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Europe/Africa: Court Rules for Boat Migrants' Rights
AfricaFocus Bulletin
Mar 7, 2012 (120307)
(Reposted from sources cited below)
Editor's Note
The European Court of Human Rights has ruled that the rights
of a group of Somali and Eritrean nationals who were
intercepted by Italian Customs boats and returned to Libya
in 2009 were violated, under several provisions of the
European Convention on Human Rights. Although this historic
decision of the court was for a case under Italy's agreement
with the Qaddafi regime, it has clear ongoing relevance, as
refugees and other migrants continue to face real threats in
their countries of origin, as well as in Libya.
This AfricaFocus Bulletin contains three short commentaries,
with background explanations, on this significant court
ruling, from the UK Human Rights Blog
(http://ukhumanrightsblog.com), the European Convention on
Human Rights Blog (http://echrblog.blogspot.com), and the
Open Society blog (http://blog.soros.org).
AfricaFocus has covered the situation of migrants from other
African countries in Libya in previous bulletins, including
http://www.africafocus.org/docs09/er0911a.php (in 2009),
http://www.africafocus.org/docs10/migr1008.php (in 2010),
and http://www.africafocus.org/docs11/na1103.php and
http://www.africafocus.org/docs11/migr1104a.php (2011).
Notably human rights abuses against migrants in Libya, which
were prevalent during the Qaddafi regime, escalated during
the civil war in 2011, with migrants suffering from both
sides, but particularly from anti-Qaddafi forces who cited
the use of Qaddafi of some sub-Saharan African migrants as
mercenaries.
Similar abuses continue today, as documented in several
recent reports, including:
"Both pro- and anti-Qadhafi forces committed war crimes in
Libya," United Nations, March 2, 2012
http://www.un.org / Direct url: http://tinyurl.com/726xhfj
"'Out of Control' Militias Commit Widespread Abuses,"
Amnesty International, Feb. 16, 2012
"Libya: Hard to Stay in Country, Difficult to Return"
InterPress Service, March 2, 2012
http://allafrica.com/stories/201203020302.html
Highly recommended for detailed updates on migration from
Africa to Europe, with extensive references to other
sources, is the "Migrants at Sea" blog
http://migrantsatsea.wordpress.com/, edited by Niels W
Frenzen. Frenzen posted a detailed examination of the Hirsi
v. Italy decision, in two blog posts on Feb. 26 and Feb. 27.
For a full archive of previous AfricaFocus Bulletins on
migration issues, visit http://www.africafocus.org/migrexp.php
For an overview of migration issues by AfricaFocus editor
William Minter, written for the Nordic Africa Institute,
"African Migration, Global Inequalities, and Human Rights:
Connecting the Dots," see
http://www.africafocus.org/editor/nai-migration.php (text
version) or http://nai.diva-portal.org/smash/record.jsf?pid=diva2:442755
(pdf) The section focused on Migration and
Human Rights is at http://www.africafocus.org/editor/migr07.php
++++++++++++++++++++++end editor's note+++++++++++++++++
Italy lose in Europe over asylum seeker boat interception –
Hirsi Jamaar and Others v. Italy (Application no. 27765/09)
–
Henry Oliver
February 26, 2012
http://ukhumanrightsblog.com / Direct url:
http://tinyurl.com/7n2w75m
The European Court of Human Rights has held that a group of
Somalian and Eritrean nationals who were intercepted by
Italian Customs boats and returned to Libya fell within the
jurisdiction of Italy for the purposes of Article 1 of the
European Convention on Human Rights. The return involved a
violation of Article 3 (Anti-torture and inhumane
treatment), Article 4 of Protocol 4 (collective expulsion of
aliens), and Article 13 (right to an effective remedy). The
patrols that returned migrants to Libya were in breach of
the non-refoulement principle.
The applicants were eleven Somalian nationals and thirteen
Eritrean nationals who were part of a group of two hundred
migrants who left Libya in order to reach the Italian coast.
