Op-ed by Jens Dieckmann, Senior-Partner of Becher & Dieckmann–Rechtsanwälte (Bonn, Germany). He represented clients at the ICTY and ICC and is currently assigned Common Legal Representative, Associate Counsel, for victims in the ICC Banda case.
On June 3, a wake-up call shook the world; Juan Branco, a French Lawyer who formerly worked at the International Criminal Court (ICC) and is currently part of the legal team of WikiLeaks’ Founder Assange, and Omer Shatz, a Professor of Law who teaches at Sciences Po University in Paris, submitted a 244-page document to the ICC, calling for a prosecution of the EU and member states for the deaths of thousands of refugees who drowned in the Mediterranean fleeing Libya. The authors call for punitive action over the EU’s deterrence-based migration policy after 2014, which allegedly “intended to sacrifice the lives of migrants in distress at sea, with the sole objective of dissuading others in similar situation from seeking safe haven in Europe”.
The right to control borders and ensure security comes with the inherent duty to effectively protect the rights enshrined in maritime, human rights and refugee laws. Ending EU’s “Mission Sophia”, which rescued almost 50,000 people, might imply an acceptance of an increased risk of further foreseeable deaths in the former EU operation area. Ending the deployment of ships to the Mediterranean since end of March 2019 meant ceasing the one positive element of Mission Sophia’s work. This alleged foreseeable increase of deaths in consequence of EU policy raises the question of accountability of the EU under the legal framework of International Criminal Law to which the authors replies affirmative.
At first glance, the strength of the legal arguments and the value of the evidence proposed cast substantial doubt on whether this Article 15 Rome Statue communication will open the door for a first ICC investigation targeting the EU, or member states (which is – by the way - not made clear by the authors).
The authors attempt to link the EU policies in the Mediterranean to the crimes committed against migrants in Libya. They argue the EU is liable for omission and as indirect co-perpetrators under a vague command-like liability towards a dolus eventualis standard (objective foreseeability of the likely outcome of actions and the acceptance thereof). Therefore, the foreseeability and acceptance of the risk that crimes will be committed as a result of the assistance to the perpetrator are fulfilled. The authors contemplate that commence of crimes rely solely on the involvement of the EU, which is an extreme conclusion as crimes in Libya were already being committed at the time of the EU involvement.
The threshold of so called Joint Criminal Enterprise (JCE3) – established by International Criminal Tribunals - remain that “(i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, (iii) the accused decided to participate in that enterprise”, even when the common plan is specifically directed at the achievement of a non-criminal goal.
However, there is doubt as to whether the authors sufficiently meet the chapeau requirement for the modes of liability, with the rather vague conception of the EU as an organisation that should hold a command-like responsible to the Libyan Coast Guard, without defining an individual responsibility required for an ICC involvement.
Therefore, an agreement between the EU and a state of alleged perpetrators of crimes against humanities (here: Libya), by means of assistance with financial support, training programs etc. for the purpose of securing boarders and rescue missions, does not easily justify the reciprocal attribution of the contributive acts to the joint perpetrators. The coordinated sum of this agreement does not result in the realisation of the objective elements of a crime, thereby failing to establish the objective requirements of the common plan, an element of criminality. Together with the argument of possible foreseeability that the assistance and ending of Mission Sophia would result in the commerce (expansion) of crimes, as more people will be left in the fate of the Libyan authorities and/or criminal organisations, potentially qualify as to accepting a very broad interpretation of the JCE3.
Even from a broad pragmatic perspective, if prosecution is feasible, this mode of liability would be extremely difficult to establish in a trial. In terms of prove, the evidence base of the communication fall short. In addition, the submission stipulates at one point that the EU had full control over each and every instance in which Libya Coast Guard (LYCG) had been commanded to intercept migrant boats, but then we learn from the attached (anonymous!) ‘expert opinion’ that the LYCG is operating as a criminal organisation which was hardly controlled by the government of Libya.
