Offshore Processing and Complicity in Current EU Migration Policies (Part 2)

In the first part of our blog post we reconstructed a complex web of migration policies that indicate a shift towards offshore processing of asylum claims in Niger and possibly Chad. In this second part, we seek to answer an obvious yet difficult legal question, namely who bears responsibility in scenarios of extraterritorial complicity such as this one? As described in part one, the new plan could not be implemented without the close cooperation of various actors: European Union (EU) institutions and Member States, third countries (Niger and/or Chad) and UN organisations (IOM and UNHCR).

Our discussion focuses on issues of responsibility and jurisdiction arising when bringing a case to the European Court of Human Rights (ECtHR) against any of the Member States involved in the setting up and implementation of the offshoring mechanism. Given Italy’s role in concluding the agreement with Libya, Niger and Chad which underpins the offshoring arrangements, and its continued support for this extraterritorial solution, we test the applicability of the European Convention on Human Rights (ECHR) to Italy’s complicit acts. For the purpose of our argument, imagine that—under the offshore mechanism announced by the Commission, with Italy’s funds and active contribution, and under the monitoring and systematic coordination of the cabina di regia set up by Italy with Niger, Chad and Libya—UNHCR identifies a vulnerable person in need of international protection who is then transferred by IOM to a ‘reception’ centre in Niger. There she remains in detention whilst her case is being considered (in breach of Article 5 ECHR) and is subjected to torture or inhuman and degrading treatment (in breach of Article 3 ECHR). 

Violations/Wrongful Conduct

Since our scenario can only be hypothetical because emergency transfers and offshore processing in Niger have yet to take place, we will assume that the specific facts of the case will be sufficient to ascertain wrongful conduct. We base our assumption on the following features common to the Italian and Greek hotspots, and to the centres in Turkey and in Libya: increasingly deteriorating conditions of detention; significant backlogs in processing asylum claims; inability for individuals to access procedures satisfying the requirements of Article 13 (see the case of ND and NT v Spain); and, crucially, continued Member States’ recalcitrance in relocating and resettling people from these centres, even once their claims for international protection are established. Such a state of affairs does not give us any reasons to assume that the situation in Niger will be remarkably different. In light of this, and by analogy to the non-refoulement rule as set out in El-Masri and Al-Nashiri, it is possible to say that there is already a robust body of ECtHR case law on both Article 3 (covering direct and chain-refoulement) and Article 5 (liberty and security of person) which deals with situations similar to those of our scenario, including in the context of migration management. Thus, in our hypothetical scenario the relevant factual criteria for the violations are met.

Complicity under ARSIWA

There is little doubt that we are dealing with what Nollkaemper calls ‘cooperative human rights violations’ and there is a good base for establishing a case of complicity against Italy under ILC’s Articles on the Responsibility of States for International Wrongful Acts (ARSIWA). The rules in ARSIWA are traditionally considered as a set of secondary rules that apply when there is a breach of a primary rule. This, some have argued, makes the applicability of ARSIWA in front of the ECtHR somewhat problematic in situations related to modern-day non-entrée policies because the Court seems to base its decisions on its primary rule of non-refoulement as a specific applicable complicity provision. According to Hathaway and Gammeltoft-Hansen, the ECtHR agrees that ‘international human rights law is to be interpreted taking into account the law on state responsibility’. The ECtHR, however, does not explicitly rely on ARSIWA in its jurisprudence. Several reasons have been given for this: it could be because the examination by the ECtHR of the lawfulness of an act by a third State would go against the ‘indispensable parties rule’; or because the ECtHR already includes such ‘scenarios of derived responsibility’ in its analysis of positive obligations of the state parties, when considering the obligations to prevent, protect and fulfil ECHR rights. As argued by Baxewanos, the ECtHR confirmed in the Soering Case that a state must ‘refrain from any act that may facilitate human rights violations by other actors, even if it does not exercise effective control in that particular situation’ (see further below).

A previous blog has already discussed the applicability of ARSIWA to Italy’s complicity in recent interception and pull-backs operations by Libya, a scenario not too dissimilar from ours. We therefore clarify here only two points which are relevant to our argument (for more see here and here). One relates to the nexus element that, under Article 16 ARSIWA (aiding and assisting), needs to be found between the aid and the commission of the international wrong. As explained by Wilmshurst, the contribution and/or material facilitation to the wrongful act must be substantial, not merely incidental. A Chatham House research paper by Moynihan confirms that assistance in a ‘generalised way’ will not necessarily result in a breach of Article 16 ARSIWA. Italy’s actions, however—such as financing and ensuring effectiveness of offshoring—taken individually and jointly with EU institutions and other Member States, do not appear to be merely incidental, but part of a concerted joint effort to externalise migration management in which Italy plays a key role. The second point that we would like to clarify concerns the knowledge element under Article 16 ARSIWA. Whilst intent appears to be a necessary part of Article 16, ‘knowledge or virtual certainty that the recipient state will use the assistance unlawfully’ is capable of satisfying the intent element under Article 16, whatever its desire or purpose’. If we accept that purpose is therefore not required to find a breach of Article 16, and that knowledge satisfies the intent requirement, it would be difficult for Italy to distance itself from the wrongful acts by Niger in relation to both deprivation of liberty and inhuman treatment in the offshore processing centres (see also here).