On 6th May 2009 Italian ships intercepted them 35 miles
south of Lampedusa and returned them to Tripoli, in Libya.
During the voyage the migrants were not told where they were
going (they assumed they were being taken to Italy), nor
were they identified.
The Italian Minister of the Interior gave a statement on 7th
May 2009 saying that the operation was the result of a
bilateral agreement with Libya and was "an important turning
point in the fight against clandestine immigration." In 2009
Italy carried out nine operations to turn migrants arriving
by sea around before they reached the Italian coast.
Between June and October 2009 fourteen of the migrants were
granted refugee status by the office of the UN High
Commissioner for Refugees in Tripoli.
Jurisdiction and Article 1
Under international law a vessel sailing the high seas is
subject to the jurisdiction of the State of the flag it is
flying. This principle is enshrined in the domestic law of
Italy, in the Navigation Code. The court did not accept
Italy's explanation that these were "rescue operations". Nor
did they accept that Italy was not responsible for what
happened to the migrants because it only exerted "minimal
control".
Citing the case of Medvedyev and Others v. France ([GC], no.
3394/03, 29 March 2010), the court observed that the events
took place entirely on board Italian ships, and the crews
were comprised of entirely Italian personnel. The migrants
were under the "continuous and exclusive de jure and de
facto control of the Italian authorities."
Therefore, the events were within Italy's jurisdiction.
Article 3
The Article 3 question has two parts:
the risk of inhuman treatment in Libya;
the danger of being returned to their countries of origin.
Degrading and Inhuman treatment in Libya
The court assessed what the "foreseeable consequences" of
removal were both in light of the general situation and
their personal circumstances. When assessing the general
situation the court attaches importance to recent reports.
The court also noted that despite the problems that southern
European states are encountering with "an influx of
migrants", they cannot be absolved of the absolute nature of
their provisions under Article 3.
The court looked at a variety of reports by organisations
such as Amnesty International, Human Rights Watch, and the
US State Department. They concurred on the fact that "no
rule governing the protection of refugees was complied with
by Libya." Anyone entering illegally was kept in inhuman
conditions: no distinction is made between clandestine
migrants and asylum seekers. The fact that Libya had
ratified international treaties guaranteeing respect for
fundamental rights was not sufficient to "ensure against the
risk of ill treatment."
Italy cannot rely on its bilateral agreement to evade its
responsibilities. The situation was "well known and easy to
verify." The Italian authorities knew or should have known
what the applicants, as irregular migrants, would have been
exposed to.
Risk of return to country of origin
It is the responsibility of the State returning the migrant
(Italy) to ensure that the intermediate State (Libya) offers
"sufficient guarantees" that the migrants won't be returned
to their country of origin (Somalia) without an assessment
of the risks. It was emphasised that when, as in this case,
the intermediate State is not a signatory to Convention the
"obligation is all the more important."
According to the UNHCR and Human Rights Watch people
forcibly repatriated to Eritrea face being tortured and
detained in inhuman conditions merely because they left the
country irregularly. In the case of Sulfi and Elmi the court
noted the levels of Mogadishu. In this case it noted that
Libya had not ratified the Geneva Convention on Refugee
Status.
It was a violation of Article 3 to return the applicants to
Libya because of the risk of arbitrary repatriation.
Article 4, Protocol 4
This article states, "collective expulsion of aliens is
prohibited." The case of Henning Becker v Denmark (no.
7011/75 decision of 3rd October 1975) defined "collective
expulsion" as,
"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
in the group."
This was the first case where the court had found that
Article 4 of Protocol 4 applied to a case involving a
removal carried out outside national territory. It had to
take account of the internal consistency and harmony of the
provisions of the Convention.
In response to the Italian government's contention that the
applicants were not on Italian territory at the time of the
transfer, and so it was not an expulsion, the court cited
Article 1, Protocol no. 7, which "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."
The purpose of the article is to prevent the expulsion of
migrants without examining their personal circumstances.