The evidence that the authors offer to prove their case is merely hearsay evidence, derived from observations by NGOs, secret reports from Wikileaks, literature, accompanied by one anonymous ‘expert opinion’ and a single victim statement. The ICC provides for “free assessment of evidence” where open source materials contribute to evidence materials which could potentially serve as a foundation to further an investigation. Ever since Lubanga and Bemba (ICC: Prosecution v Lubanga, Case No. ICC-01/04-01/06 and Prosecutor v Bemba, Case No. ICC-01/05-01/08) Trial Chamber has endorsed the approach, cautioning against affording too high a probative value to hearsay evidence but acknowledging that even anonymous hearsay evidence may be useful in corroborating other evidence in the record. The ICC does consider hearsay evidence less reliable than direct testimony, and thus it is granted less probative value.
Corroborating and authentication will be crucial to meet the chapeau for admission. Even when overcoming the obstacles and uncertainties surrounding the admission of evidence, the question remains in the fate of the discretion of the judges to give it weight.
The avenue of an Article 15 Rome Statute submission creates indeed a new and - in principal – promising opportunity for justice to the victims of the Mediterranean. For it to succeed, it remains an imperative for future submissions of this kind to establish individual responsibility for implementing governmental policies commencing in crimes against humanities. It’s worth a try!
ECRE publishes op-eds by commentators with relevant experience and expertise in the field who want to contribute to the debate on refugee rights in Europe. The views expressed are those of the author and does not necessarily reflect ECRE positions.
After fourteen days at sea the captain of the rescue vessel Sea-Watch 3 entered Italian waters to bring the group they rescued into safety. The EU and Member States are coordinating a solution but Italian authorities prevent the ship from entering the port in Lampedusa.
Captain Carola Rackete defied the refusal of Italian authorities to let the rescue vessel, which had rescued 53 people on June 12, enter Italian waters thereby risking a EUR 50 000 fine. “I know this is risky, but the 42 shipwrecked on board are exhausted. I will bring them to safety”. Despite Italian authorities warning that there was no space to dock Sea Watch 3 continued towards the port of Lampedusa and Italian authorities entered the ship. The Guardia di Finanza prevented attempts to disembark via speed boats, stating the situation will be resolved soon. Two people were disembarked due to medical emergencies.
A delegation of Italian parliamentarians boarded the ship Thursday afternoon, and said they would remain on board until the migrants were allowed to disembark. Italian interior minister Matteo Salvini said, those rescued should be taken either to Germany or to the Netherlands, where the ship and the operating organisation Sea Watch are registered.
EU Migration Commissioner Dimitris Avramopoulos said that the Commission was working closely with member states to find a solution for relocating the migrants on board Sea-Watch 3 but stressed that “a solution for the people on board is only possible once they are disembarked. This is why I hope that Italy, in this particular incident, will contribute to a swift resolution for the persons on board.”
Spain’s maritime rescue service reports that it picked up 290 migrants over the last weekend who attempted to cross the Mediterranean Sea. The Armed Forces of Malta rescued 101 people overall crossing from Libya in the course of last week. The Libyan coastguard reportedly intercepted five rubber boats carrying 199 migrants over returned them to Libya.
For further information:
- ECRE,A Contingency Plan for Disembarkation and Relocation, January 2019
- StateWatch, Working Paper: Guidelines on temporary arrangements for disembarkation, June 2019
- ECRE, Mediterranean: Deaths, Rescues and Political Manoeuvres Continue, June 2019
- ECRE,Interview: Stranded at Sea – Observations from the Deck of the Sea-Watch 3, June 2019
- ECRE, Rescue Meltdown on the Med, June 2019
- ECRE, Back and Forth on the Med: Rescues, Deaths, Interceptions, Resistance, June 2019
- ECRE, Interceptions and Reluctant Rescues on the Mediterranean, May 2019
- ECRE, Italy: Salvini Faces Headwind from Two Fronts, May 2019
- ECRE, Tragedy and Chaos Continues on the Mediterranean, May 2019
- ECRE, Continued Stand Off over Rescued Migrants Unfolds in European Waters, April 2019
- ECRE, Spain: Open Arms Search and Rescue Vessel Denied Permission to Conduct Mission, January 2019
- ECRE, Malta Charges Five Rescued Migrants with ‘Terrorist Activities’ while Facts Remain Unclear, April 2019
In six cases involving Syrian nationals with temporary subsidiary protecting status in Denmark the Asylum Appeal Board (Flygtningenaevnet) has overturned decisions by the Danish Immigration Service to withdraw or refuse the extension of residency permits.