Issues of Jurisdiction

The main problem in ascertaining Italy’s responsibility in front of the ECtHR remains the fact that in many non-entrée situations the vulnerable person concerned is never within the territory of the complicit state (Italy), which raises issues of jurisdiction under Article 1 ECHR. Classic approaches to jurisdiction arising once a state has effective control over a person or territory do not apply here as there is no such control over the place where the detention and processing will be conducted.

Jackson, however, argues that jurisdiction may arise due to the complicity of an ECHR Member State in breaches committed by a third state. He contends that ‘the rule in Soering can be re-imagined and legitimately extended to cover cases of extraterritorial complicity’. In Soering the responsibility of the extraditing state (UK) under Article 3 ECHR was established because the claimant faced ‘a real risk of torture or inhuman and degrading treatment in the foreign state’. This finding was possible by overcoming an obvious problem of jurisdiction, as the treatment of the claimant would have occurred in the territory of the US or at the hands of its agents. It is possible to extend the Soering argument, as per Jackson, also to our scenario. According to Jackson, Soering established a ‘narrow preventive complicity rule’ whereby the engagement of Article 3 ECHR turns on the ‘foreseeable consequences of extradition suffered outside [the extraditing state’s] jurisdiction’. As this rule is based on the ‘real risk of the principal wrong occurring’, it could be expanded to other forms of complicity in breaches of Article 3 ECHR and other ECHR rights. We suggest that the same approach can be applied to the case of Italy’s complicity in breaches of Articles 3, 5 and 13 ECHR because of Italy’s involvement in financing, setting up and monitoring the effectiveness of the offshoring mechanism.

Notably, Milanovic argues in favour of a territorially unlimited approach to negative obligations:

states not only have a territorially unlimited negative obligation not to directly violate the rights of any given individual, but also a territorially unlimited, primary negative obligation to refrain from assisting third (state or private) parties in violating human rights, by analogy to the non-refoulement rule as set out in cases such as Soering or Judge. By contrast, the positive obligation to protect individuals and prevent the violation of their rights by third parties would only arise if the individuals in question were in an area under the state’s effective control, or otherwise subject to its jurisdiction.

Similarly, to establish jurisdiction in cases of extraterritorial complicity Jackson deploys five lines of arguments, to which we refer in turn. He first argues that interpretative doctrines see the ECHR as a ‘living instrument whose safeguards must be practical and effective’. It is therefore reasonable to argue for an evolutionary interpretation of the ECHR which includes a more expansive understanding of jurisdiction under Article 1. The migration policies of the EU and its Member States systematically rely on extraterritorial measures to circumvent human rights obligations, and due attention should be paid to this for the ECHR to remain relevant. Offshore processing in Niger may ultimately lead to Member States hardly ever exercising control over the territory where the violations takes place or over the person who suffers the violation. Under the current interpretation of Article 1, this would lead to an unacceptable outcome, i.e. the non-applicability of the ECHR due to wilful attempts to circumvent existing obligations and ultimately to an erosion of ECHR effectiveness.

His second argument focuses on the nature of the violations, specifically the absolute nature of the prohibition against torture, which ‘has pushed the expansion of the rights protection in other contexts’. Since non-refoulement is inseparably related to the prohibition against torture in Article 3 ECHR, this argument also applies to our scenario.

Third, Jackson argues that ‘overcoming the jurisdictional gap would render states’ obligations under the ECHR consistent with their other international obligations’. In Soering the ECtHR used the reasoning in Article 3 of the Convention against Torture thus creating consistency between the two. Given the significance of the law on state complicity and, specifically, of Article 16 ARSIWA, its emergence into customary international law, and its crucial role in the ‘war on terrorism’, the ECtHR could take into consideration the reasoning of this rule, thus paving the way to an extension of Soering.

In his fourth argument, the Soering rule is summarised as establishing state responsibility for the ‘foreseeable consequences of extradition suffered outside their jurisdiction’, demanding ‘that states take responsibility for wrongdoings they facilitate’ although the Article 3 violation is carried out by another state. Facilitation, indeed, can take many forms. In our scenario, these are: funding, actively seeking and obtaining the cooperation of third countries (including by making funding conditional to the effectiveness of migration control measures); training and equipping the authorities of the third country; leading the committee monitoring the effectiveness of the offshoring mechanism.

In his fifth argument, Jackson contends that his approach would ‘align with powerful trends in the ECtHR’s recent case law on jurisdiction’, thus preventing absurd results—i.e. states being able to facilitate violations abroad where they cannot do so at home—and upholding the universality of rights. Prohibiting Member States to refoul people or to detain them in inhuman conditions within their territory, yet allowing them to facilitate a third country to do so would lead to an ‘absurd result’. And allowing states to offshore, outsource and buy their way out of the obligations vested upon them, flies in the face of the notion of universality of rights.

To conclude, we think that it is preferable for the ECtHR to focus on the substantive conduct of the complicit state (Italy), which has a (territorially unlimited, primary negative) obligation to refrain from assisting a third party in violating human rights. In this way, jurisdiction can be extended to the scenario discussed. This would involve considering Article 16 ARSIWA as a primary rule of international law to clearly define the scope of acceptable conduct for a state, hereby avoiding ‘absurd results’. Jackson’s and Milanovic’s arguments, in our view, provide some conceptual clarity to the approach that the ECtHR should take towards jurisdiction and offer clearer, actionable routes to remedy for victims, including in scenarios of extraterritorial migration control where we increasingly see the involvement of private non-state actors in support of EU institutions and Member States. But that is a blog post for another day.