With migration increasingly occurring via the sea. The court
was not prepared to draw a conclusion that migrants at sea
could get part way there and be able to be turned around,
without consideration of their personal circumstances. That
would not be possible for migrants travelling by land.
Boat Migrants Grand Chamber Judgment
ECHR Blog
The European Convention on Human Rights and Fundamental
Freedoms
Friday, 24 Feb 2012
http://echrblog.blogspot.com / Direct url:
http://tinyurl.com/7uygokx
Yesterday, the Grand Chamber of the European Court of Human
Rights delivered judgment in an important case about one of
the most topical migration issues: irregular migrants
intercepted in the Mediterranean by ECHR state parties. In
the case of Hirsi Jamaa and others, the Court found,
unanimously, that Italy had violated three Articles of the
ECHR.
The applicants in the case were 11 Somalis and 13 Eritreans
who had been intercepted by the Italian coastguard in May
2009 when trying to cross the Mediterranean. They were
brought to Tripoli in Libya and handed over to the Libyan
authorities under an Italo-Libyan agreement. Their
identities were not checked during their time on board of
the Italian vessels.
First, the Grand Chamber had to decide whether the
applicants fell within Italy's jurisdiction (Article 1
ECHR). Italy denied that by taking them on board it had
exercised "absolute and exclusive control" over the
applicants. Rather, it argued that it had been obliged under
the UN Convention on the Law of the Sea to save human lives
on the high seas. This in itself, in Italy's view, did not
create a jurisdictional link between Italy and the rescued.
The Grand Chamber disagreed. First, it confirmed that under
the law of the sea, and under Italian law for that matter, a
ship on the high seas is under the exclusive jurisdiction of
the flag state. Secondly, states cannot avoid being held
responsible under the ECHR by framing an act as a rescue
operation under the law of the sea. Thirdly, the events took
place on vessels of Italy's armed forces manned by a crew of
Italian military personnel. The applicants were thus under
continuous and exclusive de jure and de facto control of
Italy. Thus, they fell within the jurisdiction of that state
for the whole period that they found themselves on those
Italian vessels. One could say here, that a causal legal
chain of events starts to operate once a ship operated by a
state party's authorities catch sight of a group of people
in danger at sea: the law of the sea requires to save them
and as a result these people are brought within the
jurisdiction of that state under the ECHR. Put differently,
any state attempt to push back irregular migration at sea
rather than on land does not absolve a state from its human
rights responsibilities.
Once this preliminary matter was solved, the Court turned to
the complaint of the violation of non-refoulement (the
prohibition of being sent back to places where there is a
real risk of inhuman or degrading treatment). The Court
found two violations of Article 3 ECHR. First, it concluded
that Italy had violated the Convention by exposing the
applicants to danger in Libya itself. According to many
reliable UN, Council of Europe, and NGO sources, even in the
Spring of 2009, it was "well-known and easy to verify"
(para. 131) that irregular migrants faced great dangers in
Libya. The fact that Libya had assured Italy in a bilateral
agreement that it would deal with such migrants in
conformity with international law did not detract from that.
Crucially, even if the persons involved do not explicitly
ask the state on whose ship they find themselves for asylum,
it is still the state's own obligation under the ECHR to
check whether they would not face treatment in violation of
article 3. Again, this is very important in practice: by
just avoiding to even try to find out rescued people's
nationality or legal status, a state cannot avoid being held
to account under the European Convention. Secondly, it also
found a violation by the fact that he applicants had been
exposed to the risk of being sent onwards from Libya (the
intermediary country) to their countries of origin: Somalia
and Eritrea. It is for the state (para. 147):
to ensure that the intermediary country offers sufficient
guarantees to prevent the person concerned being removed to
his country of origin without an assessment of the risks
faced. The Court observes that that obligation is all the
more important when, as in the instant case, the
intermediary country is not a State party to the Convention.
