As new migration crises emerge in the Mediterranean basin and as Frontex’s responsibilities expand, there is an urgent need to shift EU asylum and migration policy from enforcement-first to protection-first.’ Frelick said. ‘This is not only legally required, but the EU, its agencies, and member states can and should respect and meet the EU’s own standards.’”

As the HRW report notes, the humanitarian crisis on the Greece-Turkey land border was many years in the making, but among the contributing factors to the increased flow of migrants seeking to enter the EU at this location, which by November 2010 accounted for 90% of the detected illegal crossings at EU borders, were the enhanced migration control measures in the Central Mediterranean and West Africa, specifically the bi-lateral push-back practice being implemented at the time by Italy and Libya and Spain’s bi-lateral agreements with West African countries.  Increased sea patrols along Greece’s maritime borders also contributed to the shifting of the flow to the land border.

Frontex issued a statement (or click here) responding to the HRW report in which it welcomed the report and said it was “satisfied to note that its comments on the original draft were taken on board. The report now highlights an issue, which we agree, is of great importance. We would like to recall that Frontex fully respects and strives for promoting Fundamental Rights in its border control operations which, however, do not include organisation of, and responsibility for, detention on the territory of the Member States, which remains their exclusive remit. … Frontex was receiving signals of concern from national officers deployed to the region. The Agency has been extremely concerned with the conditions at the detention centres – a point which we raised on several occasions both with the Greek authorities and with the European Commission. Nevertheless, we continue to stress that at the practical level abandoning emergency support operations such as RABIT 2011 is neither responsible, nor does it do anything to help the situation of irregular migrants on the ground….”

Here is Cecilia Malmström’s comment from her blog on the HRW report (translated from Swedish by Google translate):

“I also had a long meeting [on 21 September] with Human Rights Watch who has published a highly critical report on the asylum system in Greece . They argue that the EU agency Frontex, by its presence legitimizes the poor conditions at the border of Greece. We are well aware of the totally unacceptable situation at the reception centres in Greece and I am very frustrated that the situation is so slow to improve, especially in Evros. But probably the situation would have been even worse if Frontex had not been in place. We continue to put pressure on Greece and the new regulatory framework for Frontex, which I have proposed and was adopted by Parliament last week to strengthen its work on human rights significantly. The report will also be discussed in the FRONTEX Agency board meeting next week.”   (“Jag hade också ett långt möte med Human Rights Watch som har publicerat en mycket kritisk rapport om asylsystemet i Grekland . De menar att EU-organet Frontex genom sin närvaro legitimerar de usla förhållandena vid gränsen i Grekland. Vi är väl medvetna om den helt oacceptabla situationen vid mottagningscentren i Grekland och jag är väldigt frustrerad över att det går så långsamt att förbättra situationen särskilt i Evros. Men troligen hade situationen varit ännu värre om inte Frontex hade varit på plats. Vi fortsätter att sätta press på Grekland och i det nya regelverk för Frontex som jag har föreslagit och som Europaparlamentet antog förra veckan stärks arbetet med mänskliga rättigheter väsentligt. Rapporten skall också diskuteras på Frontex styrelsemöte nästa vecka.”)

Excerpts from the HRW Report:

“Key Recommendations

To the European Commission, the European Parliament and the European Council

  • Amend the Frontex Regulation to make explicit, and thereby reinforce, the obligation not to expose migrants and asylum seekers to inhuman and degrading detention conditions.
  • Amend proposed Frontex Regulation Art. 26a to empower the Fundamental Rights Officer to refer Frontex to the Commission for investigation and where appropriate infringement proceedings in the event that the Frontex executive director fails to suspend operations despite persistent and serious violations of the Charter and/or in the event that members states and their agents persistently violate the Charter during Frontex operations.

To Participating European States 

  • Suspend any participation in Frontex operations that fail to adhere to binding international human rights standards.
  • Instruct border guards deployed on Frontex missions on their obligations under international law. Ensure that border guards are trained and conversant regarding all rules and standards pertaining to the transfer and treatment of detainees.

To the Frontex Management Board

  • Suspend the deployment of EU border guards to Greece unless migrant detainees can be transferred to facilities elsewhere in Greece (or outside of Greece) that meet EU and international standards or until the conditions of detention in the Evros region where migrants are currently detained are improved and no longer violate European and international standards.
  • Intervene with Greek officials and monitor compliance to ensure that migrants apprehended by guest guards are transferred to detention facilities that comply with European and international standards.
  • Conduct thorough assessments of the risk that human rights violations may occur before engaging in joint operations or deploying RABIT forces.

