July 17, 2013
Europe, and the international community as a whole, should ensure accountability for lives lost in the past
Judith Sunderland, Western Europe researcher

Fewer migrants may be dying at sea, but they still face arbitrary treatment onshore.

On 9 July, the Maltese authorities decided to put about 45 Somali men on a plane to Libya, where migrants are often arbitrarily arrested, ill-treated and exploited. The men had arrived by boat in Malta early that morning together with women and children, after a long and dangerous journey across Africa and then the Mediterranean.

They hoped to find refuge in Europe from their conflict-ridden country. Instead, they were detained, denied any chance to apply for asylum, and threatened with immediate return. Neither the United Nations High Commissioner for Refugees (UNHCR) nor non-governmental groups that work with refugees were allowed to see the men or give them information or assistance. The women and children are being detained separately; they were not going to be deported.

In an emergency action, the European Court of Human Rights stopped the return, issuing an injunction until it could study the case filed by non-governmental groups on behalf of the Somali men.

The drama these men are living is a reminder of the hardships that migrants and asylum-seekers experience trying to reach better lives and safe haven in an increasingly hostile Europe. They encounter automatic detention in Malta, summary returns from Italy to Greece if they stow away on ferries, a dysfunctional asylum system and police abuses in Greece, and the European Union's refusal to revisit European rules requiring countries on the external borders to shoulder an unfair burden, to list just a few.
 
It should serve also as a reminder of Europe's obligations when it comes to interception and rescue at sea.

Cecilia Malmström, the European commissioner for home affairs, rightly issued a strong statement against Malta's threat to send the Somalis back to Libya. In February 2012, the European Court of Human Rights condemned Italy for its pushbacks to Libya in 2009 of boat migrants in the landmark Hirsi and Others vs. Italy case. Though Libya's government has changed, conditions for migrants and asylum-seekers remain deplorable.
 
Malmström's office has said it is examining pushback practices by member states – and not just to Libya – but it needs to be more open about this process and its conclusions. And it should be willing to use infringement proceedings against EU countries that send people to places where there is a risk of torture or persecution, a clear breach of EU law.

The European Parliament and European Council are studying a European Commission proposal for new regulations governing interceptions in the Mediterranean. It would allow for returns to third countries for those intercepted on the high seas following a cursory assessment of protection needs and the situation in the country of return. This is unacceptable.

EU member states and institutions are bound to respect the right to seek asylum and the right to an effective remedy against potential or actual human-rights violations. That includes Frontex, the EU external border agency, which co-ordinates patrols in the Mediterranean. And it applies in international waters when any EU member state or institution has control or custody over people's fate.

Arrivals by sea are up this year compared with 2012 – 8,500 have reached Italy and Malta since January, compared with 4,500 in the same period last year. Deaths this crossing season are thankfully down. The UNHCR recorded 40 deaths in the Mediterranean in the first six months of this year, compared with almost 500 in 2012 – but even one is too many.

Better co-ordination between Italy and Malta on rescue operations has helped. And Pope Francis's recent visit to Lampedusa, the Italian island off the Sicilian coast where most boat migrants from North Africa arrive or are taken following a rescue, drew worldwide attention to the horrible tragedy of migrant deaths at sea.

Europe, and the international community as a whole, should ensure accountability for lives lost in the past. In mid-June, lawsuits were filed in France and Spain in the ‘left-to-die' case of a boat carrying 72 migrants left to drift in the Mediterranean in April 2011. The area was heavily monitored at that time by NATO ships enforcing the arms embargo against the regime of Muammar Qaddafi in Libya. Only nine people survived. Although survivors provide consistent accounts of encounters with a military helicopter and two military ships, NATO and all participating member states have denied any responsibility.

Speaking to Gabriele del Grande, an Italian writer who created the blog Fortress Europe to track deaths at EU borders, has convinced me that we need to think of those embarking on these journeys differently. We should stop viewing them as victims of politics, their economic circumstances or indifferent EU policies, and instead see them as brave women, men and – incredibly – children, who risk everything in a gamble for safety and the well-being of their families. Basic humanity, as well as international and its own law, requires the EU to do more to ensure their rights are respected and the migrants' courage recognised.

Judith Sunderland is senior Western Europe researcher at Human Rights Watch.