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Home Posts tagged "Libya"

The ‘Open Arms’ case: Reconciling the notion of ‘place of safety’ with the human rights of migrants

Published on May 21, 2018        Author: 
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The work of the NGOs rescuing migrants in the Mediterranean Sea has been the subject of much controversy. One of the most recent cases regards the NGO Proactiva Open Arms: it has been accused of smuggling migrants during rescue operations at sea, and its rescue ship was impounded by the Italian authorities. This post examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel.

The relevance of this case is twofold. It obliquely tackles the legitimacy of the ‘pull-back’ agreement between Italy and Libya, as part of which the two states agree to collaborate with the aim of returning migrants to Libya, and which was recently challenged before the European Court of Human Rights (see this previous EJIL:Talk! post). Secondly, the decision, despite being just a pre-trial order, offers interesting insights into a contested area of international law which is gaining increase salience, i.e. the intersection between the Law of the Sea and the human rights of migrants.

This post argues that the order issued on 16 April is an important step forward in the definition of the notion of ‘place of safety’. International law merely states that people rescued at sea shall be delivered to a ‘place of safety’, but provides no definition of it (3.1.9. of the International Convention on Maritime Search and Rescue 1979, “SAR Convention”). The decision by the judge in Ragusa interprets ‘place of safety’ in accordance with the human rights of migrants, and rightly overcomes inappropriate distinctions based on migrants’ statuses. Read the rest of this entry…

 
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High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 
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The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

 
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Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

Read the rest of this entry…

 

The Legal and Political Feasibility of the EU’s Planned ‘War on Smuggling’ in Libya

Published on June 10, 2015        Author: 
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Introduction

On 19 April 2015, after a series of deadly shipwrecks, over 800 migrants perished when their smuggling boats, boarded in the Libyan port Zuwara, capsized in the Mediterranean Sea. The response from the EU was immediate. On 20 April, at a joint meeting of EU Foreign and Interior Ministers, the EU Migration Commissioner presented a 10-point action plan, the second point of which foresaw “[a] systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean”. At the special meeting of the European Council on 23 April 2015, this was streamlined into the commitment to undertake “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. These events precipitated the adoption on 18 May of a decision of the EU Foreign Affairs Council, establishing an EU military operation called EUNAVFOR MED with the mission “[to disrupt] the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers” (Art. 1).

According to Article 2 of the decision, EUNAVFOR MED shall be implemented in three sequential phases. The first phase will be the “lightest”, aiming at the detection and monitoring of migration networks through information gathering and patrolling on the high seas. It is only in the second and third phases that the operation should achieve the aforementioned aspirations. Thus, in the second phase, it is foreseen to board, search, seize and divert suspected vessels, both on the high seas and in the territorial or internal waters of the state concerned whereas for the third phase, the decision speaks of taking all necessary measures against a suspected smuggling or trafficking vessel and related assets, “including through disposing of them or rendering them inoperable in the territory of that State” (Art. 2(b).

The decision makes the implementation of those second- and third-phase measures which need to be conducted in the territorial sea, the internal waters or the land territory of Libya conditional upon “any applicable UN Security Council Resolution or consent by the coastal State concerned” (Art. 2). This is quite logical. As the planned enforcement measures involve a threat or actual use of coercive power, the fundamental international law principles of sovereign equality, territorial sovereignty and non-interference prohibit the EU Member States from exercising enforcement jurisdiction in the territory of Libya (including territorial and internal waters) without: 1) Libya’s permission and/or 2) the authorization of the UNSC under Chapter VII of the UN Charter (on international law implications cf. Gallagher and David, The International Law of Migrant Smuggling, CUP, 2014. p. 222).

Because there are competing authorities claiming to be the government of Libya, and inspired by the previous experience with the UNSC-accepted EU anti-piracy military operation ATALANTA (launched in 2008 in the framework of European Common Security and Defence Policy to combat the piracy off the coast of Somalia), the EU opted from the very beginning for seemingly the easiest and fastest solution, which is to obtain the green light from the UNSC. In the following, I will elaborate on the feasibility of this option. Read the rest of this entry…

 
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The Situation Concerning the Islamic State: Carte Blanche for the ICC if the Security Council Refers?

Published on May 27, 2015        Author: 
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At a meeting of the UN Security Council held on 27 March 2015, the possibility of a referral to the International Criminal Court (ICC) of the situation relating to the so-called Islamic State (IS aka ISIS, ISIL, or Daesh) was vigorously discussed. At that meeting, which was convened by France and chaired by French Foreign Minister Laurent Fabius (who had travelled to New York specifically to preside over the meeting), more than a dozen of States lined up to call for a Council referral. However, confusion seemed to rein over what should be referred to the ICC. While most States appealed for a referral of the situation in Syria, some urged a referral of the situation in Iraq, others called for a referral of the situation in both States, and, finally, a few remained purposefully vague by calling for a referral of ‘the situation’, ‘the matter’, and even ‘the cases’ to the ICC. One issue was, however, clear: the reason to refer a situation to the ICC would be to make members of IS accountable for the crimes they committed.

This discussion about the possibility of prosecuting IS members at the ICC raises the question whether “situations” referred to the ICC must be defined by reference to a given territory. Is it possible to refer a worldwide situation relating to a group to the Court? Or must the situation referred be one occurring in a particular geographical location or in a particular state?

On 8th April 2015, ICC Prosecutor Fatou Bensouda stated that she will not open a preliminary examination concerning alleged crimes committed by IS, unless Iraq or Syria or the Security Council (SC) provide jurisdiction to the ICC. As Barrie Sander has noted this statement was an attempt by the Prosecutor to pressure States and, especially, the Security Council, to assume their responsibility and confer jurisdiction on the ICC over this situation.

Despite the Prosecutor’s ‘clarification’, neither Iraq nor Syria or the Security Council has yet taken action. Subsequent to her statement, Lithuania, Chile and the UK’ representatives at the UN have continued to push for a Council referral of the situation in Syria to the ICC – but to no avail. The position of Russia and China concerning a referral of Syria is known. They vetoed a similar attempt last year. One may think that the recent attempts to refer IS are trying to push through the window what some members of the Council were unable to push through the door in 2014. However, there is a difference. A Security Council referral of the crimes committed by IS tout court would enable the Prosecutor to charge members of IS not only for crimes committed in Syria or in Iraq but also for crimes committed in Libya, Yemen, Tunisia, France, and why not in the United States. Read the rest of this entry…

 
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