Published in January 2019.
This module is a resource for lecturers
This section contains material that is meant to support lecturers and provide ideas for interactive discussions and case-based analysis of the topic under consideration.
Exercise 1: Irregular migration counter-measures and their impact on combatting smuggling of migrants, while respecting the rights of migrants
Boxes 10-15 provide information, reflecting different perspectives and sources (media, academics, NGOs) on actions taken by Italy (a country particularly affected by migrant smuggling operations) with the purpose of countering irregular migration. The purpose of the exercise is to facilitate, through real-life examples, students' awareness and knowledge of the complex dynamics of migrant smuggling, as well as the different interests and priorities of intervening actors that converge into the counter-migrant smuggling discourse.
Italy-Libya cooperation on migration
[In 2003 and 2004], Italy and Libya organised the collective return to Libya of those migrants who had arrived in Lampedusa after a transit in Libya. After 2009, direct push-back was facilitated, and boats could be intercepted at sea and returned to Libya, before they made land on Italian territory.
European University Institute, MPC Blog, Debate Migration, Is it time for Italy to resume cooperation with Libya in the field of migration?
Push back policy, Italy (2009-2011)
The applicants, eleven Somali nationals and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento), that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police (Guardia di finanza) and the Coastguard. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them.
All their personal effects, including documents confirming their identity, were confiscated by the military personnel. On arrival in the Port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the Applicants' version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian Ships.
At a press conference held on 7 May 2009 the Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya and represented an important turning point in the fight against clandestine immigration.
In a speech to the Senate on 25 May 2009, the Minister stated that between 6 and 10 May 2009, more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. After having explained that the operations had been carried out in application of the principle of cooperation between States, the Minister stated that the pushback policy was very effective in combating illegal immigration. According to the Minister of the Interior, that policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of irregular migrants along the Italian coast, which had decreased fivefold in May 2009 as compared with May 2008.
During 2009 Italy conducted nine operations on the high seas to intercept irregular migrants, in conformity with the bilateral agreements concluded with Libya.
According to the information submitted to the Court by the applicants' representatives, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 respectively on the list appended to this judgment), died in unknown circumstances after the events in question. […]
Fourteen of the applicants […] were granted refugees status by the office of the UNHCR in Tripoli between June and October 2009. […]
The Court noted the disturbing conclusions of numerous organisations regarding the treatment of clandestine immigrants in Libya. No distinction was made between irregular migrants and asylum-seekers, who were systematically arrested and detained in conditions which observers had described as inhuman, reporting cases of torture. […] Since the situation in Libya was well-known and easy to verify at the material time, the Italian authorities had or should have known, when removing the Applicants, that they would be exposed to treatment in breach of the Convention. Moreover, the fact that the Applicants had failed to expressly request asylum did not exempt Italy from fulfilling its obligations. The Court noted the obligations of States arising out of international refugee law, including the "principle of non-refoulment". Furthermore, the Court considered that the shared situation of the Applicants and many other clandestine migrants in Libya did not make the alleged risk any less individual and concluded that by transferring the Applicants to Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by the Convention. The Court also concluded that when the Applicants were transferred to Libya, the Italian authorities had or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their respective countries of origin.
Judgement of the Grand Chamber of the European Court of Human Rights on the case of Hirsi Jamaa and Others v. Italy (Application No. 27765/09), 23 February 2012
Note: The Treaty on Friendship, Partnership and Cooperation between Italy and Libya indeed recalled critical principles enshrined in international customary law and the United Nations Charter, including respect for human rights.
The role of humanitarianism
"…[H]umanitarian logics are not incompatible with-and are often instrumental to-restrictive migration policies and migration management practices, which exclude people from territories and/or rights (often resulting in violent or even unlawful and inhuman outcomes). (…)
On the one hand, humanitarianism ends up enhancing and legitimizing policies and practices aimed at preventing migrants from embarking for Europe, thus excluding them from rights they would enjoy there. On the other hand, humanitarianism can enhance search and rescue operations and prompt relocation mechanisms, thus allowing migrants to reach European soil. (…)
Importantly, both the exclusionary and the inclusionary effects of the humanitarian border are largely supported by the process of delocalization of migration and border management. "Delocalization" refers to the process whereby border enforcement gradually detached from the official demarcation line of state borders. The relevant activities increasingly take place inside the territories of countries of transit or origin and in international waters, resulting in externalization and extraterritorialization, as well as inside the territories of destination countries, resulting in internalization. (…) humanitarianization and delocalization are in a relationship of mutual support and influence.
