AfricaFocus (Washington, DC)

7 March 2012

Africa: Court Rules for Boat Migrants' Rights

Photo: Kate Thomas/IRIN
A boat carrying sub-Saharan African migrant workers arrives in Lampedusa from Tripoli (file photo).

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 -- 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 prà paratoires 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.

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