Tag Archives: Hirsi v Italy

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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ECtHR: Italy’s Use of Summary Procedures to Return Tunisian Migrants Constituted Unlawful Collective Expulsion

The ECtHR, Second Section, issued a judgment on 1 September in Khlaifia et autres c. Italie (Requête no 16483/12) (official judgment in French) finding that the summary procedures used by Italy in 2011 to quickly return thousands of Tunisians who were reaching Italy by sea during the height of the Arab Spring violated the prohibition of collective expulsion of aliens contained in Art. 4 of Protocol 4 of the ECHR. (Judges SAJÓ and VUĊINIĊ did not find that collective expulsion had occurred and filed a dissenting opinion.) The Court also found violations of Art. 3, Art. 5, §§ 1, 2, 5, and Art. 13 (inhuman or degrading treatment, failure to promptly explain basis for detention, inability to challenge detention, lack of an effective remedy).

This is the fifth time that the ECtHR has found a violation of the collective expulsion prohibition. (See Čonka v. Belgium, no. 51564/99, § 62-63, ECHR 2002‑I; Georgia v. Russia (I) [GC], no. 13255/07, § 175, ECHR 2014;  Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 185, ECHR 2012; Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014.)

The Court acknowledged that unlike the applicants in Hirsi Jamaa, the Tunisian applicants in Khlaifia had been subjected to individualized identification and processing by Italian authorities, but under the circumstances the Court did not consider an identification procedure standing alone to be sufficient:

“156. [T]he Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. … [T]he expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these [expulsion] orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; [Italy’s] bilateral agreements with Tunisia … have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.”

The procedures at issue occurred during the 2011 Arab Spring when North Africa and the EU experienced significant movements of migrants and refugees. The Court took note of these exceptional circumstances but made clear that such circumstances do not excuse a state from complying with its obligations under the ECHR.  (See paras 127-128.)

The Court’s judgment should serve as a caution to the European Commission, EASO, Frontex, and EU member states as they consider new streamlined procedures to process the refugees and migrants reaching Europe; procedures must provide for meaningful individualized processing and individuals must be afforded a meaningful opportunity to challenge an expulsion order, among other requirements. The dissenting opinion of Judges SAJÓ AND VUĊINIĊ (in English), concluding that there had not been a collective expulsion, is well reasoned and reviews the history of the collective expulsion prohibition.

This is an excerpt from the Court’s judgment. The official version is only available in French, the English translation is mine:

“2. Appréciation de la Cour
2. Findings of the Court

153. La Cour observe qu’en l’espèce les requérants ont fait l’objet de décrets de refoulement individuels. Ces derniers étaient cependant rédigés dans des termes identiques, les seules différences étant les données personnelles des destinataires.

153. The Court observes that in this case the applicants were the subject of individual expulsion orders. They were, however, drafted in identical terms, the only differences being the personal information of the recipients.

154. La Cour a déjà précisé que le fait que plusieurs étrangers fassent l’objet de décisions semblables ne permet pas en soi de conclure à l’existence d’une expulsion collective lorsque chaque intéressé a pu individuellement exposer devant les autorités compétentes les arguments qui s’opposaient à son expulsion. La Cour a également jugé qu’il n’y a pas violation de l’article 4 du Protocole no 4 si l’absence de décision individuelle d’éloignement est la conséquence du comportement fautif des personnes intéressées (Hirsi Jamaa et autres, précité, § 184).

154. The Court has already held that the fact that multiple foreigners are subject to similar decisions does not in itself lead to the conclusion that there was collective expulsion when each person was individually able to present arguments against expulsion to competent authorities. The Court has also held that there is no violation of Article 4 of Protocol No. 4 if the absence of individual expulsion decisions is due to the wrongful conduct of the affected persons (Hirsi Jamaa and Others, cited above, § 184).

