Italian authorities are questioning survivor reports that the boat on which they were sailing from Tunisia actually sank or capsized near Lampedusa on 7 September. Authorities have raised the possibility that the survivors were intentionally landed on the small island of Lampione, approximately 20 km west of Lampedusa, by a trafficker’s “mother ship” and that the traffickers then returned to Tunisia. Some of the 56 survivors who were rescued from Lampione reported that their boat sank and they were forced to swim to the island, but Italian authorities have not yet found sufficient debris, bodies, or other evidence that would indicate that their boat sank. While two bodies have been recovered recently, the locations of the recovered bodies are not consistent with the location where the migrant boat is reported to have sunk. Authorities think the two bodies may be from different incidents that may have taken place recently.
Tag Archives: Lampedusa
Human Rights Watch released a briefing paper on 16 August entitled “Hidden Emergency-Migrant deaths in the Mediterranean.” The briefing paper, written by Judith Sunderland, a senior researcher with HRW, reviews recent events in the Mediterranean, provides updates on new developments, including the EUROSUR proposal and IMO guidelines that are under consideration, and makes recommendations for how deaths can be minimized.
Excerpts from the Briefing Paper:
“The death toll during the first six months of 2012 has reached at least 170. … Unless more is done, it is certain that more will die.
Europe has a responsibility to make sure that preventing deaths at sea is at the heart of a coordinated European-wide approach to boat migration, not a self-serving afterthought to policies focused on preventing arrivals or another maneuver by northern member states to shift the burden to southern member states like Italy and Malta.
With admirable candor, EU Commissioner Cecilia Malmström said recently that Europe had, in its reaction to the Arab Spring, ‘missed the opportunity to show the EU is ready to defend, to stand up, and to help.’ Immediate, concerted efforts to prevent deaths at sea must be part of rectifying what Malmström called Europe’s ‘historic mistake.’
Europe’s Response to Boat Migration
European countries most affected by boat migration—Italy, Malta, Greece and Spain—have saved many lives through rescue operations. But those governments and the European Union as a whole have focused far more effort on seeking to prevent boat migration, including in ways that violate rights. Cooperation agreements with countries of departure for joint maritime patrols, technical and financial assistance for border and immigration control, and expedited readmission of those who manage to set foot on European soil have become commonplace.
The EU’s border agency Frontex has become increasingly active through joint maritime operations, some of which have involved coordination with countries of departure outside the EU such as Senegal. Even though in September 2011 the EU gave Frontex an explicit duty to respect human rights in its operations and a role in supporting rescue at sea operations, these operations have as a primary objective to prevent boats from landing on EU member state territories. This has also prevented migrants, including asylum seekers, from availing themselves of procedural rights that apply within EU territory.
Italy had suspended its cooperation agreements with Libya in February 2011, and has indicated it will respect the European Court’s ruling and will no longer engage in push-backs. However, past experience suggests that an immigration cooperation agreement signed with the Libyan authorities in April 2012, the exact contents of which have neither been made public nor submitted to parliamentary scrutiny, is unlikely to give migrants’ human rights the attention and focus they need if those rights are to be properly protected.
Preventing Deaths in the Mediterranean
It may be tempting to blame lives lost at sea on unscrupulous smugglers, the weather, or simple, cruel fate. However, many deaths can and should be prevented. UNHCR’s recommendation during the Arab Spring to presume that all overcrowded migrant boats in the Mediterranean need rescue is a good place to start.
Recognizing the serious dimensions of the problem, specialized United Nations agencies such as the UNHCR and the International Maritime Organization (IMO), have been working to produce clear recommendations. These include establishing a model framework for cooperation in rescue at sea and standard operating procedures for shipmasters. The latter should include a definition of distress triggering the obligation to provide assistance that takes into account risk factors, such as overcrowding, poor conditions on board, and lack of necessary equipment or expertise. UNHCR has also proposed that countries with refugee resettlement programs set aside a quota for recognized refugees rescued at sea.
The IMO has also been pursuing since 2010 a regional agreement among Mediterranean European countries to improve rescue and disembarkation coordination, as well as burden-sharing. The project, if implemented successfully, would serve as a model for other regions. A draft text for a memorandum of understanding is under discussion. Negotiations should be fast-tracked with a view to implementation as quickly as possible.
If Europe is serious about saving lives at sea, it also needs to amend the draft legislation creating EUROSUR. This new coordinated surveillance system should spell out clearly the paramount duty to assist boat migrants at sea, and its implementation must be subject to rigorous and impartial monitoring. Arguments that such a focus would create a ‘pull factor’ and encourage more migrants to risk the crossing are spurious. History shows that people on the move, whether for economic or political reasons, are rarely deterred or encouraged by external factors.
From the HRW press statement:
The “briefing paper includes concrete recommendations to improve rescue operations and save lives:
- Improve search and rescue coordination mechanisms among EU member states;
- Ensure that EUROSUR has clear guidelines on the paramount duty of rescue at sea and that its implementation is rigorously monitored;
- Clarify what constitutes a distress situation, to create a presumption in favor of rescue for overcrowded and ill-equipped boats;
- Resolve disputes about disembarkation points;
- Remove disincentives for commercial and private vessels to conduct rescues; and
- Increase burden-sharing among EU member states.”
