Migrant Pushbacks in Italy
Grace Wilson is a graduate student at AUP, part of the MA in Diplomacy and International Law program. She is from McGehee, Arkansas, USA.
I. Introduction
Over the past decade or so, many European countries have been involved in controversial and deadly migrant pushbacks. According to InfoMigrants, from May 1 to August 31 of 2023, Protecting Rights at Borders reported over 9,500 pushbacks from European Union (EU) borders (InfoMigrants). The central Mediterranean route, going from North Africa to Italy or Malta, has quickly become the busiest migration route to the EU (InfoMigrants). Italy has long been a port for entry into the European Union by migrants, refugees, and asylum-seekers, and the continuous influx of migrants to its borders has greatly shaped its national and international policy. Italy’s new migration policies and procedures are causing incredible strife between the legal rights of migrants and the safety of those who are often fleeing their home countries because they have no other choice. These actions are additionally flagrantly illegal and breaking many aspects of European and International law, which is why I chose this topic. This paper will start by discussing relevant aspects of law, migrant routes to the European Union and the actors involved, then move on to a case brief on Hirsi Jamaa & Others v Italy followed by an analysis, and then the conclusion.
II. The Law
There are various laws concerning European states, including Italy, with respect to their state territory, borders, refugee rights, and the principle of non-refoulement. They are briefly explored below as they relate to the case Hirsi Jamaa & Others v Italy and other pushbacks being performed by Italy. Domestic law, international law, and European law will be discussed.
a. Relevant Domestic Law
The Italian Navigation Code, Article 4, explains that an Italian vessel is considered to be the territory of the state: “Italian vessels on the high seas and aircraft in airspace not subject to the sovereignty of a state are considered to be Italian territory,” (Hirsi Jamaa and Others v. Italy). The bilateral agreement between Italy and Libya, also known as the Treaty of Friendship, Partnership, and Cooperation, is also important in that it has had an increasingly negative impact on the rights of refugees and asylum seekers (such as right to life, freedom of persecution, and freedom from refoulement) (Amnesty International). This agreement between the two countries allowed Italy to return any migrants to Libya, with the agreement first signed in 2007 and then again in 2009 (Hirsi Jamaa and Others v. Italy). The returning of migrants to Libya does not adequately take into account the migrants' precarious status in Libya, as they would be at risk of persecution and being returned to their countries of origin.
b. Relevant International Law
The 1951 Geneva Convention relating to the Status of Refugees defines the term ‘refugee’ and outlines the rights afforded to them and the responsibilities of the contracting states. It also specifically defines and prohibits non-refoulement, the principle of no return or expulsion if it would put the migrant in danger, in Article 33 (Convention and Protocol Relating to the Status of Refugees). The 1982 United Nations Convention of the Laws of the Sea discusses the duty to assist, the duties of the state flag, and the status of ships. This is particularly important as many of the migrants are on unstable vessels and in need of great assistance. The duty to rescue at sea is also universal and has been the custom for thousands of years. Additional relevant measures include the 1979 International Convention on Maritime Search and Rescue, the Protocol against the Smuggling of Migrants by Land, Sea, and Air, Resolution 1821 of the Parliamentary Assembly of the Council of Europe (Hirsi Jamaa and Others v. Italy).
c. Relevant European Law
The Charter of Fundamental Rights of the European Union specifies in Article 19 that the collective expulsion of aliens is prohibited (Charter of Fundamental Rights of the European Union). The 1985 Schengen Agreement specifies the movements of peoples regarding European borders. It allows for freer movement between member states (Schengen Agreement and Convention). The Council Regulation (EC) no. 2007/2004 established a European Agency for the Management of Operational Cooperation at the External Borders of Member States of the European Union (aka Frontex) (Council Regulation (EC)). Frontex plays a large part in migratory routes in the Mediterranean.