To Greece

  • Implement the recently adopted asylum reform package as fully and as quickly as possible.
  • Ensure access to asylum procedures at the border and in the border region.
  • Reduce overcrowding by using alternative facilities and alternatives to detention as much as possible.
  • Immediately improve detention conditions, and immediately create open reception centers for asylum seekers and members of vulnerable groups, such as children.”

Click here for HRW Report.

Click here for HRW Press Release.

Click here or here for Frontex response.

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

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by | 22 Sep 2011 · 03:07

Eurostat: Asylum Statistics for Q1 2011

Eurostat has issued a statistical report regarding the number and makeup of asylum applicants in the 27 EU member states and Norway, Switzerland, and Lichtenstein for the First Quarter 2011.  The report documents the increased number of applications filed in Italy by Tunisians, but note that the report only addresses data through 31 March 2011.

Highlights include:

  • Nearly 66 000 persons sought asylum in one of the EU Member States during the first quarter of 2011, an increase of 4 000 compared with the same period of the previous year.
  • France and Germany remained the top destination countries of asylum applicants with 14 300 and 12 000 applicants respectively.  France and Germany received 40% of the total applications filed.
  • Germany (+ 2 700) and Italy (+1 300) recorded the highest increases in numbers of applicants in absolute terms compared to the first quarter of 2010, while Sweden (- 1 900) and the Netherlands (-700) recorded the largest falls.
  • In the first quarter of 2011, the main citizenships of people seeking asylum in the EU-27 were Afghans (5 800), followed by Russians (4 100) and Iraqis (3 800).
  • Tunisians (2 500) are now ranked eighth among the main countries of citizenship of asylum seekers.  90% of the Tunisian applications were made in Italy.
  • 55 600 first instance decisions on asylum applications were issued in the EU-27 during the first quarter of 2011. One out of four of such decisions was positive; in total 13 500 persons received some type of protection status, including refugee status (6 800 decisions), subsidiary protection (4 600 decisions) or authorisation to stay for humanitarian reasons (2 100 decisions).

Click here for Eurostat report.

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Asylum applicants, absolute and relative change between Q1/2010 and Q1/2011

Asylum applicants, EU-27, January 2010 – March 2011

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by | 20 Sep 2011 · 04:17

AI: Refugees Forced Out of Libya Urgently Need Resettlement

Amnesty International released a briefing paper this morning describing the “totally inadequate response by EU states to refugees” who are stranded near Libya’s borders.  AI estimates that there are 5000 refugees currently living in limbo along the borders.

From the AI Press Release: “‘We have witnessed an abysmal response to the plight of displaced refugees on Europe’s doorstep,’ said Nicolas Beger, Director of Amnesty International’s European Institutions Office.  ‘This failure is particularly glaring given that some European countries, by participating in NATO operations in Libya, have been party to the very conflict that has been one of the main causes of the involuntary movement of people.  EU Home Affairs Ministers must urgently address the resettlement issue – they can start by putting it prominently on the agenda of the Justice & Home Affairs Council on 22 September.’… Australia, Canada and the USA have offered to resettle some of the refugees stranded at Libya’s borders.  But only eight European countries have offered to help, between them offering fewer than 700 slots. …”  “Amnesty International believes sub-Saharan Africans in Libya remain at high risk of abuse and arbitrary arrest by anti-Gaddafi forces and last week issued a major report calling on the [Libyan] NTC to do more to protect them from reprisal attacks.”

Click here for briefing paper.

Click here for press release.

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by | 20 Sep 2011 · 03:47

IOM and Italy Sign Agreement to Facilitate Voluntary Returns for Migrants Recently Arrived from North Africa

Italy and IOM signed an agreement last week pursuant to which IOM will facilitate the voluntary returns of up to 600 migrants from Italy.  The agreement will be in place until the end of 2011.  The agreement is focused on assisting with the returns of migrants who have recently arrived in Italy from North Africa to their various countries of origin.

Click here for IOM statement on the programme.  (IT).

Click here for statement from the Dipartimento della Protezione Civile.  (IT).

Click here for article. (IT).

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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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by | 07 Sep 2011 · 04:42

More Evidence that Gaddafi Government Facilitated Migrant Boat Departures from Libya

There has been evidence for many months that the Gaddafi regime was facilitating migrant boat departures from Libya towards Italy and Malta; here are two recent articles on the topic from the Los Angeles Times and the Telegraph.

