By Jelia Sane
International criminal justice and the global migration crisis
On 27 October 2017, Dr Agnes Callamard, the United Nations (UN) Special Rapporteur on extrajudicial, summary or arbitrary executions presented a highly critical report to the UN General Assembly concerning States’ failure to respect and protect the right to life of migrants (‘Unlawful death of refugees and migrants’, 15 August 2017 A/72/335). Whilst acknowledging, correctly, that the greatest risk to migrants during flight is the one posed by criminal networks, and in particular smuggling and trafficking networks, the Special Rapporteur found that ‘in a global environment where refugees and migrants are demonized, and their movements criminalized (...) countries around the world have designed policies based on deterrence, militarisation and extraterritoriality which implicitly or explicitly may tolerate the risk of migrant deaths as part of an effective control of entry’ (at §10) This risk is compounded by States’ failure, by and large, to conduct formal investigations into migrant deaths, which may constitute a further violation of the right to life. As noted by the Special Rapporteur, it seems that ‘this crisis is characterized (....) by an overall tolerance for its fatalities’ (at §1)
According to a study by the United Nations High Commissioner for Refugees (‘UNCHR’), by the end of 2016, over 65 million people worldwide had been forcibly displaced as a result of persecution, armed conflict, violence or human rights abuses. The principal drivers of displacement were the conflicts in Syria, Iraq, Yemen, the Central African Republic, Sudan and South Sudan. The vast majority of people fleeing remained in their home countries, trapped in situations of internal displacement, or in their regions of origin. With the exception of Turkey, developing countries shared a disproportionately large responsibility for hosting refugees (for example Pakistan, Lebanon, Kenya, Ethiopia and Uganda are amongst the top 10 refugee hosting nations). But hundreds of thousands of migrants have sought to move beyond nearby countries of first arrival and to seek international protection in the industrialised world, principally in Member States of the European Union (EU), Australia and the US. Perversely, these wealthy countries, which have developed rights-sensitive standards and procedures for assessing asylum claims, have implemented various strategies to control and stem the flow of migration to their shores, thereby frustrating access to international protection for those who need it. These strategies are often cast by political leaders as being a necessary response to a security and/or humanitarian imperative insofar as they purport to disrupt the business model of smuggling, however in reality the absence of safe and legal pathways to protection greatly increase the risk to migrants by forcing them to undertake more perilous journeys, which in turns fuels smuggling and trafficking.
The Special Rapporteur’s report highlights a number of examples of this approach, including:
- The excessive use of force by border control agents and other agents involved in migration control, for instance ‘push back’ operations on the high seas without water, food or interdiction of disembarkation. These practices are linked to the increased militarisation and securitisation of border control, including through the deployment of military equipment, drones and satellite surveillance to monitor migration routes.
- Border externalisation policies and in particular assisting, training and funding agencies in third countries with poor human rights records to arrest, detain, process, rescue or disembark and return refugees and migrants. The EU has for example come under heavy criticism for its involvement in Libya, which has included providing training and assistance to the Libyan coastguard to intercept boats in the Mediterranean. Individuals returned to Libya are then detained in official centres under appalling conditions. The UN’s human rights chief, in a statement issued on 14 November 2017, declared that the ‘suffering of migrants detained in Libya is an outrage to the conscience of humanity’ and that ‘the European Union’s policy of assisting the Libyan coastguard to intercept and return migrants in the Mediterranean [is] inhuman’
Other examples of punitive and restrictive measures which may breach the right to life and which are not expressly referred to in the report include Australia’s off-shore detention policy and, potentially, the abysmal reception conditions combined with the lengthy delays experienced by asylum-seekers and migrants in Greece.
It has been argued that international criminal law (ICL) may have a role to play in this context, by providing a mechanism for the pursuit of accountability in cases of egregious violations of migrants’ rights. This is a view seemingly shared by the Special Rapporteur who recommends, inter alia that the International Criminal Court (ICC) consider opening preliminary investigations ‘into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the Courts have been met’ (§90). It appears that the Office of the Prosecutor (OTP) may already be taking steps in that direction. In February 2017, 17 international law academics submitted an Article 15 communication to the OTP alleging that the Government of Australia was liable for multiple crimes against humanity against asylum-seekers, including imprisonment, torture, deportation and persecution, perpetrated in its offshore detention centres on Manus and Nauru islands. The OTP has yet to indicate whether or not it will open a preliminary investigation however in May 2017 Fatou Bensouda told the Security Council that her office was “carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya” following widespread reports of gross human rights violations by both state and non-state actors.
There is traditionally a tendency to associate international justice with acts of spectacular violence (for example Rwanda, the Balkans, the DRC and so on) however ‘actions do not have to lead to piles of bodies to amount to international crimes’ as one commentator notes. That this is so has already been acknowledged by the OTP who in 2016 announced that it would also prioritise the investigation and prosecution of environmental crimes. There is no obvious doctrinal reason why the OTP should not similarly investigate serious violations against the rights of migrants, provided of course that the jurisdictional requirements under the Rome Statute are satisfied. On the contrary, given that the scale of the global migration crisis- and the accompanying abuses- are staggering and show no signs of abating, this is an opportune moment to consider whether international justice mechanisms are a useful means to help uphold the rights of refugees and migrants.