Earlier this year the Danish Immigration Service redraw or refused to extend residency permits of six Syrian nationals on a temporary subsidiary protecting status (section 7.3 Danish Aliens Act) that was introduced in 2015. The controversial status excludes a number of basic rights that comes with other types of protection including limitations of the right to education and no right to family reunification for the first three years. The status has to be renewed and can be revoked based on a “not too temporary” improvement of the security situation in the country of origin, by Danish Asylum authorities.
In six cases, Danish Immigration Service found that there was no longer basis for granting temporary subsidiary protection status on the grounds of the general security situation in Damascus and redrew or rejected extension of residency permits. The Asylum Appeal Board however, have overturned all six decisions and granted conventional protection status (section 7.1 Danish Aliens Act) in three cases and subsidiary protection status (section 7.1 Danish Aliens Act) in three cases based on individual circumstances and the risk of persecution from the Syrian regime.
Director of Asylum for ECRE member the Danish Refugee Council (DRC) Eva Singer, stated: “This is an important ruling for the many Syrian refugees on temporary protection status who have been under threat of return. We share the position of the Asylum Appeal Board that not only the general security situation but also the individual risks of human rights violations should be considered”.
On 21 June 2019, the French Council of State ordered the northern prefecture of France to adopt sanitary measures to support around 700 migrants living around a sports hall of the commune of Grande-Synthe.
The application for interim measures had been filed by nine civil-society organisations and the commune of Grande-Synthe who demonstrated that both the inhumane living conditions of the migrants and the Government’s failure to act were a violation of the migrants’ fundamental rights. Following the decision of the Council of State, the French prefect has now eight days to adopt numerous sanitary measures such as installing water points, showers and toilets, but also to provide information to migrants on their rights in a language they understand. “It’s a real victory”, said the lawyer representing the commune of Grande-Synthe, which had called on the Government for help to provide support and address the shortcomings.
A recent report by the Human Rights Observers (HRO) project, a team of experienced volunteers from different NGOs based in the region, shows that police evictions in northern France have increased to record levels, with more than 800 forced evictions since August 2018. “These evictions only serve to add to the accumulated trauma of refugees and migrants, and aim only to create further hostility rather than offer a dignified solution”, HRO states. The report also describes the precarious living conditions on site, the loss and damage of belongings, the abusive practices and the arbitral arrests that migrants regularly face. NGOs say that the “relentless harassment” contributes to the willingness of migrants to risk the dangerous channel crossing by all means.
For further information:
- AIDA, Country report France, 2018 Update, March 2019
- ECRE, ECtHR: France Fails to Fulfill its Duty to Protect an Unaccompanied Child Breached Article 3 of the Convention, March 2019
- ECRE, France: 2 Years After the Demolition of ‘The Jungle’, Camp Clearances Continue, 26 October 2018
- ECRE, Op-Ed: The Child Refugee and the ‘Jungle’ Camps of Calais, 7 September 2018
EUROPEAN COURTS AND INTERNATIONAL MECHANISMS
The United Nations Committee on the Rights of the Child condemned Spain for the violation of children’s rights in two cases concerning age assessment of unaccompanied children. The Committee denounced the lack of legal guarantees and the insufficient consideration of the documentation provided by the applicants and ordered the provision of legal representation during age assessment and the compensation of the applicants.
The first case involved J.A.B., a Cameroonian national, who arrived to Ceuta in 2016. As he had official documentation issued by the authorities of Cameroon, he declined an age assessment, which has a significant margin of error. He was denied representation by a guardian or lawyer. The prosecutor refused to accept the validity of the documents and the applicant received a removal order.