Click here for HRW press statement.
400 Migrants Reach Lampedusa Over Past Weekend; Detention Centre Over Capacity; Former Interior Minister Maroni Calls for Resumption of Italy’s Push-Back Practice
Two large migrant boats reached Lampedusa over the past weekend. One of the boats was carrying about 250 persons, believed to be Sub-Saharan Africans, and is thought to have departed from Libya. The boat was a 15 meter wooden fishing vessel and appears to be one of the first non-inflatable boats used in many months. A second boat carrying about 125 Tunisians arrived around the same time. Smaller boats carrying mostly Tunisians have been steadily reaching Lampedusa in recent weeks. In response to the apparent increase in the numbers of persons reaching Lampedusa, former Italian Interior Minister Roberto Maroni (Northern League) wrote on his Facebook page and called for a resumption of Italy’s Push-Back practice to halt new boats. (“Tornano i barconi a Lampedusa. RESPINGIMENTI, come facevo io, questo serve per fermare l’invasione.”) Given the decision in the Hirsi case by the European Court of Human Rights, Italy is not likely to resume the push-back practice. 81 Sub-Saharan migrants on a disabled boat were rescued by Italian authorities on Monday. The detention centre on Lampedusa is over its 350 person capacity and Italian authorities have begun to transfer migrants to facilities elsewhere.
The PACE Migration Committee report, “Lives lost in the Mediterranean Sea: who is responsible?”, released yesterday, is a must read for anyone concerned with this topic. In addition to documenting the events of March-April 2011 and the resulting deaths of 63 persons, the report makes a series of recommendations as to how search and rescue should be carried out in the future:
“13. While the [rapporteur’s] investigation focused on a single incident, the lessons learnt have implications for the way in which search and rescue should be carried out in the future. As a consequence, the [Parliamentary] Assembly recommends that member States:
13.1. fill the vacuum of responsibility for an SAR zone left by a State which cannot or does not exercise its responsibility for search and rescue, such as was the case for Libya. This may require amending the International Maritime Search and Rescue Convention (SAR Convention). In the case in question, two Maritime Rescue Coordination Centres (Rome and Malta) were aware that a boat was in distress, but neither took the responsibility to start a search and rescue operation. Rome, being the first MRCC informed of the distress situation, had a greater responsibility to ensure the boat’s rescue;
13.2. ensure that there are clear and simple guidelines, which are then followed, on what amounts to a distress signal, so as to avoid any confusion over the obligation to launch a search and rescue operation for a boat in distress;
13.3. avoid differing interpretations of what constitutes a vessel in distress, in particular as concerns overloaded, unseaworthy boats, even if under propulsion, and render appropriate assistance to such vessels. Whenever safety requires that a vessel be assisted, this should lead to rescue actions;
13.4. tackle the reasons why commercial vessels fail to go to the rescue of boats in distress. This will require dealing with:
13.4.1. the economic consequences for the rescuing vessel and its owners, and the issue of compensation;
13.4.2. the disagreement between Malta and Italy as to whether disembarkation should be to the nearest safe port or to a port within the country of the SAR zone. The International Maritime Organization should be urged to find a solution to the matter and step up its efforts towards a harmonised interpretation and application of international maritime law;
13.4.3. the fear of criminalisation (trafficking or aiding and abetting irregular migration) by those who go to the rescue of boats carrying irregular migrants, asylum seekers and refugees;
13.4.4. legislation to criminalise private shipmasters who fail to comply with their duty under the law of the sea, as is already the case in certain Council of Europe member States;
13.5. ensure that, in accordance with the Hirsi v. Italy judgment of the European Court of Human Rights, after the rescue operation, people are not pushed back to a country where they risk being treated in violation of Article 3 of the European Convention on Human Rights;
13.6. tackle the issue of responsibility sharing, particularly in the context of rescue services, disembarkation, administration of asylum requests, setting up reception facilities and relocation and resettlement, with a view to developing a binding European Union protocol for the Mediterranean region. The heavy burden placed on frontline States leads to a problem of saturation and a reluctance to take responsibility;
13.7. respect the families’ right to know the fate of those who lose their lives at sea by improving identity data collection and sharing. This could include the setting up of a DNA file of the remains of those retrieved from the Mediterranean Sea. In this context, the ongoing work of the International Committee of the Red Cross (ICRC) and other organisations should be acknowledged and supported;
13.8. follow up Assembly Resolution 1821 (2011) on the interception and rescue at sea of asylum seekers, refugees and irregular migrants;
13.9. ensure that the lack of communication and understanding between the Rome Maritime Rescue Coordination Centre and NATO, which led to no one taking responsibility for the boat, is not reproduced in future NATO operations, and ensure that NATO introduces a mechanism to co-ordinate its assets in SAR operations in direct contact with relevant Maritime Rescue Coordination Centres wherever possible.”