LA Times: “… During its life as a military base, the impromptu camp [at Janzour / Zanzour] was heavily guarded, but in recent in months, several people from the area said, Kadafi’s government facilitated the entry of Africans hoping to migrate by boat to Europe. … The military base was run by a Kadafi operative named Zuhair, according to several people familiar with its operation. As rebels approached Tripoli, they said, Zuhair was seen taking off in a speedboat, accompanied by his top aide and two bodyguards. … [The base] is also the scene of one of Muammar Gaddafi’s most bizarre and cynical plans; an operation to flood Europe with black African illegal immigrants in revenge for Nato’s bombing campaign. For months until the uprising in Tripoli two weeks ago, men in uniform were seen around the port directing the loading of immigrants onto leaky boats bound for Italy. Africans who landed this summer on the tiny island of Lampedusa – a speck of rock south of Sicily – said they had paid nothing for their passage, in contrast to the $1,000 fee usually demanded by people smugglers. No boats have left since the rebels drove Gaddafi’s men out, but the human cargo is still stranded there; a thousand desperate black African men, women and children, clustered in the dirt under beached boats in utter squalor, hungry, scared, penniless, and desperate to escape….”

The Telegraph: “…[a] man, who would not give his name, claimed that the port [of Zanzour] had been controlled by a shadowy official called Zuhair, who had vanished when the rebels arrived. ‘He is a Palestinian originally, with several passports,’ the man said. ‘He had people under him and they sent the boats to Lampedusa.’ There seems little likelihood that the operation was being conducted without official sanction; Zanzour is located not on some remote, unpoliced stretch of coast but within an old military base, only about ten miles west of Tripoli, an area which was firmly under Gaddafi’s control until recently. … Laura Boldrini, of UNHCR, warned that illegal immigration could get much worse in the months ahead, adding that nobody knew how the new government would deal with the problem. ‘What happens depends on security,’ she said. ‘If violence explodes in Libya, there is a danger of a massive new influx of people trying to escape.’”

Click here and here for articles.

Click on these links for some previous posts on the subject:

Is Libyan Government Facilitating Migrant Boat Departures from Libya? (31/03/11)

IOM Reports Migrants Were Forced by Libyan Soldiers to Board Boats (10/05/11)

Libya: Because of NATO Aggression, We Cannot Be Guards of Europe (11/05/11)

Guardian: Libya Official Admits Migrant Ships Being Allowed to Sail as Protest Against Nato (11/05/11)

Maltese JHA Minister Doubts Migrants Are Being Pushed to Flee Libya (13/05/11)

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by | 03 Sep 2011 · 05:11

PACE Rapporteur to Begin Fact-Finding Mission to Italy to Investigate Mediterranean Migrant Deaths

Tineke Strik (Netherlands, SOC) will begin a two day fact-finding trip to Italy on 6 September as Rapporteur for the PACE Migration Committee (Parliamentary Assembly of the Council of Europe).  She is investigating the deaths of boat people who have died in the Mediterranean since January 2011.

From the PACE press statement of 2 September:  “Meetings are scheduled with survivors of a shipwreck, officers of Italian coastguard units, representatives of NGOs active in the field and representatives of the Office of the United Nations High Commissioner for Refugees.  During her visit the rapporteur will in particular look into the way boats are intercepted – or not intercepted – by national coastguard forces, or by military vessels under either NATO or national command.  Further to reports that migrants and refugees have perished after their distress calls were ignored, the PACE Committee on Migration, Refugees and Population appointed Ms Strik in June to conduct an inquiry into these matters.”

From the PACE press statement issued in June 2011: “‘There have been allegations that migrants and refugees are dying after their appeals for rescue have been ignored,’ said Mrs Strik. ‘Such a grave allegation must be urgently investigated.  I intend to look into the manner in which these boats are intercepted – or not – by the different national coastguards, the EU’s border agency FRONTEX, or even military vessels. I also intend to speak to witnesses directly involved in reported incidents, and put questions to national authorities, the UNHCR, FRONTEX and NATO, among others.’  On 8 May, the Guardian newspaper reported that 61 boat people escaping from Libya had died after their appeals for rescue had been ignored by armed forces operating in the Mediterranean. The following day PACE President Mevlüt Çavusoglu called for ‘an immediate and comprehensive enquiry’ into the incident.”

Presumably Ms. Strik’s investigation will also seek information from Maltese authorities.  The Maltese Rescue Coordination Centre run by the Armed Forces of Malta is in possession of relevant information pertaining to incidents within the Maltese Search and Rescue Area where many (perhaps most?) of the migrant deaths have occurred.

Click here and here for COE press statements.