First off, the Court noted that both countries, Eritrea and
Somalia, faced "widespread serious problems of insecurity"
(para. 151). Secondly and crucially, Italy (para. 156):
knew or should have known that there were insufficient
guarantees protecting the parties concerned from the risk of
being arbitrarily returned to their countries of origin,
having regard in particular to the lack of any asylum
procedure and the impossibility of making the Libyan
authorities recognise the refugee status granted by the
UNHCR.
Thus, states cannot simply wash their hands of a situation
like this by failing to acquire information.
Also, the Court for the second time ever found a violation
of the prohibition of collective expulsion of aliens
(Article 4 of Protocol 4) - the first time was in 2002 in
the case of ?onka v. Belgium, on a group of expulsed Slovak
Roma. In Hirsi Jamaa, the Court for the first time had to
decide whether this prohibition also applied to removing
aliens extraterritorially. It answered that question in the
affirmative: Article 4 Protocol 4 contains no reference to
"territory" nor do the travaux préparatoires point in that
direction. And then follows a very important paragraph in
the Court's reasoning (para. 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 traveling by land.
Subsequently, by not carrying out any form of individual
assessment whatsoever of the persons involved, the handing
over of the applicants to Libya from the Italian ship
amounted to a collective expulsion.
Finally, the Court found a violation of the right to an
effective remedy (Article 13 ECHR) in conjunction with the
aforementioned articles. The applicants had had no access to
any procedure. There were no legal advisers or interpreters
on board nor were they given information in general about
what was going to happen.
As to the legal consequences, the Court ruled under Article
46 of the Convention (obligation to abide by the Court's
judgments, a provision not applied very often) that Italy
(para. 211) "must take all possible steps to obtains
assurances from the Libyan authorities that the applicants
will not be subjected to treatment incompatible with Article
3 of the Convention or arbitrarily repatriated." In
addition, each applicant was awarded, under Article 41 ECHR,
15,000 euros for non-pecuniary damage suffered.
The Portuguese Judge Pinto de Albuquerque attached a long
concurring opinion to the judgment which goes into the
linkages between the international human rights law and
international refugee law.
A very important judgment, upholding the absolute nature of
the non-refoulement principle in the face of new ways of
controlling migration flows by European states. Literally
pushing back the problem further from a state's territory
does not change that state's human rights obligations.
Case Watch: European Ruling Affirms the Rights of Migrants
at Sea
Posted By Simon Cox On February 27, 2012
Open Society Blog
http://blog.soros.org / Direct url:
http://tinyurl.com/6mmqxvn
The Italian government's policy of "pushing back" to the
shores of North Africa migrant boats intercepted on the open
sea has been condemned by the European Court of Human Rights
(ECHR). In its historic Hirsi v. Italy [1] judgment of
February 24, the ECHR's Grand Chamber's affirmed the duty of
states to uphold human rights aboard ships flying their flag
in international waters, and their duty to protect migrants
from being disembarked in countries where they risk
suffering serious harm.
The complaint to the court concerned Italy´s push-back
operations to Libya [2] in 2009. Then, before the Arab
Spring had begun, a group of migrants (mainly Somalis and
Eritreans) tried to make the crossing from Libya to Italy.
But they were intercepted by Italian customs and coast-guard
ships on the high seas [3] (outside Italian and Libyan
waters) and taken onto those ships. Telling the passengers
they were taking them to Italy, the ships took them instead
to Libya. When the migrants saw they were approaching Libya,
they protested, but to no avail. The Italian forces handed
them over to the Libyan authorities. A group of Eritrean and
Somali victims managed—from Libya—to instruct the Italian
lawyers of UFTDU [4] to make a complaint to the Court. The
United Nations High Commissioner for Refugees and human
rights organizations intervened [5] to support the case,
arguing that the migrants had not been given the chance to
seek refugee status as required by international
humanitarian law.
The Court's judgment deals with four important areas.