Click on the following links for:
PACE Migration Committee Approves Report on “Lives Lost in the Mediterranean” and Calls on NATO and Responsible States to Conduct Full Inquiries into the Failures to Rescue
The report, “Lives lost in the Mediterranean Sea: who is responsible?”, was adopted this morning by the PACE Committee on Committee on Migration, Refugees and Displaced Persons. It will next be debated in a plenary session of the Parliamentary Assembly, probably on 24 April.
Here is the full text of the PACE press statement and links to the provisional version of the report:
“Strasbourg, 29.03.2012 – A failure to react to distress calls and a ‘vacuum of responsibility’ for search and rescue are among a ‘catalogue of failures’ which led to the deaths of 63 people fleeing the conflict in Libya by sea during a tragic 15-day voyage in March 2011, according to a committee of the Parliamentary Assembly of the Council of Europe (PACE).
A report by Tineke Strik (Netherlands, SOC), adopted this morning in Brussels by PACE’s Committee on Migration, Refugees and Displaced Persons, says Italian search and rescue authorities, NATO, the flag states of naval vessels in the area, the Libyan authorities and reckless smugglers are among those who share responsibility.
The boat, which left Tripoli with 72 people on board a week after the beginning of international air strikes on Libya, washed up on the Libyan coast 15 days later with only nine people still alive – even though distress messages giving its last known position were regularly broadcast to all ships in the area.
NATO ‘failed to react to distress calls’ in a military zone under its control, the committee says, pointing out that the Spanish Navy frigate Méndez Núñez, under NATO command, was reported to be only 11 miles away, although the Spanish authorities dispute the distance. An Italian military vessel, the Borsini, was 37 nautical miles away. Both vessels can carry a helicopter.
The committee says it finds ‘credible’ the testimonies of the nine survivors of the incident, who said that a military helicopter dropped water and biscuits to them and indicated it would return, but never did. On the tenth day of the voyage – with half the passengers dead – they said ‘a large military vessel’ approached, close enough for them to see crew with binoculars, but sailed away without effecting a rescue.
‘Many opportunities of saving the lives of the persons on board were lost,’ the committee concludes. It demands that NATO conduct an inquiry into the incident and provide comprehensive answers to outstanding questions, and calls on the European Parliament to seek further information, including satellite imagery. National parliaments of the states concerned should also carry out inquiries. There should also be an overhaul of maritime regulations to fill the ‘vacuum of responsibility’ when a state cannot carry out search and rescue in its assigned zone, and to deal with the dispute between Italy and Malta over which country should be responsible for disembarkation of those rescued at sea.
The report is due to be debated at the April plenary session of the Parliamentary Assembly, probably on Tuesday 24 April.
The Guardian’s Advance Coverage of PACE Report – “Lives Lost in the Mediterranean Sea: Who is Responsible?”
The Guardian has reviewed a copy of the report prepared by Ms. Tinke Strik which will be presented to the PACE Committee on Migration, Refugees and Displaced Persons on Thursday, 29 March. The Guardian describes the report as “a damning official report” that documents “[a] catalogue of failures by Nato warships and European coastguards [which] led to the deaths of dozens of migrants left adrift at sea [ ].”
Click on the following links for the Guardian’s articles:
Human Rights Organisations Renew Call for NATO and Governments to Release Information Regarding Migrant Deaths in Mediterranean Sea
Human Rights Watch, the International Federation for Human Rights (FIDH), and 9 other human rights groups on 26 March sent letters to NATO and the defence ministers of France, Italy, Spain, Canada, the UK, and the US calling for the release of information to clarify events surrounding the deaths of 63 migrants who died approximately one year ago after their disabled boat drifted for days within an area that was heavily patrolled by NATO warships. The renewed call for release of information is being made in connection with the scheduled release on 29 March of the PACE Migration Committee Report, “Lives lost in the Mediterranean Sea: who is responsible?” Representatives of HRW and FIDH will participate in a press conference on 29 March, 2 p.m. CET, with Ms. Tineke Strik (Netherlands, SOC), when Ms. Strik releases the report.
Click here for the 26 March PACE press release and information regarding 29 March press conference.
Click here for the 26 March HRW press release.
PACE Report on “Lives Lost in the Mediterranean Sea: Who is Responsible?” Scheduled for Release on 29 March
The draft report prepared by Tineke Strik (Netherlands, SOC), “Lives lost in the Mediterranean Sea: who is responsible?”, will be considered on 29 March in a closed session by the PACE Committee on Migration, Refugees and Displaced Persons.
If the draft report receives committee approval it will be released to the public by Ms. Strik at a press conference scheduled for 2 p.m. CET. Representatives from HRW and FIDH will participate in the press conference. (Click here for HRW press release.) The report will be next be considered during “plenary debate by the 318-member Parliamentary Assembly, probably on Tuesday 24 April during its spring session in Strasbourg.”
Full text of PACE press release: “Strasbourg, 26.03.2012 – Tineke Strik (Netherlands, SOC), rapporteur for the Parliamentary Assembly of the Council of Europe (PACE) on ‘Lives lost in the Mediterranean Sea: who is responsible?’ will present her draft report at a press conference in Brussels on Thursday 29th March 2012.