Click here for link to COE’s web page regarding “PACE’s Response to Migrants and refugees arriving from North Africa.”

Click here and here for my previous posts on the topic.

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by | 01 Sep 2011 · 06:20

3rd Anniversary of Italy-Libya Treaty on Friendship, Partnership and Co-operation

This past Tuesday, 30 August, marked the third anniversary of the signing of the Treaty on Friendship, Partnership and Co-operation by Italy and Libya.  The Agreement was signed in Benghazi in 2008 by Prime Minister Silvio Berlusconi and then Libyan leader Gaddafi.  The Agreement included a provision calling for the “intensification of the ongoing cooperation in the context of the fight against terrorism, organized crime, drug trafficking and clandestine migration.” (See p. 2 of UNHCR’s Third Party submission to the European Court of Human Rights in the case of Hirsi and Others v. Italy (Application no. 27765/09) for more information regarding the history of the Agreement.)  The Agreement, which included a provision for the payment by Italy to Libya of $5 billion in compensation for colonial occupation, paved the way for Libya’s implementation of the  provisions of an earlier agreement signed in December 2007 which provided the basis for joint Italy-Libya maritime patrols and Italy’s so-called “push-back” practice.  The first push-back operations began in May 2009.  As I’ve noted in previous posts, the Libyan NTC has given Italy assurances that a new Libyan government will honour the terms of the Friendship Agreement.

Click here (IT), here (EN), and here (EN) for articles from 2008.

Click here for UNHCR’s Third Party Submission to the ECtHR in the Hirsi case.

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by | 28 Aug 2011 · 05:49

UNHCR: Sub-Saharan Africans Targeted in Libya; 2 IOM Ships Evacuate Migrants from Tripoli

UNHCR said Friday that reports are emerging from Tripoli that “people being targeted because of their colour as the city fell to rebel forces”; UN High Commissioner for Refugees António Guterres called for sub-Saharan Africans to be protected.  “The High Commissioner has urged restraint from rebel forces and Libyan civilians. ‘We have seen at earlier stages in this crisis that such people, Africans especially, can be particularly vulnerable to hostility or acts of vengeance,’ he said.  ‘It is crucial that humanitarian law prevails through these climactic moments and that foreigners – including refugees and migrant workers – are being fully and properly protected from harm,’ he stressed.”

IOM has chartered ships in order to evacuate migrants from Tripoli to Benghazi.  According to IOM, 263 people were evacuated from Tripoli on Thursday night.  “Among those evacuated were Egyptians, Lebanese, Algerians, Filipinos, Americans, Swiss, Lebanese, Italians, Indians, Sudanese, a German, a Canadian and an Iraqi.”  A second IOM-chartered ship, probably the Fehim Bay (which according to MarineTraffic.com is currently a Moldovan flagged ship), was scheduled to evacuate a larger group of migrants on Saturday.  According to AIS tracking information, the ship as of Sunday morning is en route to Benghazi.  IOM reported that “the second evacuation operation will aim to assist groups of Bangladeshi, Chinese, Filipino, Indian and Egyptian migrants.”

From IOM statements: “IOM staff in Tripoli say that getting migrants scattered across [Tripoli] to the port is the single most challenging issue of the operation.  Continued fighting in parts of the city, the many checkpoints and sniper fire represent the main obstacles to movement within the city as well as lack of fuel.  ‘Movement is extremely slow as well as dangerous. Crossing checkpoints manned by different groups with different demands is very challenging,’ says IOM Regional Director for the Middle East and North Africa Pasquale Lupoli. ‘And then there are snipers.’  Although IOM managed to get the 263 migrants to the port through arrangements with some concerned embassies and other parties, the Organization remains deeply concerned that migrants who want and need evacuation assistance may not be able to get it because they cannot get to the port. Some, such as Sub-Saharan Africans, are largely on the outskirts of Tripoli and far from the port vicinity.”

Click here for UNHCR press statement.

Click here and here for IOM press statements.

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by | 26 Aug 2011 · 04:42

10th Anniversary of Australia’s Tampa Affair

Today, 26 August, marks the ten year anniversary of the beginning of the Tampa affair in Australia.  On 26 August 2001, the Norwegian cargo ship Tampa responded to a distress call issued by the Australian Rescue Coordination Centre and rescued over 430 Afghan asylum seekers from a sinking migrant boat.  Australian Prime Minister John Howard’s government refused to permit the Tampa to offload the rescued asylum seekers on Christmas Island, the closest place of safety.  After a several day stand-off, the Tampa’s captain declared an emergency and entered Australian territorial waters.  Australian SAS special forces boarded the Tampa and took control of the ship.  The asylum seekers were eventually transferred to a naval vessel and sent to Nauru where they were detained.  The incident marked the beginning of Australia’s so-called Pacific Solution policy.