III. Migrant Routes and Frontex
There are many migratory routes to gain access to the European Union. The most popular of these are through the Mediterranean Sea. There are three different Mediterranean routes: The Central Mediterranean route which goes from Algeria, Egypt, Libya, and Tunisia to Italy and Malta, the Western Mediterranean route which goes from Algeria and Morocco to Spain, and the North-west Africa Maritime route which goes through Senegal, Mauritania, Morocco, and Western Sahara to the Canary Islands (UNHCR).
These migratory routes involve several actors including states, smugglers, and Frontex, which is tasked with the management of Europe’s external borders. Frontex has become incredibly problematic in the context of migrant pushbacks as it has been authorizing many of them. There have been two separate actions against Frontex for their complicity in these rights violations, one by the Syrian Justice and Accountability Centre to the International Criminal Court (ICC) and one by Front-Lex (Statewatch). The Communication to the Office of the Prosecutor of the ICC is quite thorough, going in depth into the crimes Frontex has committed and/or been complicit in. Including, “…criminal liability within the jurisdiction of the Court, for policies resulting in i) the deaths by drowning of thousands of migrants, ii) the refoulement of tens of thousands of migrants attempting to flee Libya, and iii) 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” (Communication to the Office of the Prosecutor of the International Criminal Court). Many of the crimes illustrated through the document are based in Italy because of the Mare Nostrum program, which was designed to protect migrants in the Mediterranean Sea, but was systematically used to push migrants back. The ICC announced in 2020 that it would be opening investigations against Frontex for potential rights violations. All of these actors have had large impacts on the policies of European countries that have external borders to the EU. Particularly Frontex and smugglers, as smugglers are often used as an excuse to crack down on border control and migration to prevent illegal actions. Smugglers are an increasing problem as they are only motivated by profit, resulting in monetary exploitation, sexual abuse, and human trafficking (Utsch). European Union countries and other countries of the Mediterranean, such as Libya, should be more focused on fighting the smugglers and not removing migrants.
IV. Case Brief
Hirsi Jamaa & Others v Italy regards the pushback of migrants from the Mediterranean Sea, heading to Italy, to Libya. It was brought to the European Court of Human Rights (the Court) in 2009 on the basis of the violation of the European Court of Human Rights Convention on the part of Italy. The parties involved include 11 Somali nationals, 13 Eritrean nationals, and the Italian Government. The principal allegations by the applicants, the Somali and Eritrean nationals, were that their transfer to Libya by Italian authorities violated Articles 3 and 13 of the European Court of Human Rights Convention, and Article 4 of the Protocol Number 4 of the Convention. The hearing for this case took place in the summer of 2011. Below, I will do a case brief over Hisri Jamaa and Others v Italy before moving onto an analysis of the court decision.
a. The facts of the case:
The applicants left the coast of Libya aboard three vessels, heading for Italy.
On May 6, 2009, they were intercepted by the Italian Revenue Police and Coastguard.
The occupants on the Libyan vessels were transferred to Italian military ships, where their belongings were confiscated and no effort was made to identify them.
The migrants were then handed over to the Libyan authorities in Tripoli despite objections from the occupants.
At a press conference, the Italian Minister of the Interior stated that the pushbacks were a result of the bilateral agreements signed with Libya in 2009.
Over the course of 2009, Italy conducted nine similar pushback operations.
Two of the applicants died shortly after the incident in question, while 14 of the applicants were granted refugee status by the UNHCR office in Tripoli.
There is a large database of relevant international material brought forth by the United Nations, non-governmental organizations, and other external sources. These materials define and illuminate the migratory and human rights situations in Libya, Somalia, and Eritrea as they pertain to the case. They also outline the various legal sources and definitions that should and could be used by the Court.
b. Preliminary issues raised by the Italian government:
Issues were raised by the government regarding the validity of the power of attorney provided by the applicant’s representatives and that the applicants failed to exhaust national court remedies. The Court however found these preliminary issues to be inadmissible and moved on with the case.