The report is the result of a nine-month inquiry, launched at the request of 34 Assembly members, following a March 2011 incident in which it is alleged that 63 people attempting to flee the conflict in Libya died at sea after their appeals for rescue were ignored, including by armed forces operating in the area.
Ahead of her presentation, Ms Strik commented: ‘Since the beginning of 2011 at least 1,500 people are known to have perished in the Mediterranean trying to reach European soil – despite this being one of the busiest and best-monitored seas in the world. My inquiry has focused on one particularly tragic incident, in which 63 people died, to try to establish who bears responsibility for their deaths. I have been deeply shocked by what I have learned.’
As part of her inquiry, Tineke Strik spoke at length with survivors, search and rescue authorities from Italy and Malta, as well as NATO and EU officials, and put detailed written questions to a number of governments, including those with vessels with aircraft-carrying facilities in the area at the time. She also obtained a reconstruction of the voyage using the science of forensic oceanography.
The same day, prior to the press conference, Ms Strik will present her report to PACE’s Committee on Migration, Refugees and Displaced Persons, meeting in closed session. If approved by the committee, the report will go forward for plenary debate by the 318-member Parliamentary Assembly, probably on Tuesday 24 April during its spring session in Strasbourg.
* * *
Notes for editors
The press conference will take place at 2 p.m. on Thursday 29th March at the Council of Europe office in Brussels (Avenue des Nerviens 85 / Nerviërslaan 85, B-1040 Brussels). The rapporteur will be joined by representatives of the International Federation for Human Rights (FIDH) and Human Rights Watch. A video recording of the press conference will be made available at the link above, and on the PACE website, as soon as possible after it ends.
Copies of the report
If approved by the committee, the full text of the report will be posted on the Assembly’s website at around 2 p.m. Central European Time.
Angus Macdonald, PACE Communication Division, mobile +33 (0)6 30 49 68 20.
Andrew Cutting, Council of Europe Office in Brussels, mobile +32 (0)485 21 72 02.
Click here for PACE Press Release of 26 March.
Click here for Committee meeting agenda.
Click here for HRW Press Release of 26 March.
Article 4 of Protocol No. 4 of the ECHR reads in its entirety as follows: “Collective expulsion of aliens is prohibited.”
The provision was first defined by the European Commission of Human Rights in 1975 in Henning Becker v. Denmark (no. 7011/75, decision of 3 October 1975). The Commission defined the “‘collective expulsion of aliens’ as being ‘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 of the group’.” [para. 166]
The Court has only once previously found a violation of the collective expulsion prohibition and that was in Čonka v. Belgium (no. 51564/99, ECHR 2002-I). [para. 183]
The majority of collective expulsion cases previously considered by the Commission and the Court have “involved persons who were on the territory at issue.” [para. 167] One extra-territorial exception involved the case of Xhavara and Others v. Italy and Albania ((dec), no. 39473/98, 11 January 2001) involving “Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people….” The Court however “rejected the complaint on the ground of incompatibility ratione personae, as [the applicants challenged an Italian law which] had not been applied to their case, and [the Court therefore] did not rule on the [extra-territorial] applicability of Article 4 of Protocol No. 4…” [para. 168]
In Hirsi the Court “for the first time” considered the question of whether the prohibition of collective expulsion “applies to a case involving the removal of aliens to a third State carried out outside national territory.” [para. 169]
Italy argued that the prohibition “came into play only in the event of the expulsion of persons [already] on the territory of a State or who had crossed the national border illegally” and therefore did not apply to the Hirsi applicants who had not entered on to Italian territory. According to Italy, “the measure at issue was a refusal to authorise entry into national territory rather than ‘expulsion’.” [para. 160]
The Court rejected Italy’s interpretation:
“173. The Court does not share the Government’s opinion on this point. It notes firstly that while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extra-territorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of ‘territory’, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 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.
175. It remains to be seen, however, whether [an extra-territorial] application [of the prohibition] is justified. To reply to that question, account must be taken of the purpose and meaning of the provision at issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions. [***] Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; [***]).
176. A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control, in so far as they constitute tools for States to combat irregular immigration.
The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.
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 travelling by land.
178. It is therefore clear that, while the notion of ‘jurisdiction’ is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).
180. Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.
185. In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.
That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.
186. Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4. Accordingly, there has been a violation of that Article.”
Click here for my previous post “Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1.”
The Court found that ECHR Article 1 jurisdiction existed because “the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities” from the point in time when the applicants’ boats were intercepted and the applicants were transferred to the Italian ships up until the point when the applicants were turned over to Libyan authorities in Tripoli. [para. 81]
The Court noted that the jurisdiction of a State is essentially territorial and therefore “the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç, decision cited above, § 67; and Ilaşcu and Others, cited above, § 314).” [para. 72].
“73. [***] In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, 7 July 201; Medvedyev and Others, cited above, § 67).
74. Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be ‘divided and tailored’ (see Al-Skeini, cited above, § 136 and 137; compare Banković, cited above, § 75).”
The Court rejected Italy’s jurisdictional arguments. While Italy acknowledged that the events in question took place on board its military ships, Italy asserted that due to the nature of the operation, the military ships and their personnel never exercised “absolute and exclusive control” over the applicants. [para. 64] Italy argued that its actions constituted a “rescue on the high seas of persons in distress” and therefore “could in no circumstances be described as a maritime police operation.” [para. 65] Italy argued that the UN Convention on the Law of the Sea obligated it to rescue persons in distress and that carrying out its obligations under the Convention on the Law of the Sea “did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.” [para. 65]
The Court concluded that Italy “[could not] circumvent its ‘jurisdiction’ under the [ECHR] by describing the events at issue as rescue operations on the high seas.” The Court took note of the events in the case of Medvedyev and Others where French military personnel intercepted a vessel flying the flag of a third State and took control of crew members who remained on board the intercepted vessel. [para. 80]
“81. The Court observes that in the [Hirsi] case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.
82. Accordingly, the events giving rise to the alleged violations fall within Italy’s ‘jurisdiction’ within the meaning of Article 1 of the Convention.”
In some respects, the Article 1 jurisdictional issue was easier to address because the applicants were removed from their vessels and taken on board the Italian military vessels. The Court noted that under “relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying” [para. 77] and further that this principle is contained within the Italian Navigation Code. [para. 78] The Court accordingly found that de jure control had been exercised over the applicants after they were transferred from their boats to the Italian ships.
It seems clear that Italy intends in the future to resume some sort of bi-lateral immigration control measures with Libya. It remains to be seen whether Italy will try to implement some modified form of the push-back practice that has now been condemned by the Court. One of the provisions in one of the bi-lateral agreements between Italy and Libya mentioned in the Hirsi judgment provides for the deployment of
“maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.” Additional Protocol of 4 February 2009 [para. 19]
The question arises whether Italy could evade jurisdiction and circumvent its Convention obligations by lessening its control over a new push-back scheme. How would the Court have viewed the push-back events had they occurred, as the operational protocol above contemplates, “in … international waters under the supervision of Libyan personnel and with participation by Italian crew members”?
The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February. The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009. The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa. On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber. The argument before the Grand Chamber occurred on 22 June 2011.
Today’s statement from the CoE web site:
“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya. The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.
The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.
The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.
At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.
The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.
They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.
The application was lodged with the European Court of Human Rights on 26 May 2009.
On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.
The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):
- the Office of the United Nations High Commissioner for Refugees,
- the Office of the United Nations High Commissioner for Human Rights,
- the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),
- the non-governmental organisation Human Rights Watch, and
- the Columbia Law School Human Rights Clinic.”
Click here for CoE Statement.
Click here for Press Statement from ECtHR.
Click here for previous post on the argument before the Grand Chamber.
Mare Deserto: RSI documentary about the failure to rescue and subsequent deaths of 60 migrants in the Mediterranean in March 2011
RSI LA1, the Swiss Italian-language television network, last month broadcasted a one hour documentary, Mare deserto , produced by Emiliano Bos and Paul Nicol. The documentary is in Italian. It investigates the events that occurred between 25 March and 10 April 2011 when a disabled migrant boat attempting to travel from Libya to Italy drifted for days during which time approximately 60 persons died. Survivors from the migrant boat reported that at various times military ships and helicopters ignored their requests for assistance. The producers located and interviewed 9 of the known survivors in Italy, Tunisia and Norway.
UNHCR: “Mediterranean takes record as most deadly stretch of water for refugees and migrants in 2011”
Full Text of UNHCR Briefing Note, 31 January:
“This is a summary of what was said by UNHCR spokesperson Sybella Wilkes – to whom quoted text may be attributed – at the press briefing, on 31 January 2012, at the Palais des Nations in Geneva.
According to UNHCR estimates, more than 1,500 people drowned or went missing while attempting to cross the Mediterranean to reach Europe in 2011. This makes 2011 the deadliest year for this region since UNHCR started to record these statistics in 2006. The previous high was in 2007 when 630 people were reported dead or missing.
Last year is also a record in terms of the massive number of arrivals in Europe via the Mediterranean, with more than 58,000 people arriving. The previous high was in 2008 when 54,000 people reached Greece, Italy and Malta. During 2009 and 2010, border control measures sharply reduced arrivals in Europe. The frequency of boat arrivals increased in early 2011 as the regimes in Tunisia and Libya collapsed.
Our teams in Greece, Italy, Libya and Malta, warn that the actual number of deaths at sea may be even higher. Our estimates are based on interviews with people who reached Europe on boats, telephone calls and e-mails from relatives, as well as reports from Libya and Tunisia from survivors whose boats either sank or were in distress in the early stages of the journey.
Survivors told UNHCR staff harrowing stories of being forced onboard by armed guards, particularly during April and May in Libya. The actual journey took place on unseaworthy vessels with refugee and migrant passengers often forced into having to skipper boats themselves. In addition, some survivors told UNHCR that fellow passengers beat and tortured them. Judicial investigations are ongoing in Italy following these reports.