In 2003, the cooperation agreement signed by the Italian government with Gadhafi's Libya was heavily criticized, both internally and internationally, because of the well-founded fear that increased cooperation with the Libyan regime would result in increasing violations of migrants' human rights by authorities and smugglers alike. However, the agreement was publicly justified with the "strong determination to jointly tackle criminal organizations devoted to the smuggling of human beings and the merciless exploitation of clandestine migrants" (…). More recently, after an estimated 700 people died in the shipwreck of 18 April 2015, the Italian prime minister said migrant smuggling amounts to "the slavery of the 21st century" and labelled the smugglers as "the new slave traders".
[T]he conventional view that states are morally entitled to exercise discretionary control over immigration (is) wrong.
Carens, Joseph, The Ethics of Immigration
Human rights-based approach to migration
A human rights-based approach to migration places the migrant at the center of migration policies and governance and pays particular attention to the situation of marginalized and disadvantaged groups of migrants. Such an approach will also ensure that migrants are included in relevant national action plans and strategies, such as plans on the provision of public housing or national strategies to combat racism and xenophobia. (…)
[A]lthough countries have a sovereign right to determine conditions of entry and stay in their territories, they also have an obligation to respect, protect and fulfil the human rights of all individuals under their jurisdiction.
United Nations Office of the High Commissioner for Human Rights, Migration and Human Rights
Based on the information provided in Boxes 8, 9 and 10-13 above, the following questions may be addressed with students:
- Do you believe that preventing the entry of irregular migrants detected on the high seas by implementing a 'push-back policy' has a deterrent effect on migrant smuggling? Please explain.
- In your opinion, is humanitarianism more consistent with an inclusionary or exclusionary approach to borders? Please explain.
- Do you agree with Joseph Carens' statement (Box 12), which argues that States are not morally entitled to discretion in closing their respective borders? If yes, why?
- Do you believe that States are legally entitled to exercise discretion to close their respective borders? Please explain.
- How would you integrate the human rights approach in the debate (Box 15)?
Some of the questions will likely be answered intuitively.
Exercise 2: Charges brought against volunteers in Greece
According to Greek law, anyone facilitating the illegal entry, transit or stay of a foreigner in the country without said foreigner meeting the legal requirements, is liable to prosecution for migrant smuggling ( Law 3386/2005 on the Entry, Residence and Social Integration of Third-Country Nationals on Greek Territory). Volunteers who helped migrants reach Greece thus appeared to have fulfilled the elements of the criminal conduct. In some periods in 2015, 10,000 migrants arrived every day in Lesbos, an island with approximately 85,000 residents at the time of the events reported in the text. In view of the dramatic situation experienced on the island, hundreds of volunteers from all around the world gathered in Lesbos. However, there were claims that volunteers acted, sometimes, without cooperating or coordinating with local authorities and dismissed the concerns, expectations and efforts of local communities (see, for example, UNHCR, REFDAILY, Refugees in Lesbos: are there too many NGOs on the Island?, 6 January 2016) .
Against this background and considering Al Jazeera's excerpt above, students should debate the following aspects:
- The purpose of the Greek authorities in arresting and criminally charging the volunteers. Specifically, students should consider whether the response of authorities appeared proportionate. In this sense, it is likely useful to assess whether the gravity of the behaviour, considering the circumstances detailed in the news article from Al Jazeera, justified such a severe response. Another approach could be to discuss the statement of the volunteer of Team Humanity to Al Jazeera, who implied that the criminal procedures were instituted with the purpose of "scaring" other volunteers.
- Potential solutions or mechanisms to enhance coordination between volunteers and national authorities. The advantages of ensuring coordination and cooperation with national authorities should be emphasized, preferably with students being able to understand and acknowledge them and come up with examples themselves.
- Examination of the conduct of volunteers on the one hand and Greek authorities on the other, in the contexts of humanitarianism, human rights and security. The lecturer could divide the students into two sub-groups, assigning to one the task of defending and to the other the task of rejecting the prosecution of the volunteers as depicted in the excerpt.
Next: Additional Exercises