155. La Cour relève de surcroît qu’à la différence de l’affaire Hirsi Jamaa et autres (précité, § 185), en l’espèce, à l’instar des autres migrants débarqués sur l’île de Lampedusa en septembre 2011, les requérants ont fait l’objet d’une procédure d’identification. Le Gouvernement le souligne à juste titre (paragraphe 152 ci-dessus). Les requérants reconnaissent par ailleurs qu’immédiatement après leur débarquement à Lampedusa, les autorités de frontière italiennes ont enregistré leur identité et relevé leurs empreintes (paragraphe 149 ci dessus).

155. The Court further notes that, unlike the case of Hirsi Jamaa and Others (cited above, § 185), in this case, like the other migrants who landed on Lampedusa in September 2011, the applicants were the subject of an identification procedure. The Government rightly points this out (paragraph 152 above). The applicants also recognize that immediately after landing in Lampedusa, the Italian border authorities registered their identity and took their fingerprints (paragraph 149 above).

156. La Cour est cependant d’avis que la simple mise en place d’une procédure d’identification ne suffit pas à exclure l’existence d’une expulsion collective. Elle estime de surcroît que plusieurs éléments amènent à estimer qu’en l’espèce l’expulsion critiquée avait bien un caractère collectif. En particulier, les décrets de refoulement ne contiennent aucune référence à la situation personnelle des intéressés ; le Gouvernement n’a produit aucun document susceptible de prouver que des entretiens individuels portant sur la situation spécifique de chaque requérant auraient eu lieu avant l’adoption de ces décrets ; un grand nombre de personnes de même origine a connu, à l’époque des faits incriminés, le même sort des requérants ; les accords bilatéraux avec la Tunisie (paragraphes 28-30 ci dessus) n’ont pas été rendus publics et prévoyaient le rapatriement des migrants irréguliers tunisiens par le biais de procédures simplifiées, sur la base de la simple identification de la personne concernée de la part des autorités consulaires tunisiennes.

156. However, the Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. It considers moreover that several factors lead to the consideration in this case that the expulsion at issue was indeed of a collective nature. In particular, the expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; the bilateral agreements with Tunisia (see paragraphs 28-30 above) have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.

157. Cela suffit à la Cour pour exclure l’existence de garanties suffisantes d’une prise en compte réelle et différenciée de la situation individuelle de chacune des personnes concernées (voir, mutatis mutandis, Čonka, précité, §§ 61-63).

157. This is sufficient for the Court to rule out the existence of sufficient guarantees of a genuine and differentiated consideration of the individual circumstances of the persons involved (see, mutatis mutandis, Čonka, cited above, §§ 61-63).

158. Au vu de ce qui précède, la Cour conclut que l’éloignement des requérants a revêtu un caractère collectif contraire à l’article 4 du Protocole no 4. Partant, il y a eu violation de cette disposition.

158. In view of the foregoing, the Court concludes that the expulsion of the applicants took on a collective character contrary to Article 4 of Protocol No. 4. Accordingly, there has been a violation of this provision.
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Statewatch Analysis – “New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

Statewatch last month released a new Analysis of the EU Regulation for Frontex-coordinated surveillance of external sea borders which is scheduled for a plenary vote in the European Parliament in April.  The Analysis, written by Prof. Steve Peers, Univ. of Essex Law School, reviews the enhanced protections to be afforded to intercepted or rescued migrants relative to the earlier Council Decision which was annulled by the CJEU.  The Analysis also highlights concerns with various provisions within the Regulation, including:

  • One significant concern with the Regulation is due to the fact that “the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States.”  (Frenzen’s Note: This raises a serious concern in regard to the push-back and interception practices which have been carried out for many years within the territorial waters of Mauritania and Senegal within Frontex’s Operation Hera.  Additionally, prior to the Libyan revolution, Libya authorised Italy to conduct joint maritime patrols within Libyan territorial waters.  It is safe to assume that Frontex and some EU Member States will continue to seek the ability to intercept migrant boats within the territorial waters of third States.);
  • While the Regulation requires that migrants intercepted in the territorial sea or contiguous zone of an EU Member State be disembarked in that Member State, “this [requirement] is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.”;
  • While the bulk of the EU’s asylum legislation does not apply [to interceptions which occur outside of the territorial sea of a Member State,] the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects….”;
  • Member States are required to “use all means” to identify intercepted migrants, assess their particular circumstances, and inform them of the intended place of disembarkation, in order to give the migrants the opportunity to assert a non-refoulement claim.  The Regulation states that the Frontex operational plan, “where necessary,” must provide for interpreters and legal advisors on shore. “[T]he Council Presidency points out the ‘wiggle room’ granted by the words ‘where necessary’ and ‘use all means.’”

Click here or here for Statewatch Analysis.

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Italy Conducted De Facto Push-Back of Migrants By Ordering Cargo Ship to Rescue and Transport Migrants to Libya

Just over a week ago Italian search and rescue authorities directed two commercial ships, an oil tanker and a cargo ship, to rescue two groups of migrants in distress off the Libyan coast.  After taking the migrants on board, both ships were ordered to transport the migrants to Libya.  One ship’s captain complied with the order and 96 migrants were turned over to Libyan authorities; the other captain refused and a several day stand-off between Malta and Italy resulted before Italy agreed to allow the migrants to be disembarked on Italian territory (see Malta Today: Malta blocks rescue ship from entering Malta waters; Malta orders ship to sail to Libya; Conditions on rescue ship worsen). 

The incident involving the two ships was by no means rare and what transpired raises a host of important issue. It is obviously good that one ship was permitted to disembark the rescued migrants on Italian territory.  But what transpired with the second ship that returned the rescued migrants to Libya is extremely problematic and amounted to a push-back.  Neither Italy nor Malta should be able to evade their responsibilities to consider asylum claims by ordering commercial ships to engage in rescue operations and then issuing orders to those commercial ships to return potential asylum seekers to a country such as Libya which is not a signatory to the Refugee Convention.

I copy below my recent commentary from Malta Today:

Was the captain of the Salamis right?

We asked Prof. Niels Frenzen about the legal implications of commercial ships effecting the rescue of migrants at sea on behalf of coastal states.

One week ago Italian search and rescue authorities directed two commercial ships, the Liberian-flagged oil tanker Salamis and the Turkish cargo ship Adakent, to divert from their courses to rescue two groups of migrants in distress off the Libyan coast.  Rescues like this take place almost daily, though most are conducted by national armed forces or coastguards.  Rescue operations conducted by commercial vessels raise different legal issues, one of the most important and problematic being where are the rescued persons to be disembarked.

And while disputes periodically arise between Italy and Malta when patrol boats belonging to the armed forces of one country have sought to disembark rescued persons in the other country – usually due to disagreement as to where the closest safe port is located in relation to the place of rescue – at the end of the day if the stand-off is not resolved, an AFM or Guardia di Finanza patrol boat is always able to disembark rescued survivors in their respective home ports.  This is not the case when commercial ships rescue survivors as was demonstrated by Malta’s decision not to permit the Salamis to enter Maltese waters for the purpose of disembarking the 102 rescued migrants.

Some government officials characterised the initial decision of the captain of the Salamis to attempt to disembark the rescued migrants in Malta as a violation of international law.  Such an assertion is inaccurate and fails to take into consideration the complicated framework of different international laws – search and rescue, human rights, and refugee – which come in to play when migrants are rescued or otherwise encountered in international waters, particularly when it is likely that there are asylum seekers or other persons in need of protection among the rescued persons. 