The second case involved A.L., an Algerian national, who arrived to Almería, Spain by boat in 2017. Upon stating that he was a minor he underwent an age test, which estimated that he was “older than 19”. A.L. was subsequently detained in the Detention Centre for Foreigners (CIE) of Aluche, Madrid, pending his return to Algeria. The NGO Fundación Raíces, who supported the applicant, received copies of his identity documents from his family in Algeria and submitted them to the Court of Instruction of Almería.
The Committee recalled the fundamental importance of age assessments to ensure the best interests of the child are met. In cases of uncertainty, the individual must be given the benefit of the doubt. With regard to legal representation, the Committee held that legal guardians or representatives are an essential guarantee during the age assessment process and its denial constituted a violation of their right to be heard and Articles 3 and 12 of the Convention of the Rights of the Child.
The Committee also notes that the State party did not respect the identity of the applicant as they failed to analyse the validity of the documents provided and did not check the data with the authorities of the country of origin, a violation of article 8 of the Convention. It held that the State now had an obligation to avoid committing similar violations in the future, to ensure the age assessments of unaccompanied children are in conformity with the Convention and that the procedures take into account the documentation presented and that those affected receive legal representation.
The two cases add to Committee’s recent condemnations of Spain for push-backs (“devolución en caliente”) of unaccompanied children at the border.
For further information:
A report from the project, Visegrád Countries National Integration Evaluation Mechanism (V4/NIEM) reveals a stagnating number of beneficiaries of international protection (BIPs) in Visegrad 4 countries, and a significant drop in applications in Hungary and Poland since 2016. Further, the report confirms that negative public attitudes towards foreigners prevail.
The Visegrad 4 countries have seen a stagnation or decrease of granted international protection statuses and in 2018 the modest numbers were: Slovakia (5 excluding Subsidiary protection), Czech Republic (165), Poland (404) and Hungary (349). Further, the number of new applications in Hungary and Poland continue to drop significantly – in Hungary from 29,432 in 2016 to 671 in 2018 and in Poland from 12,350 in 2016 to 4141 in 2018.
The report also reveals negative attitudes and a lack of knowledge in the public of foreigners originating from countries outside the EU. While the average share of EU citizens with negative or fairly negative attitudes towards foreigners from countries outside the EU stands at 53 per cent the number in Poland it is 64 percent, in Hungary 75 percent in Slovakia 81 per cent, and in Czech Republic 86 per cent. The negative attitudes correlates with more than half of the populations feeling inadequately informed about the topic. The lack of knowledge illustrated by disproportionate estimates of the number of foreigners in Visegrad countries with populations in Poland and Slovakia guessing more than ten times the actual number: “The fact that the citizens of V4 countries overestimate the numbers of non-EU foreigners living in their countries so significantly shows how little our imagination has to do with reality, and how much of a role media and political discourse plays in the creation of public knowledge”, said Ondřej Novotný, coordinator of the V4/NIEM project.
Furthermore the report informs about the integration mechanism of BIPs, drawing on data from a broader NIEM comparative report, and about the current political trends regarding the refugee agenda.
For further information:
After being stranded at sea for three weeks, 64 Bangladeshi nationals have been allowed to disembark in Tunisia and are being repatriated to Bangladesh. According to relatives at least 30 were under pressure to accept return. The International Organization for Migration (IOM) facilitating their returns denies the allegations.
A group of 75 migrants of which 64 were Bangladeshi nationals stranded off the coast of Tunisia for three weeks after authorities denied disembarkation with reference to overcrowded reception facilities. All 64 Bangladeshi nationals are set to return to Bangladesh and IOM has confirmed that two groups of 32 people have already been returned. Relatives of the group are questioning whether the returns were voluntary and the Forum Tunisien pour les Droits Economiques et Sociaux (FTDES), an NGO working for social and economic rights, stated: “We doubt that the decisions to return were made voluntarily by the migrants”. Further, the organisation reports that despite requests for visits, the location of the migrants was not revealed and inquiries about their well-being were hindered.
IOM rejects the allegations and head of mission in Tunisia, Lorena Lando stated “IOM does not do deportation, nor force anyone to return”, and that “remaining at sea was not a solution either. It is up to the person to also apply for asylum if they fear persecution … or seek help to return home or take time to decide”.
