Between human rights and border control: the EU migration policies in the Mediterranean at trial

Earlier this year, a team of international lawyers submitted a complaint to the International Criminal Court accusing the EU of crimes against humanity which allegedly resulted from its migration policy in the Mediterranean. In a 245-page document, the lawyers claim that the EU is responsible for thousands of deaths of migrants who drowned in the Mediterranean while fleeing Libya, as a direct consequence of the externalisation of its migration policies.

Following the rise in migrants’ arrivals in 2015, the EU was pressured to respond to the growing humanitarian crisis and at the same time deal with the political dispute among Member States about responsibility for the new arrivals. Facing lack of political will, incapacity and the instrumentalisation of migration for political purposes in many states, the EU’s response to the humanitarian crisis at its external border focused on restructuring migration management on the European level by focusing on internal security, strengthening the borders and the expulsion of the irregular migrants and asylum seekers. One important pillar of the new migration management policy was the concept of externalisation, which consists of using various instruments that aim to keep immigration management outside the EU borders. Externalisation often occurs through responsibility-sharing with third countries – or, as some have argued, through discarding the responsibility by passing it to departure or transit third countries. The 2015 European Agenda on Migration pushed for increased cooperation with third countries in the area of returns and readmission as one of the key political solutions in responding to what was framed as a “refugee crisis”.

Labelling the increased number of migrants to Europe as a “crisis” allowed policy-makers to justify actions and adopt restrictive measures that have been widely criticised by human rights actors.

On 3 June 2019, international lawyers Juan Branco and Omer Shatz, submitted a communication to the International Criminal Court (ICC) that provides evidence which they allege “implicat European Union and Member States’ officials and agents in Crimes Against Humanity, committed as part of a premeditated policy to stem migration flows from Africa via the Central Mediterranean route, from 2014” and calling for the ICC to open an investigation into this matter.

The complaint focuses on three main aspects of the EU policies between 2015 and 2019: the transition from Italian rescue operation Mare Nostrum to Frontex Joint Operation Triton; the ousting NGOs conducting search and rescue (SAR) missions; and the EU’s cooperation with the Libyan Coast Guard; and claims that these policies resulted in:

• The deaths by drowning of thousands of migrants
• The refoulement of tens of thousands of migrants attempting to flee Libya, and
• Complicity in the subsequent crimes of deportation, murder, imprisonment, enslavement, torture, rape, persecution and other inhuman acts, taking place in Libyan detention camps and torture houses.

S. Carrera, J. Santos Vara and T. Strik, The external dimension of EU migration and asylum policies in times of crisis, Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis

Legality, Rule of Law and Fundamental Rights Reconsidered, 2019, available here.

Communication pp. 8.

Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute. EU Migration Policies in the Central Mediterranean and Libya (2014-2019), pp. 8.

This post was written by PICUM’s Legal Trainee Marina Kopacz-Thomaidis.The Italian operation Mare Nostrum was employed as a reaction to images in the media of overcrowded boats with migrants drowning in the sea. One year in, Mare Nostrum had rescued 150 810 migrants. In contrast, its successor Triton, which replaced the Mare Nostrum, led to a thirtyfold increase in the deaths at sea. It is also crucial to point out that Mare Nostrum covered 70,000 km² of the Mediterranean Sea while the range of Triton extended no more than 30 nautical miles from the Italian coast of Lampedusa. Even though Mare Nostrum was an Italian national operation and not a joint cooperation of the EU’s 28 member states, its 9-million euro monthly budget was over three times higher than the 2,9 million euro dedicated to Triton each month. Moreover, as far as manpower was concerned, the personnel for Mare Nostrum included 900 military staff, whereas Triton only had 65 officers.

By labelling migration in the Mediterranean as a ‘security issue’, the communication argues, the EU shifted its migration policy from one employing SAR missions as a humanitarian response, to treating the sea operations as a means to stop boats from reaching the EU’s external borders, with a view to deterring further arrivals.

According to the communication, the EU’s responsibility under international criminal law is based on evidence that EU officials and Member States’ agencies (most notably, Frontex and the Italian Coast Guard) were aware of the consequences of the shift from Mare Nostrum to Triton and knew that the change would result in a higher number of casualties. The ICC complaint argues that the decision not to restore the Mare Nostrum’s operation and to proceed with the policy change, even after knowing of its ongoing lethal consequences, demonstrates the criminal intent (mens rea) of the involved actors. To substantiate this argument, the communication also recalls that Mare Nostrum was criticized by Frontex as constituting a ‘pull factor’ motivating more migrants to attempt to reach the Italian coasts, enabling smugglers to organize crossings in more dangerous conditions which led to increasing the risk of accidents on the sea.