The European Convention on Human Rights [6] could only be
relied on if Italy had 'jurisdiction' over the migrants
aboard the boats under article 1 of the convention. The
Italian government argued that they did not because its
vessels were in international waters and, supposedly, on a
'search and rescue' mission. But under international law, a
state has exclusive jurisdiction over a boat flying its flag
on the high seas. This led the court to rule that, even
though outside Italian territory, the people on the boat
were subject to the jurisdiction of Italy under the
convention. The claimed 'search and rescue' mission was
irrelevant to jurisdiction.
The court decided that Italy had violated the prohibition on
torture and ill-treatment in article 3 of the convention.
The evidence available to Italy had showed that Libya was
systematically violating the human rights of irregular
migrants by inflicting torture and inhuman treatment.
Following its MSS v. Greece [7] judgment, the court said
Italy had a duty to 'find out about the treatment to which
the applicants would be exposed on return'. Second, by
sending them to Libya, the migrants were in fact exposed to
a real risk of being arbitrarily repatriated by the Libyan
authorities to Somalia and Eritrea, contrary to Italy's
obligation 'to ensure that the intermediary country offers
sufficient guarantees'. Italy's defence that it was acting
under the international law of the sea was rejected because
those rules also prohibited Italy from returning a person to
face a serious risk of ill-treatment.
The court then found a violation of the convention's
prohibition on collective expulsion of aliens in Article 4
of Protocol 4 to the Convention. This is the first case
where the court considered whether interception outside
territorial waters can be 'expulsion'. The language and
history of the convention allow such a reading and the
reality of 21st century maritime migration requires that
reading. The court held that the concept of expulsion runs
with the state's 'jurisdiction' under the convention. The
court upheld the complaint of collective expulsion for only
the second time (the first having been in Conka v Belgium
[8]).
The last violation found by the court was denial of the
right to a remedy. Article 13 of the convention gave the
migrants the right to challenge before the Italian
authorities the safety of Libya and the nature of the
expulsion. The court ruled that they were entitled 'to
obtain a thorough and rigorous assessment of their requests
before the removal measure was enforced'. Italy had a duty
to provide the remedy before the passengers were handed to
the Libyan authorities. The court singled out for criticism
the lack of interpreters and legal advisers on board the
ships.
The court ordered Italy to compensate the migrants with
15,000 Euros each. In his powerful concurring opinion, Judge
Pinto de Albuquerque called for Italy also to be ordered to
ensure their right to return to Italian jurisdiction, and to
have their requests for refugee status properly considered.
Disappointingly, the other judges refused this, requiring
Italy only to try its best to stop Libya harming or
deporting the migrants arbitrarily.
Nevertheless, this important judgment ought to dissuade
European immigration officials from attempting any more
maritime push-back operations. To be lawful, such actions
would have to ensure individualized access to a proper
asylum procedure from the ship (including interpreters and
legal advisors) and, in any event, there could be no forced
disembarkation in a state where it was clear irregular
migrants are at risk of ill-treatment. Rather than establish
asylum courts at sea, Europe should use its resources to end
the deaths at sea [9] resulting from migrants' desperate
attempts to reach its shores in often inadequate boats, and
instead secure safe and humane treatment for all.
The clear and far-reaching opinion of Judge Pinto de
Albuquerque shows the stark contrast between this result in
Strasbourg and the much criticized [10] ruling of the US
Supreme Court in Sale v. Haitian Centers Council [11], which
upheld the action of US coast-guard vessels in intercepting
and repatriating Haitian migrant boats. The judgment is
already being cited in Australia's debate over migrant boats
[12], as the country's opposition coalition argues for the
adoption of a similar "push-back" policy. By requiring
states to guarantee human rights beyond their state´s
territorial boundaries, Europe´s human rights court has
upheld the primacy of fundamental rights and the rule of
law.
AfricaFocus Bulletin is an independent electronic
publication providing reposted commentary and analysis on
African issues, with a particular focus on U.S. and
international policies. AfricaFocus Bulletin is edited by
William Minter.
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