Here is an excerpt from UNHCR’s 2006 State of the World’s Refugees report describing the incident:

“A recent renowned rescue at sea was carried out by the Norwegian merchant ship Tampa in August 2001. Sailing from Perth, Australia under the command of Captain Arne Rinnan, the freighter of the Wallenius Wilhelmsen Line received a call for assistance from the Rescue Coordination Centre of the Australian Maritime Safety Authority. The Tampa changed course and was guided by an Australian coastal search airplane to reach an Indonesian boat crowded with passengers and in acute distress. The boat was breaking up in heavy seas as the Tampa arrived just in time to transfer the 433 people on board to its own decks. The Norwegian ship had facilities on board for only 50 people, including its crew of 27.

The closest port to the site of the rescue was on Christmas Island, an Australian territory, but Australia’s Immigration Department forbade the Tampa to enter Australian territorial waters. The Australian government was determined to stop unauthorized arrivals of asylum seekers, and so refused to disembark the Tampa‘s passengers and permit the vessel to proceed on its scheduled route. After long and tense negotiations – during which conditions on board the Tampa reached crisis proportions – a complicated and costly arrangement saw the passengers forcibly removed from the ship and dispersed to camps in Nauru, a small state nearby. Some 132 unaccompanied minors and families were accepted by New Zealand, where almost all received refugee status. None went directly to Australia. In this long process, the owners and agents of the Tampa incurred substantial losses.

At the time, the obligation to render assistance to vessels in distress was codified in international maritime law in such instruments as the UN Convention on the Law of the Sea (1982) and the International Convention on Maritime Search and Rescue (1979). The obligation to extend aid applies without regard to the nationality, status, or circumstances of the persons in distress. Under these rules, ship owners, ships masters, coastal nations and flag states (the states where ships are registered) all have responsibilities for search and rescue.

The International Convention on Search and Rescue mandates that a rescue is not complete until the rescued person is delivered to a place of safety. That could be the nearest suitable port, the next regular port of call, the ship’s home port, a port in the rescued person’s own country, or one of many other possibilities. The convention provides that ‘a situation of distress shall be notified not only to consular and diplomatic authorities but also to a competent international organ if the situation of distress pertains to refugees or displaced persons.’ The ship itself cannot be considered a ‘place of safety’ – indeed, carrying a large number of unscheduled passengers could endanger the crew and passengers themselves, owing to overcrowding, insufficient food and water and the tensions of life at close quarters.

The inability to disembark rescued passengers in a timely fashion and return to scheduled ports of call lead to strong reluctance in the maritime industry to engage actively in search and rescue missions. For their principled actions in the face of such profound disincentives, in 2002 UNHCR gave the captain, crew and owner of the Tampa its highest award, the Nansen Refugee Award.

The Tampa affair helped focus international attention on the question of who has responsibility for accepting asylum seekers rescued at sea, adjudicating their claims, and providing a place of safety for those who are confirmed in their need for international protection. In 2002, the general assembly of the International Maritime Organization (IMO) adopted a resolution seeking to identify any gaps, inconsistencies and inadequacies associated with the treatment of persons rescued at sea. IMO solicited the input of a number of UN agencies in a search for a coordinated approach to the issue.

Consequently, in 2004 IMO’s Maritime Safety Committee adopted pertinent amendments to the International Convention for Safety at Sea and the International Convention on Maritime Search and Rescue. (These amendments are to enter into force on 1 July 2006.) At the same session, the committee adopted the current Guidelines on the Treatment of Persons Rescued at Sea. The purpose of these amendments and the current guidelines is to ensure that persons in distress are assisted, while minimizing the inconvenience to assisting ships, and to safeguard the continued integrity of the International Convention on Maritime Search and Rescue.

The amendments impose upon governments an obligation to cooperate to ensure that captains of ships that have rescued persons in distress at sea are released from their obligations with the minimum further deviation from the ship’s intended route. The government or party responsible for maritime safety and rescue where survivors are recovered is responsible for ensuring that a place of safety is provided. The guidelines, on the other hand, aim to help governments and masters of ships fulfil their legal and humanitarian obligations to persons rescued at sea.”

Click here and here for articles.

Click here for Wikipedia entry on the Tampa Affair.

Click here for UNHCR 2006 State of the World’s Refugees report.

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