The majority of last year’s arrivals by sea landed in Italy (56,000, of whom 28,000 were Tunisian) while Malta and Greece received 1,574 and 1,030 respectively. The vast majority arrived in the first half of the year. Most were migrants, not asylum-seekers. Only three boats landed from mid-August to the end of the year. In addition, according to Greek government figures, some 55,000 irregular migrants crossed the Greek-Turkish land border at Evros.
We are disturbed that since the beginning of 2012, despite high seas and poor weather conditions, three boats have attempted this perilous journey from Libya, with one going missing at sea. This boat, carrying at least 55 people raised the alarm on 14 January, warning of engine failure. Libyan coast guards informed UNHCR that 15 dead bodies, all identified as Somali, were found washed up on the beaches last week, including 12 women, two men and a baby girl. On Sunday, three more bodies were recovered. It was confirmed later that all those that perished were Somali residents of the makeshift site in Tripoli known as the Railway Project.
The other two boats that made it to Malta and Italy in January required rescuing. The first rescue of 72 Somali nationals by the Italian coast guard took place on 13 January. Those rescued included a pregnant woman and 29 children.
The second boat was rescued by the Maltese Armed Forces on 15 January with the support of the US Navy and a commercial vessel. In total 68 people were rescued from a dinghy found drifting some 56 nautical miles from Malta. A baby girl was born on one of the rescue vessels. Another woman reported a miscarriage during the voyage.
UNHCR welcomes the ongoing efforts of the Italian, Maltese and Libyan authorities to rescue boats in distress in the Mediterranean. We renew our call to all shipmasters in the Mediterranean, one of the busiest stretches of water in the world, to remain vigilant and to carry out their duty of rescuing vessels in distress.
For further information on this topic, please contact:
In Rome: Laura Boldrini on mobile +39 33 55 403 194
In Valetta: Fabrizio Ellul on mobile +356 99 69 0081
In Geneva: Sybella Wilkes on mobile +41 79 557 91 38”
Click here for link to statement.
The first group of rescued migrants for 2012 arrived in Malta on 15 January after being rescued by an Armed Forces of Malta patrol boat and an Italian cargo ship. The 68 rescued migrants are Somali asylum seekers and had left Libya four days earlier. Another boat carrying 72 migrants was rescued by the Italian coastguard on the 13th. This boat is also believed to have departed from Libya. UNHCR officials have interviewed the asylum seekers in Malta: “The new arrivals confirmed to UNHCR that the situation in Libya is still not stable and that it is particularly precarious for Sub-Saharan nationals. One Somali woman told UNHCR that they were afraid to go outside the house. Some even described the situation in parts of Libya as being similar to the lawlessness of Somalia. They explained that smugglers provided them with the only possible way out at this point.” The Times of Malta reported that two of the asylum seekers said “they paid armed Libyan militiamen $400 each to facilitate their crossing of the Mediterranean.”
Click here (IT) for article.
The Frontex Risk Analysis Unit (RAU) released its 3rd Quarter Report (July-September) for 2011 on 18 January. (See also 2nd Quarter Report (April-June 2011) and 1st Quarter Report (Jan-March 2011).) The reports contain a significant amount of information, graphs, and statistical tables regarding detections of illegal border crossings, irregular migration routes, detections of facilitators, detections of illegal stays, refusals of entry, asylum claims, and more.
The Report is based on data provided by Member States. The Report states that “Frontex and the Member States are currently harmonising their illegal-migration data, a process that is not yet finalised. Therefore more detailed data and trends in this report should be interpreted with caution and, where possible, cross-referenced with information from other sources.”
Here are extensive excerpts from the Q3 Report:
“Executive summary – In Q3 2011 most indicators monitored within FRAN community increased compared to a year ago. For example, detections of illegal border-crossing and refusals of entry both reached much higher levels than in Q3 2010. Moreover, more applications for international protection were submitted than in any other quarter since data collection began in 2008. Consistent with recent years, the majority of illegal border-crossings were limited to a small number of hotspots of irregular migration such as the Eastern and Central Mediterranean routes, accounting for 50% and 33% of the EU total, respectively. However, in Q3 2011 there was also a rise in the importance of the Western Mediterranean route, now representing nearly 10% of the EU total. At the EU level, the most commonly detected migrants were from Afghanistan, yet due to the recent increases in the number of migrants from Pakistan and Nigeria (by seven and ten times compared to Q3 2010, respectively) these nationalities have moved to the second and third position.
In Q3 2011 there were 19 266 detections of illegal border-crossing in the Eastern Mediterranean, a seasonal increase to a level almost exactly comparable with the same period in 2010. As was the case throughout 2010, detections were concentrated at the Greek land border with Turkey, where Afghans accounted for nearly half of all detected migrants. However, at this border section detections of migrants from Pakistan increased massively compared to last year and now rank second….
