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    EU dilemma: Returning migrants to unsafe places

    Sea-Watch rescue operation in the Mediterranean Sea, credit: Erik Marquardt

    A new report claims that EU member states, in particular Italy, are violating the international law of the sea by returning, directly or indirectly, illegal migrants in distress in the Mediterranean Sea to countries that cannot be considered as places of safety.

    The report was written by two German law professors, Anuscheh Farahat and Nora Markard, for the Brussels office of the Heinrich Böll Foundation and was timely presented at a press briefing on Wednesday (19 February) at Press Club Brussels. On Monday, the Foreign Affairs Council decided to end the EU-funded sea rescue operation Sophia in the Mediterranean Sea.

    Over the last six years, more than 19,000 people have lost their lives in the Mediterranean. The numbers have decreased but migrants still risk their lives trying to cross the sea to Europe. In fact, EU decided already last year to cease ship patrols in the framework of Sophia and replace it by a new maritime operation aimed at enforcing the arms embargo against Libya.

    In recent years sea rescue operations have gradually been outsourced to the Libyan Coast Guard, trained and funded by EU.

    Places of safety

    “EU cannot avoid responsibility by outsourcing the dirty job to proxy countries, in particular the Libyan Coast Guard,” the professors said. “By backing down to populist sentiments in some member states, EU is undermining human rights.”

    In their legal study, the authors examined the concept of “places of safety” and assessed whether the countries in north Africa – Algeria, Egypt, Libya, Morocco and Tunisia – can be considered as such places for migrants and refugees.

    The obligation to render assistance to persons at distress at sea is a long-standing obligation under customary international law and has been specified in the UN Convention on the law of the sea and following guidelines. Places of safety are defined as places where the life of rescued survivors at sea is not threatened and where their basic human needs are meet.

    A place cannot be considered be safe if refuges risk being transported from there to another country where their life and freedom would be threatened (non-refoulement principle). According to the authors, the concept of “place of safety” overlaps largely with the concept of safe country of origin or return in the 1951 Geneva Refugee Convention.

    Furthermore, an EU directive considers a country safe when there is a democratic system and it can be shown that there is no persecution, no torture or inhuman or degrading treatment or punishment, and no threat of violence because of an armed conflict. Applying these criteria, the authors concluded that Libya under no circumstances can be considered a place of safety.

    Detention centres

    Migrants disembarked in Libya are normally transferred to detention centres where they are imprisoned  under appalling conditions. Media has been reporting about torture, abuse and slavery in the centres. In the on-going civil war in Libya, the Tajoura detention centre in Tripoli was hit by an attack in July last year which resulted in the death of more than 50 migrants.

    EU is aware of the unacceptable conditions in the detention centres and have demanded that they should be closed but is falling short of declaring Libya an unsafe country. Libya is a failed state, controlled by fighting militias and divided between an UN-backed Government of National Accord in Tripoli and a Libyan National Army in Tobruk, each side supported by other countries.

    The authors consider that the other north-African countries cannot generally be considered as safe for different reasons. They may not have an asylum system in place, or not respect the non-refoulement principle, or they may be dangerous for women, migrants and other vulnerable groups such as LGBTI people.

    In fact, embarkment of refugees in an unsafe place without checking the asylum needs of each individual is considered as a kind of “collective punishment” and is banned by the European Convention of Human Rights. A ruling of the European Court of Justice has also determined that “collective punishment” is illegal.

    The study analyses the legal situation when rescued persons are disembarked in unsafe places in three scenarios: by EU member state vessels, in a so-called Maritime Rescue Co-ordination Centre managed by a member state, when a member state orders private vessels to disembark rescued people and when they instruct a third country to carry out the operation.

    EU responsibility

    In all three cases, according to the law professors, member states cannot escape responsibility, if they actively contribute to violations of the international law of the sea and other conventions by directing rescued people to unsafe places. A private shipmaster might find himself in a dilemma but is dutybound to disembark rescued people in a safe place.

    During last year, the European Commission has repeatedly been asked to explain the rescue operations and procedures in the Mediterranean Sea when vessels have been banned to disembark in Italian harbours and forced to look for other harbours or when the rescue coordination centre has called on the Libyan Coast Guard.

    The standard reply has been that EU has no competency as regards decisions on where ships with rescued migrants should embark and that it is up to the coordination centre to take the operational decisions in every specific situation.

    The Brussels Times asked the law professors if EU can be held accountable for acts committed by member states or, alternatively, initiate infringement procedures against those countries that have directed vessels to unsafe places. Complicating the issue is that the drafting of a common EU list of safe countries or places is still on the Commission’s do-list.

    For the moment, there seems to be no clear answer. On the one hand, infringement is about transposition of EU law. The law of the sea concerns states and does not involve EU. On the other hand, the protection of EU’s external borders and human rights conventions do concern EU.

    “It’s rather a clash between EU’s self-image and reality on the ground,” explained Nora Markard.

    Divisive issue

    Migration remains one of the most divisive and important issues on EUs agenda. This was also reflected in the Council decision to replace the Sophia operation by a military maritime presence in the Mediterranean to enforce the arms embargo against Libya. But the new force will face a dilemma – rescuing migrants at distress at sea or effectively enforcing the arms embargo.

    “It means that it is not going to be the same area of operation as the one of Sophia. Sophia was covering the whole Libyan coast, from one side to the other. If we want to control the arms embargo, we have to concentrate our surveillance on the eastern part,” explained High Representative Josep Borrell at the press conference after the Council meeting.

    He admitted that some member states had raised “legitimate concerns” about the so-called pull effect of EU vessels in the Mediterranean – that is, that their very presence could encourage desperate migrants to risk their lives trying to cross the sea. Personally, he did not share this view but “in case of observation of pull factors, the maritime assets will be withdrawn from the relevant areas.”

    “There is no real evidence to indicate that rescue vessels ‘pull’ migrants,” said Anuscheh Farahat. “The decision to leave depends on so many factors.”

    Erik Marquardt, a German MEP (Greens/EFA) and a photojournalist who has documented the situation of refugees in different routes, did not imagine that EU vessels would ignore distress signals and move to another part of the sea. “If that would be the case, I would be where refugees are crossing the sea, if I would be a weapons smuggler.”

    M. Apelblat
    The Brussels Times