Tag Archives: Push-Back Practice

NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey

NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.

NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.

NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.

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Filed under Aegean Sea, European Union, Frontex, General, Greece, News, Turkey

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

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

No Discussion of Refugee Protection Plan

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

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

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

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

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

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

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

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

No Reports of Human Trafficking

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

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

Notable Comments – Italy’s Navy Chief, Admiral Donato Marzano: “I intervene to help people at sea”

Italy is hosting on 8 May a high level meeting of European naval forces. In response to questions from AFP about calls for a resumption of push backs in the Mediterranean, Admiral Marzano said: “There are several countries that apply a policy of expulsion, even by force of arms, others apply the international right to rescue. I am a sailor who has spent 20 years on boats. If I find a boat adrift, I’m sorry but I don’t turn away. I intervene to help people at sea. I don’t know if this reflects my Italian culture but I do know it is international law. A vessel in difficulty, whether it is a boat full of migrants or a merchant ship, has to be assisted.”

See also ANSA: Amm.Marzano, Non mi volterò mai dall’altra parte.

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Filed under European Union, Mediterranean, News

Turkish Coast Guard Reports Intercepting 12,872 Migrants in Aegean Sea in 2014; Some Migrants Pushed-Back into Turkish Territorial Waters

“A total of 12,872 migrants trying to cross into Greece from Turkey over the Aegean Sea were captured by Turkish Coast Guard Command teams in 524 separate incidents in 2014, while 74 people were also arrested on charges of smuggling migrants, Anadolu Agency has reported. The number of migrants who were captured in 2013 was 8,047, including 6,937 on the Aegean Sea. The total number of migrants captured by authorities across Turkey in 2012 was 2,531. The official number in 2011 was 546, which means that the number of captured migrants has increased 24-fold since then. …”

An unspecified number of the intercepted migrants were reportedly subjected to push-back practices where the affected migrants were returned to Turkish territorial waters [“Yasa dışı göçmenlerin bir kısmı da ‘geri atma olayı (gittiği ülkeden Türkiye karasularına geri gönderilme)’ olarak arz edilen olaylar sonucu yakalandı.”].

The push-backs were presumably carried out by Greek patrol boats or possibly by vessels operating pursuant to Frontex Joint Operation Poseidon Sea 2013 (which operated through 2014 Q1).

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

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Filed under Aegean Sea, Data / Stats, European Union, Frontex, Greece, Migrants, Refugees, Turkey

“Mediterranean flows into Europe: Migration and the EU’s foreign policy” – Analysis by European Parliament DG for External Policies

The EP’s Directorate-General for External Policies just released an Analysis, “Mediterranean flows into Europe: Migration and the EU’s foreign policy,” in which it reviews the EU’s external policies and instruments relating to migration in the Mediterranean, including the Mediterranean Task Force established after 3 October 2013 tragedy at Lampedusa in which over 350 people died.

The Analysis describes the serious shortcomings of the security-driven approach that has been taken by the EU. Noting, for example, that “it is unclear whether the militarisation of EU border management (resulting from a tighter relation between the CSDP and Frontex) will actually save lives or create even more danger for migrants” and that “[t]he increasing militarisation of the issue of irregular migration was underscored in December 2013, when the European Council called for the establishment of an EU Maritime Security Strategy by June 2014 as well as for increased synergies between the EU’s Common Security and Defence Policy (CSDP) and freedom/security/justice actors to tackle illegal migration.”

The Analysis discusses possible ways in which the European Parliament might play a more significant role in the shaping of future policies:

“The coming months – which will include the European elections and the June 2014 Council – present an important opportunity for the EP to engage politically with the topic of migration in the Mediterranean. As outlined above, numerous EU external policies and instruments deal with migration in the region; […]

All should incorporate respect for human rights as a central concern and pursue the overall goals of prevention, protection and solidarity. The EP has tools at hand to contribute effectively to those objectives. The EP should use its co-decision powers to ensure the inclusion of human rights provisions in all migration-related legislation, and its power of consent to guarantee that international agreements contain effective human rights guarantees. The EP’s budgetary powers also allow the institution to link assistance to third countries to proper human rights monitoring mechanisms.

Most pressingly, the EP should advocate the implementation of the actions recommended by the Mediterranean Task Force set up by the Commission. The EP should also use the opportunities generated by inter-parliamentary relations (such as the 27th ACP-EU Joint Parliamentary Assembly in March and the EU-Africa summit in April) to engage in a dialogue about migration with third countries. This dialogue should foster cooperation in the management of regular migration and in the fight against irregular migration and trafficking networks, with special emphasis on the need to prevent migrants from embarking on dangerous journeys to the EU.

The dialogue should also seek to frame Mediterranean migration within a wider perspective, possibly in the following ways:

  • Steer away from excessively militarised and security-centred approaches. The EP should ensure that strict human rights standards are respected in the fight against organised crime and smugglers’ networks, and that a clear distinction is drawn between criminal networks and their victims. The EU should prevent the criminalisation of migrants and of humanitarian organisations supporting migrants.
  • Highlight the importance of good governance, and of good migration governance more specifically. By reinforcing the EU’s Regional Development and Protection Programmes, for example, the Union can develop a comprehensive and long-term framework to develop and enhance the capacities of migration management and national asylum systems in Mediterranean countries.
  • Demand full respect for humanitarian law, refugee protection and human rights (including the rights of non-nationals) in crisis situations, and stress that humanitarian access must be guaranteed to provide life-saving supplies.
  • Recognise the importance and challenges that South-South and intra-African migration represent for countries in the southern Mediterranean, rather than focussing solely on the (much smaller) flows towards the EU.
  • Encourage further research on the migration-development nexus and explore the positive impact of human mobility on socioeconomic development.
  • Encourage EU Member States to facilitate and speed up their procedures to grant asylum and EU protected status, whilst better differentiating between refugees and irregular migrants. The EP should respect the competence of the Member States in this regard, but could also encourage Member States – in cooperation with the UNHCR – to increase their quotas for resettling refugees not adequately protected in third countries. The EP should support the Mediterranean Task Force’s proposed feasibility study on the joint processing of protection claims outside the EU, and the Commission’s proposal to move towards a common approach for humanitarian permits and visas.

All these actions would contribute to reshaping the EU’s external action related to migration, notably in the Mediterranean. They would also enhance the EU’s credibility vis-à-vis those third countries that accept significant number of migrants and refugees, and that most directly bear the consequences of their neighbours’ conflicts. (This is the case today for Lebanon and Turkey, as a result of the Syrian civil war). A modified EU approach could also project a more nuanced and positive view of migration – a change that might, in turn, influence the way migration is perceived more broadly within the EU.”

Click here or here for the Analysis.

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Filed under Analysis, European Union, Frontex, Greece, Italy, Libya, Malta, Mediterranean, Turkey

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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Filed under Aegean Sea, Analysis, Eastern Atlantic, European Union, Frontex, Italy, Libya, Malta, Mauritania, Mediterranean, Senegal, Spain

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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Filed under Analysis, European Union, Italy, Libya, Malta, Mediterranean