While Malta’s decision to bar the Salamis attracted significantly more international media attention than the events pertaining to the Adakent, these two incidents and the different resolutions highlight important legal issues.  After the two ships rescued and took on board the different groups of migrants, Italian authorities instructed both ships to disembark the rescued migrants in Libya because the migrants had departed from Libya.  The Adakent sailed to Tripoli – its planned destination before the rescue – and turned 96 rescued migrants over to Libyan authorities.  The captain of the Salamis disregarded Italy and Malta’s orders to sail to Libya and continued to sail towards Malta – its planned destination before the rescue.

Both ship captains properly carried out their clear legal obligation under international law to rescue the stranded migrants. The more difficult legal question is where should the rescued persons be taken once rescue operations are completed.  While international law does not explicitly answer the question, it does impose the obligation on a ship’s captain to disembark persons only in “a place of safety.” Since the 102 migrants rescued by the Salamis included Eritreans and Ethiopians it is clear that many of them were asylum seekers and therefore the captain was legally obligated to ignore the Italian and Maltese orders that the migrants be returned to Libya.

Assuming some or all of the 96 migrants rescued by the Adakent were also asylum seekers, the Adakent’s captain likewise should have disregarded Italian instructions to return the migrants to Libya.  Both the UNHCR and the International Maritime Organization (IMO) have issued guidelines to ship captains addressing the situations faced by the Salamis and Adakent.  The guidelines are based on the Search and Rescue Convention and the Refugee Convention and provide that if there is some reason to believe that a rescued person is an asylum seeker, the captain is obligated to take that fact into consideration when making a decision as to where to disembark the survivor.

Malta and Italy are well aware that many if not most migrants departing Libya by boat are asylum seekers and are also aware that many of the asylum claims will be granted if the asylum seeker is successful in lodging an application.  Had these two rescues been carried out by AFM or Guardia di Finanza patrol boats rather than the two commercial ships, the patrol boats would have been under a clear legal obligation to disembark the rescued migrants in a location where asylum or other claims for international protection could be properly considered.

The 2012 decision in the Hirsi v Italy case by the European Court of Human Rights condemned the Italian push-back practice which resulted in asylum seekers being returned to Libya without being given an opportunity to make asylum claims.  Neither Italy nor Malta can evade their responsibilities to consider asylum claims by diverting commercial ships to engage in rescue operations and then issuing orders to those commercial ships to return potential asylum seekers to a country such as Libya which is not a signatory to the Refugee Convention and does not provide an adequate alternate procedure to consider claims for protection.

There can be honest disagreement about where rescued migrants are to be disembarked as long as the survivors will be safe and protected when disembarked.  The Search and Rescue Convention obligates countries to coordinate and cooperate among themselves to permit rescuing ships to disembark rescued persons. Malta and Italy as sovereign countries have the right to control their borders, but this sovereign power has to be applied in manner that is consistent with international human rights and refugee law by which they have agreed to be bound.

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

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

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

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

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

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

Click here for full statement.

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AI Report: S.O.S. Europe – Human Rights and Migration Control

Amnesty International today has released a report, “S.O.S. Europe: Human Rights and Migration Control,” examining “the human rights consequences for migrants, refugees and asylum-seekers that have occurred in the context of Italy’s migration agreements with Libya.”

The Report is accompanied by the “the launch of Amnesty International’s ‘When you don’t exist campaign‘, which … seeks to hold to account any European country which violates human rights in enforcing migration controls. When you don’t exist aims to defend the rights of migrants, refugees and asylum-seekers in Europe and around its borders. …  Today, Europe is failing to promote and respect the rights of migrants, asylum-seekers and refugees. Hostility is widespread and mistreatment often goes unreported. As long as people on the move are invisible, they are vulnerable to abuse. Find out more at www.whenyoudontexist.eu.”

Excerpts from S.O.S. Europe Report:

WHAT IS EXTERNALIZATION?