c. The issue of jurisdiction under Article 1 of the Convention:
The Italian government put forth that the applicants had been aboard ships and not in the total control of the state. The court decided that the events had fallen under Italy’s jurisdiction based on the meaning of Article 1, ensuring the rights of everyone in a party’s jurisdiction, of the European Court of Human Rights Convention.
d. Alleged violations under Article 3 of the Convention:
The applicants asserted that they were at risk of torture or inhumane or degrading treatment in Libya and in their respective countries of origin, should they be returned by the Libyan government. The court split this provision into two questions: were they at risk of torture or inhumane treatment in Libya, and what was the danger of being returned to their countries of origin? In the part of the first question, the court decided that the applicants had been at risk in Libya and the Italian government would have known this and therefore there was a violation of Article 3 of the Convention in the terms of Libya. For the second question, the court decided that the transfer of the applicants to Libya constituted a violation of Article 3 of the Convention because they were in danger of being returned to their countries of origin.
e. Alleged violations under Article 4 of Protocol No. 4 of the Convention:
The Italian government claimed that this provision did not come into play in the scenario as the applicants had not crossed the national border. The applicants disagreed, as they were on Italian ships which were considered part of the state as per the Italian Navigation Code. The court decided that the removal of the applicants from the Italian ships to Libya was collective expulsion and therefore in violation of Article 4 of Protocol No. 4 of the Convention.
f. Alleged violations under Article 13 of the Convention:
The applicants claimed that they had not been afforded remedy under Italian law regarding the violations of Article 3 and Article 4 of Protocol No. 4 of the Convention. The court decided that due to the case facts, there had been a violation of Article 13 of the Convention.
g. Final decisions by the Court:
Decided by 13 to 4 votes to strike the deceased applicants, Mr. Mohamed Abukar Mohamed and Mr. Hasan Shariff Abbirahman from the list of applicants.
Held unanimously that the applicants were in the jurisdiction of Italy for the purposes of Article 1 of the Convention.
Held unanimously that there was a violation under Article 3 of the Convention.
Held unanimously that there was a violation under Article 4 of Protocol No. 4 of the Convention.
Held unanimously that there was a violation under Article 13 of the Convention.
Held unanimously that the state must pay the applicants the following amounts: 15,000 EUR in reparations and 1,575.74 for costs and expenses (Hirsi Jamaa and Others v. Italy).
V. Analysis
Based on the above case, along with other cases and information provided, it is clear that these pushbacks are explicitly breaking international law. Jamaa is not the first case against Italy regarding its actions against migrants and it is likely to not be the last. In the above case, it is interesting to see how the Italian government tried to justify its actions. I think the most important aspect is when they claimed that the migrants were on Italian ships and therefore had not crossed a natural border (Hirsi Jamaa and Others v. Italy). This shows an almost bureaucratic approach to the migration crisis in the way that it focuses more on the tedious aspects of the law. It is more like a business contract than law focused on asylum seekers and human rights. There is a concept put forth by the authors of “Weaponizing Rescue” that managerialism is the dominant paradigm for migration policy within the European Union (Keady-Tabbal and Mann). I believe that this is apt in Italy’s new migration policies that are used to justify the expulsion of migrants. The rescue and treatment of migrants has been increasingly turned into administrative policies that are more concerned with protecting borders. This is a serious problem because it completely undermines the law and puts thousands of people at risk. With the legal action against Italy and against actors like Frontex, there is hope that significant change can be implemented throughout the European Union regarding its current treatment of migrants.
VI. Conclusion
From the ruling of this court case in 2012 to today, many European countries have continued to participate in these illegal migrant pushbacks. The Mediterranean migration route is the most popular and therefore, the Mediterranean countries of the EU need to be particularly vigilant in following the law set forth to protect asylum seekers and migrants. Italy has shown an administrative approach to circumvent its responsibilities to these protected peoples. It has to stop and hopefully there will be significant change regarding how Italy and other EU countries and actors will act regarding migration.
Bibliography
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Image Credits:
https://www.bbc.com/news/world-europe-62283202