In contrast to the consistent wave of irregular migration in the Eastern Mediterranean, the situation in the Central Mediterranean has been volatile in 2011, dependent on the political developments and civil unrest across North Africa. For example, civil unrest in this region, particularly in Tunisia, led to a dramatic increase in detections in the Central Mediterranean early in 2011. Consequently, in March 2011 some 14 400 Tunisian migrants arrived in the Italian island of Lampedusa. In April an accelerated repatriation agreement was signed between Italy and Tunisia, which resulted in a 75% reduction in the flow of Tunisians, but the region was then inundated by large numbers of sub-Saharan migrants arriving in Lampedusa, Sicily and Malta, many having been forcibly expelled from Libya by the Gaddafi regime. Since the National Transitional Council successfully gained control of Libya, this flow stopped abruptly in August. However, in Q3 2011 there were 12 673 detections of illegal border-crossing on this route, where Tunisian and sub-Saharan migrants, particularly Nigerians, are still arriving in significant numbers.
In Q3 2011 there were more detections in the Western Mediterranean (3 568) since mid 2008. A wide range of migrants from North African and sub-Saharan countries were increasingly detected in this region. However, it is difficult to analyse the exact composition of the flow as the number of migrants of unknown nationality on this route doubled compared to the previous quarter. This may indicate an increasing proportion of nationalities that are of very similar ethnicity and/or geographic origin.
The flows of migrants arriving in the EU had a significant effect on the number of applications for international protection submitted: in Q3 2011 there were a massive 64 801 applications submitted across Member States. The largest increases in submitted applications were reported by Italy and involved nationals of Nigeria, Ghana, Mali and Pakistan. However, the applications submitted by nationals of Pakistan and Afghanistan also increased across a wide range of other Member States, such as Germany and Austria. In contrast to increasing applications for international protection were fewer detections of facilitators of irregular migration than ever before. This widespread and long decline may be because organized crime groups are increasingly recruiting would-be migrants by offering them legitimate entry to the EU with false or fraudulently obtained documentation. This is less risky and carries lower detection probability for facilitators than, for example, accompanying migrants across the border….
4.1 Detections of illegal border-crossing – [ … ] The third quarter of each year is usually associated with weather conditions favourable for approaching and illegally crossing the external border of the EU. Correspondingly, conditions that are favourable for illegal border-crossings are also more conducive to detecting them. The combination of these two effects resulted in the highest number of detections in each of the last few years being reported in Q3 2011. In contrast, in 2011 detections were higher in the second than in the third quarter, because of exceptionally high detections in the first half of 2011, rather than particularly low detections in Q3 2011. At the sea border, there were 15 418 detections which is a 44% reduction compared to Q2 2011, but a fivefold increase compared to Q3 2010. In contrast, there were 23 079 detections at the land border which was a 68% increase compared to the preceding quarter, but a 22% reduction compared to Q3 2010. Hence, detections decreased at the sea border, particularly in Italy, and increased at the land border to a level comparable to 2010….
[… ] In the first half of 2011 the situational picture of irregular migration to the EU was dominated by illegal border-crossings reported by Italy. This influx was due to a surge of Tunisians in Q1 and sub-Saharan African migrants in Q2 arriving in the Italian island of Lampedusa in the wake of major civil unrest in North Africa (the so-called Arab Spring), which has now, to some extent, decipitated. Hence, in Q3 2011 detections in Italy halved compared to the previous two quarters yet remained some six times higher than during the same period last year.
At the EU level the most commonly detected migrants came from Afghanistan, constituting a quarter of all detections despite a 15% decrease compared to the previous year (Fig. 3). The majority of Afghan migrants were detected at the border between Greece and Turkey, with the remaining mostly detected at the southern Italian blue border. Throughout 2010 the most commonly detected migrants were from Albania (mostly circular migrants to Greece), representing 25–45% of the EU total, although in many cases individuals may have been detected several times within a given period. However, in Q3 2011 detections of Albanians fell to negligible levels following their visa-free status for travel to the EU granted in December 2010 (Fig. 3).
Without question, detections of migrants from Pakistan and Tunisia have increased more than any other nationality over the last year (Fig. 3). In the case of migrants from Pakistan, in Q3 2011 most were detected at the border between Greece and Turkey, followed by the southern Italian blue border. This detection profile almost exactly mirrors that of migrants from Afghanistan. In contrast, migrants from Tunisia are almost exclusively detected in Italy, followed by Greece. Although detections of migrants from Tunisia increased dramatically compared with a year ago, they fell massively compared to the peak in Q1 2011.
Another notable phenomenon is the increased rate of migrants from Nigeria detected at the blue border (Fig. 3) mostly in Italy, with some evidence for increasing numbers in southern Spain. In the former case most departed from Tunisia, while in Spain most departed from Morocco. This trend is related to the threefold increase in the number of asylum applications submitted by Nigerian migrants almost exclusively in Italy.