Over the last decade, European countries have increasingly sought to prevent people from reaching Europe by boat from Africa, and have “externalized” elements of their border and immigration control. …

European externalization measures are usually based on bilateral agreements between individual countries in Europe and Africa. Many European countries have such agreements, but the majority do not publicize the details. For example, Italy has co-operation agreements in the field of “migration and security” with Egypt, Gambia, Ghana, Morocco, Niger, Nigeria, Senegal and Tunisia,2 while Spain has co-operation agreements on migration with Cape Verde, Gambia, Guinea, Guinea-Bissau, Mali and Mauritania.3

At another level, the European Union (EU) engages directly with countries in North and West Africa on migration control, using political dialogue and a variety of mechanisms and financial instruments. For example in 2010, the European Commission agreed a cooperation agenda on migration with Libya, which was suspended when conflict erupted in 2011. Since the end of the conflict, however, dialogue between the EU and Libya on migration issues has resumed.

The European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the EU (known as FRONTEX) also operates outside European territory. FRONTEX undertakes sea patrols beyond European waters in the Mediterranean Sea, and off West African coasts, including in the territorial waters of Senegal and Mauritania, where patrols are carried out in cooperation with the authorities of those countries.

The policy of externalization of border control activities has been controversial. Critics have accused the EU and some of its member states of entering into agreements or engaging in initiatives that place the rights of migrants, refugees and asylum-seekers at risk. A lack of transparency around the various agreements and activities has fuelled criticism.

This report examines some of the human rights consequences for migrants, refugees and asylum seekers that have occurred in the context of Italy’s migration agreements with Libya. It also raises concerns about serious failures in relation to rescue-at-sea operations, which require further investigation. The report is produced as part of wider work by Amnesty International to examine the human rights impacts of European externalization policies and practices.

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AGREEMENTS BETWEEN ITALY AND LIBYA

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The implementation of the agreements between Libya and Italy was suspended in practice during the first months of the conflict in Libya, although the agreements themselves were not set aside. While the armed conflict was still raging in Libya, Italy signed a memorandum of understanding with the Libyan National Transitional Council in which the two parties confirmed their commitment to co-operate in the area of irregular migration including through “the repatriation of immigrants in an irregular situation.”8 In spite of representations by Amnesty International and others on the current level of human rights abuses, on 3 April 2012 Italy signed another agreement with Libya to “curtail the flow of migrants”.9 The agreement has not been made public. A press release announced the agreement, but did not include any details on the measures that have been agreed, or anything to suggest that the present dire human rights predicament confronting migrants, refugees and asylum-seekers in Libya will be addressed.

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HUMAN RIGHTS OBLIGATION BEYOND BORDERS

Human rights and refugee law requires all states to respect and protect the rights of people within their jurisdiction: this includes people within the state’s territorial waters, and also includes a range of different contexts where individuals may be deemed to be within a certain state’s jurisdiction.

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States must also ensure that they do not enter into agreements – bilaterally or multilaterally – that would result in human rights abuses. This means states should assess all agreements to ensure that they are not based on, or likely to cause or contribute to, human rights violations. In the context of externalization, this raises serious questions about the legitimacy of European involvement – whether at a state-to-state level or through FRONTEX – in operations to intercept boats in the territorial waters of another state, when those intercepted would be at a real risk of human rights abuses.

A state cannot deploy its official resources, agents or equipment to implement actions that would constitute or lead to human rights violations, including within the territorial jurisdiction of another state.

CONCLUSION

Agreements between Italy and Libya include measures that result in serious human rights violations. Agreements between other countries in Europe and North and West Africa, and agreements and operations involving the EU and FRONTEX, also need to be examined in terms of their human rights impacts. However, with so little transparency surrounding migration control agreements and practices, scrutiny to date has been limited.

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RECOMMENDATIONS

Amnesty International urges all states to protect the rights of migrants, refugees and asylum-seekers, according to international standards, This report has focused on Italy.