In May, 65 migrants died when their vessel capsized off the coast of Tunisia on its way from Libya adding to the 164 lost deaths on the route in the first four month of 2019.
For further information:
Interview with Omar N Cham, PhD candidate at the Vrije Universiteit Brussels. His research focuses on the politics of return migration in his home country, The Gambia.
Can you give us a brief overview of political developments in The Gambia and its history of migration?
The Gambia is the smallest country in mainland Africa with approximately 1.9 inhabitants. The Gambia has a very youthful population with about 60 per cent under the age of 24. In 2016 we had the first democratic transfer of power since independence from Britain in 1965, when a coalition of seven opposition parties surprisingly won against the incumbent president, Yaya Jammeh. Like most countries in Africa, The Gambia has a very long history of international migration. Post-independence emigration from the Gambia was largely attributed to educational and socio-economic reasons. Moreover, after the coup in 1994, many educated and highly skilled people additionally fled the country for political reasons. Also, with the increased use of irregular routes to Europe, many unskilled Gambians took the Mediterranean route to Spain via the Canary Islands to look for opportunities in Europe. In 2015, Gambians were among the nationalities with the highest number of arrivals and asylum claims in Italy and also in Germany – this is very significant considering the size of the population.
What does you research focus on?
My PhD focuses on the politics of return migration in The Gambia. I am interested in examining how cooperation on forced return changed with transition to democracy in 2016. In the previous regime of Yaya Jammeh, there was almost no cooperation with the EU, UK or US on forced return, that is taking people back who are on a deportation order from another country, often after their asylum claim has been rejected. The president legitimated his non-cooperation with the EU along the lines of ‘post-colonial resistance frame “We are not going to be colonized again”, “They have stolen our resources and we have to get back what we rightfully own” “People have the right to migrate and move freely”. The relationship to the EU was not at its best and the EU representative was expelled from the Gambia in 2015. However, with the change in 2016, we have observed an open-door policy towards the West, especially the EU. So, we want to see whether the changes have any impact on cooperation on forced return with the EU, and if so, why.
How did the relations with the EU and return politics change after the regime change in 2016 and how does it affect Gambians with aspirations to migrate?
With the regime change the EU became very active in The Gambia. It supported the new government and provided some much-needed aid through budgetary support, also through the EU Trust Fund for Africa (EUTF) to ‘stem irregular migration’. As far as return is concerned, we have observed quite a number of returnees from Europe, Libya and Niger. Returns from the latter countries are carried out by the International Organisation of Migration (IOM) through its ‘Assisted Voluntary Return and Re-integration’ (AVRR). The effectiveness of IOM re-integration programs is quite contested. Many of the returnees are faced with numerous challenges after their return. A significant number of them are traumatized, frustrated, and often encounter a lot of discrimination. Moreover, the stress of losing valuable assets and having to pay loans previously taking for the journey further makes their situation worse off compared to their situation before migrating. As far as migration aspirations are concerned, I would want to believe that many young Gambians still want to migrate to other countries whenever the opportunity arises. My research will further provide more evidence-based answers in the coming years.
What is the role of NGO’s and civil society in the politics of returns?
Gambian NGO’s and civil society were predominantly dormant as far as the whole discourse on forced return is concerned. Now they are co-opted through funding incentives from the IOM to promote return and keep people from engaging in ‘irregular’ forms of migration. It is important to note that within the whole discourse on “stemming irregular migration” no progress whatsoever has been made on creating legal pathways, even if this is mentioned in the official agenda. The government is promoting returns on several levels, particularly targeting the skilled Gambian diaspora asking them to come back and develop the country. I must say that they have a difficult job in convincing a nation on the dangers of ‘irregular’ migration were 22% of GDP comes from remittances. In the context of established democratic regimes in Ghana and Senegal for example, some civil society organisations and NGO’s have done a considerable amount of advocacy countering cooperation on forced returns. Moreover, personalities also play a role here because the new Gambian president, Adama Barrow, is himself a forced returnee from Germany and presents himself as a positive example for those forcibly returned. So, the change is relatively new, and it will be interesting to see how CSO’s and NGO’s role evolve in the coming years as far as forced return is concerned.