Communication pp. 26.

Communication pp. 25.The second policy that constitutes the basis of the claim relates to the ousting of SAR NGOs from the Mediterranean. In order to close the Mediterranean route, the EU, according to the communication, had to implement a two-fold strategy: firstly, delegitimise, criminalise and consequently prevent NGOs from conducting rescue missions and disembarking boats in European ports; and secondly, replace rescue missions with third-party (for instance, by the Libyan Coast operations Guard) which would intercept boats with migrants, and refoul and detain those trying to escape Libya. As a result of this strategy implemented between 2016 to 2018, 40,000 migrants were pushed back to Libya.

Since the enforcement of Triton from January 2014 and the decrease of SAR operations, and limited operations of EU or national vessels, NGOs have become the crucial actors in rescue operations. NGOs managed to the rescue one quarter of the total number of people rescued in 2016. Nevertheless, the authors of the communication underline that Italian and EU authorities sought to discredit, intimidate and even criminalise the NGOs operating in the Mediterranean to prevent the arrival of new migrants to the EU via the Mediterranean at all costs. The NGOs were and continue to be accused of cooperating with smugglers and of being involved in smuggling.

Communication pp. 45,46.Since the uprising against Muammar Gaddafi’s forty-year rule in 2011, Libya has been tormented by ongoing military conflicts and violence. In February 2011, the UN Security Council referred the situation in Libya to the ICC in its Resolution 1970; since then, the country has been under examination by the ICC Prosecutor. Numerous reports from international organisations, NGOs and national authorities (The Report of the UN Support Mission in Libya (UNSMIL) and the UN Human Rights Office from December 2018, Concluding observation from Committee against Torture on Italy – Libya Memorandum of Understanding from 2017, Human Rights Watch Report No Escape from Hell, Amnesty International Report Between the Devil and the Deep Blue See) have described the dire conditions of the detention centres and the human rights violations and abuses committed by state authorities, smugglers, traffickers and armed groups. Migrants and refugees are subjected to unlawful killings, torture, arbitrary detention, gang rape, slavery, forced labour and extortion during their entrance, stay and transit through Libya.

Despite reports from NGOs and the UN, the 2017 Memoranda of Understanding concluded between Libya and Italy and the 2017 Malta Declaration from the members of the European Council consolidated the EU position on its cooperation with Libya and prioritised assistance to the Libyan Coast Guard in the form of training, material and strategic support.

In its September 2018 position on the returns of migrants to Libya, the UN High Commissioner for Refugees (UNHCR) urged states “to refrain from returning to Libya any third-country nationals intercepted or rescued at sea and to ensure that those in need of international protection are able to access fair and effective asylum procedures upon disembarkation.”

The claim submitted to the ICC underlines that by undertaking all the above-mentioned actions the “EU and member state officials and agents carefully designed and meticulously implemented a highly coordinated naval border control operation, with full awareness of the lethal consequences of their conduct.” It further alleges that without the implementation of the EU’s second policy (cooperation with Libya and criminalisation of NGO-led search and rescue missions) the crimes against targeted population would not have occurred.

According to the ICC complaint, the implementation of the new approach to migration management is directly responsible for making the central Mediterranean the world’s deadliest transit route for migrants. Citing International Organization for Migration’s data, the communication specifies that “between January 1st, 2014 and end of July 2017, over 14,500 people died or were reported missing. Two incidents in one week in April 2015 alone cost the lives of 1,200people.” Meanwhile, many European countries and the EU itself continue to do everything in their power to strengthen the borders of ‘Fortress Europe’ by deploying new solutions to patrol the sea or to deny NGO rescue boats the right to disembark in safe ports. There isn’t a week without news about ships carrying hundreds of migrants in dire conditions who are waiting to be allowed to enter Italian or Maltese ports.

While much media coverage is devoted to the appalling conditions in US detention centres and to the migration policies of the Trump administration , involving plans to build walls or keeping children in indefinite detention, more attention must be paid to the European Union responsibility in creating similar situations at its own borders. We cannot ignore that in Europe, which stands as an example of high standards for the protection of human rights, EU and national policies contribute to the existence of detention camps in Libya, which the German embassy in Niger has deemed worse than concentrations camps, and allow migrants to drown in the sea while observing them via drones from safe distance as revealed by Frontex’ operation footage.

UNHCR Position on Returns to Libya (Upadate II), September 2018, available here.

Communication pp. 10.

Communication pp. 9.

Communication pp. 8.