THE ITALIAN GOVERNMENT SHOULD:

  • set aside its existing migration control agreements with Libya;
  • not enter into any further agreements with Libya until the latter is able to demonstrate that it respects and protects the human rights of refugees, asylum seekers and migrants and has in place a satisfactory system for assessing and recognizing claims for international protection;
  • ensure that all migration control agreements negotiated with Libya or any other countries are made public.

EUROPEAN COUNTRIES AND THE EU SHOULD:

  • ensure that their migration control policies and practices do not cause, contribute to, or benefit from human rights violations;
  • ensure their migration control agreements fully respect international and European human rights and refugee law, as well as the law of the sea; include adequate safeguards to protect human rights with appropriate implementation mechanisms; and be made public;
  • ensure their interception operations look to the safety of people in distress in interception and rescue operations and include measures that provide access to individualized assessment procedures, including the opportunity to claim asylum;
  • ensure their search-and-rescue bodies increase their capacity and co-operation in the Mediterranean Sea; publicly report on measures to reduce deaths at sea; and that Search and Rescue obligations are read and implemented in a manner that is consistent with the requirements of refugee and human rights law.”

Click here (EN), here (EN), or here (FR) for Report.

See also www.whenyoudontexist.eu

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

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

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

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

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

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

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

The Court rejected Italy’s interpretation:

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

[***]

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

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

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

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

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

[***]

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

[***]

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

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

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

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

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

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

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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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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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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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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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Oxford Law Workshop: Governing Forced Migration by Sea: A Legal Perspective (Oxford, 18 Nov)

Limited places were available as of 6 November.  If interested, register ASAP.

“In the past decades, the phenomenon of ‘boat migration’ has increasingly been perceived as a problem. In the absence of a detailed legal regime, coastal states have adopted their own regulatory approaches, challenging at times the basis of their international obligations. In light of recent developments, including the flows of refugees fleeing the war in Libya, the increasingly important role played by the EU in this context, and the expected decision by the European Court of Human Rights in the case of Hirsi v Italy, the workshop, through an extensive analysis of the legal framework, aims at detecting both the potentialities and shortcomings of the regime currently governing forced migration by sea, so that possible solutions and spaces for improvement may be identified.

The workshop will take place at the Old Library, All Souls College, Oxford, on Friday 18 November 2011. Places are limited and registration to violeta.morenolax@st-hildas.ox.ac.uk or irini.papanicolopulu@law.ox.ac.uk is essential.

Programme: 10h Welcome address by Chair Vaughan Lowe 10h15 Guy S Goodwin-Gill: Introduction to Key Issues on Forced Migration by Sea 10h45 Efthymios Papastavridis: The Law of the Sea and Forced Migration 11h15 Coffee Break 11h30 Seline Trevisanut: Non-Refoulement at Sea 12h Discussion on the morning session/ Q&A 13h Lunch 14h Violeta Moreno Lax: Joint Operation Hermes 14h30 Irini Papanicolopulu: Hirsi v Italy 15h Tullio Treves : Conclusions – Cross-fertilization as a Potential Solution 15h30 Discussion on the afternoon session/ Q&A.  Organised by Oxford Law Faculty

Click here for link.

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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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Hirsi v Italy: UNHCR’s Oral Intervention Before ECtHR Grand Chamber

UNHCR released the text of its oral submission as a third party intervener before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09.  The oral submission was made by Madeline Garlick, Head of Policy and Legal Support Unit, Bureau for Europe.

Note UNHCR’s disagreement with the Government of Italy’s position on the extraterritorial applicability of Article 4 of Protocol 4’s prohibition of collective expulsion:  “Although it is of primary importance to this case, UNHCR today will not address Article 4 of Protocol 4 of the European Convention on Human Rights, since the Office of the United Nations High Commissioner for Human Rights covers it comprehensively in its written submission. UNHCR supports and shares the views expressed in that submission, holding that the prohibition of collective expulsion is at stake in this case including in relation to extraterritorial acts.”

Click here for the full text of UNHCR’s oral submission.

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