What are the prospects for the future and how does your research play into this?
With the topic of returns and migration becoming increasingly politicised, it will be interesting to see how the growing salience of migration and forced return translate in the next elections results. Later this year I intend to go back home to do some fieldwork and really try to grasp the whole issue around the debate on migration cooperation between the Gambia and EU. With my research I hope to contribute to an emerging and much-needed discourse that offers a non-Eurocentric view of migration cooperation.
Choose Respect: Together We Can Tackle Anti-Migrant Hate Speech. Hate speech against migrants and refugees is all too common, both online and in the real world. But it isn’t always easy to know how to react effectively – and it’s even harder to respond in a way which changes attitudes. In the run-up to elections, politics is a frequent topic of debate. But if the discussion turns nasty – either around the dinner table or on your social media feed – here are some tips to help you make a constructive contribution to a more positive discourse.
- 17-28 June 2019, Geneva, Summer School on Global and Regional Migration Governance, University of Geneva
- 24-28 June 2019, Nottingham, Summer School 2019 - Development Aid and Migration, Human Rights Law Centre, University of Nottingham
- 26-28 June 2019, The Hague, 2019 World Conference on Statelessness and Inclusion, Institute on Statelessness and Inclusion
- 1- 5 July 2019, Budapest, Conceptualising, Navigating and Representing the Field in Migration Studies, Central European University, Summer University
- 1- 12 July 2019, Brussels, 2019 Summer School on EU Immigration and Asylum Law and Policy, Odysseus Network
- 3-5 July 2019, Geneva, 2019 UNHCR Annual Consultations with NGOs, UNHCR
- 4 July 2019, Frankfurt, Under the European Asylum Rainbow: intersectional queer challenges, SOGICA - Sexual Orientation and Gender Identity Claims of Asylum: A European human rights challenge
- 29 July- 2 August 2019, Tilburg, Statelessness Summer Course: Global Focus 2019, Institute on Statelessness and Inclusion
- 27- 30 August 2019, London, Geographies of Trouble/ Geographies of Hope, 2019 Annual International Conference, Royal Geographical Society- IBG
- Safe Passage: London: Head of Fundraising, 28 June 2019
- Migration Policy Institute: Brussels: Director, Migration Policy Institute Europe, 30 June 2019
- ECRE: Brussels: 2 Legal Assistants, 1 July 2019
- Danish Refugee Council: Research on the determinants of detention in Libya, 04 July 2019
- Refugee Action: Birmingham, Bradford, London or Manchester: Good Practice and Partnerships Manager, 9 July 2019
- Refugee Action: London: Media and PR Manager, 9 July 2019
- Refugee Studies Centre: Oxford: Departmental Lecturer in Forced Migration, 15 July 2019
- Safe Passage: London: Senior Lawyer, 15 July 2019
CALLS FOR PAPERS & OPEN CALLS
- Call for Participants: Massive Open Online Course on Gender-Based Violence in the Context of Migration, Global Campus of Human Rights, 10 June – 21 July 2019
- Call for Papers: MiReKoc 15th Anniversary Conference on Migration and Development in the ‘Global South’: Research Challenges and Policy Implications, 30 June 2019
- Call for Participants: Université d’été “Les institutions culturelles face à la crise migratoire en en Europe”1-7 September, Bayonne, 30 June 2019
- Call for Participants: Summer 2019 Short Courses, The Centre for Migration and Refugee Studies at The American University in Cairo, 5 July 2019
- Call forApplications, Open Learning Initiative Plus Program for Refugees, Refugee Education Initiative, 5 July 2019
- Call for Scholarship Applications: Scholarship for Refugees for Dutch Programme at University of Antwerpen, 11 July 2019
- Call for Papers: Exploring the Dimensions of Refugee Inclusion: Social Structures, Institutions and Strategies, Sabancı University, 15 August 2019