Routes – As illustrated in Figure 4, during the first half of 2011 detections of illegal bordercrossing on the Central Mediterranean route, which comprises the blue borders of Italy and Malta, dramatically increased and exceeded those reported from the Eastern Mediterranean route, which is made up of the land and sea borders of Greece, Bulgaria and Cyprus. However, in Q3 2011 detections on the Eastern Mediterranean route, by following a remarkably seasonal pattern, similar to that of 2010, once more exceeded detections on the Central Mediterranean route, where detections fell dramatically compared with the peak in the first six months of 2011.
These routes not only differed in their trends over time but also in the composition of detected nationalities. For example, detections on the Eastern Mediterranean route have, for the last year at least, comprised of large numbers of Asian, North African and sub-Saharan nationalities including increased detections of migrants from Pakistan. In contrast, nationalities detected in the Central Mediterranean have evolved throughout 2011. In Q1 2011 mostly Tunisians were detected after they had departed from their own country; in Q2 2011 reduced but still significant numbers of Tunisians were joined by mix of sub-Saharan Africans, many of whom were forcibly expelled from Libya. In the current reporting period detections of Tunisians remained stable, yet the number of sub-Saharan Africans decreased. Figure 4 also shows that in Q3 2011 detections on the Western Mediterranean route increased, mostly of migrants of unknown nationalities but also of Algerians and Nigerians.
4.1.1 Eastern Mediterranean route – Since data collection began in early 2008, the Eastern Mediterranean has maintained its status as a hotspot of irregular migration. Detections have followed a remarkably seasonal pattern invariably peaking in the third quarter of each year, being concentrated at the border between Greece and Turkey with a shift from the sea border to the land border in early 2010. Afghan migrants have consistently featured highly on the list of most detected nationalities. In 2010 there was an increase in Algerian migrants that has since subsided, but more recently there has been a massive increase in the number of migrants from Pakistan detected on this route.
In the current reporting period, detections of illegal border-crossing on this route increased seasonally and in line with previous years, almost exclusively due to a massive increase in detections at the Greek land border with Turkey, where detections increased from 10 464 to 18 509 over the same period. Based on seasonal pattern of detections in previous years, the increase in pressure on this route during Q3 2011 was not entirely unexpected and reached a level almost exactly comparable to that of a year ago. Indeed, according to data collected during JO Poseidon the average number of detections per day immediately subsequent to the current reporting period exceed that during the same period in 2010, immediately prior to the deployment of the first JO RABIT 2010….
4.1.2 Central Mediterranean route – Irregular migration in the Central Mediterranean has fluctuated in size and composition during 2011, depending on the political and civil unrest across North Africa. Initially detections in the Central Mediterranean massively increased in early 2011 due to civil unrest in the region, particularly in Tunisia, Libya and, to a lesser extent, Egypt. As a result, in Q1 some 20 000 Tunisian migrants arrived on the Italian island of Lampedusa. In Q2 2011 the flow of Tunisian migrants was reduced by 75% following an accelerated repatriation agreement that was signed between Italy and Tunisia. However, the region was then inundated by large numbers of sub-Saharan migrants detected across the region, many claiming to have been forcibly expelled from Libya by the Gaddafi regime. In the current reporting period irregular migration in the region has eased somewhat due to democratic elections* in Tunisia and the National Transitional Council successfully gaining control of Libya. However in Q3 2011 arrivals increased from Egypt and subsequent to the reporting period there was some indication that the flow from Libya has been reinstated.
According to the FRAN data, in Q3 2011 there were more than 12 500 reported detections of illegal border-crossing on the Central Mediterranean route, a 50% decrease compared to the ‘peak’ reported during the first and second quarter of 2011, but still massively increased compared to the background detections throughout all of 2010. Most detections in the Central Mediterranean region were reported from the Italian Pelagic Islands, where detections also fell by a half compared to the previous quarter. In some areas the decrease was even more marked. For example, in Sicily detections fell by 75% such that in Q3 2011 a stable trend of Egyptians and Tunisians constituted nearly all detections. Detections ell to an even greater extent in Malta.
4.1.3 Western Mediterranean route – Irregular migration across the Western Mediterranean towards southern Spain was at a low level through most of 2010 averaging just over a thousand detections per quarter. However, pressure has been steadily increasing throughout 2011 until the current reporting period when there were more than 3 500 detections of illegal border-crossing – an increase of two thirds compared to Q3 2010. As a result, the Western Mediterranean is now the third largest point of entry for illegal bordercrossing into the EU. The most common and the most increasingly detected migrants were of unknown nationalities, followed by migrants local to the region from Algeria and Morocco. There were also significant increases in migrants from further afield such as Côte d’Ivoire, Guinea, Nigeria and Congo.
4.1.4 Western African route – The cooperation and bilateral agreements between Spain and the rest of the Western African countries (Mauritania, Senegal and Mali) are developing steadily. They are one of the main reasons for the decrease in arrivals on this route over the last year, as is the presence of patrolling assets near the African coast. Despite a slight increase in Q4 2010, detections on this route remained low and totalled at just 50 detections of exclusively Moroccan migrants in Q3 2011.
Click here for Frontex Press Statement.
Click here for Q3 Report.
Click here for previous post on Q1 and Q2 Reports.