Deaths of migrants at sea: the real blame lies with the policies created by European states

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On June 15, the overcrowded fishing trawler Adriana sank on its illicit voyage from Libya to Italy, drowning hundreds of men, women and children. In response, the states expressed their shock and sadness and decided to prosecute the smugglers associated with the trip.

Greece, under whose control the tragedy occurred, declared three days of mourning and arrested nine of the survivors, accusing them of human trafficking. In Pakistan, where hundreds of victims originated, 10 suspected traffickers were arrested.

Some survivor accounts have shone the spotlight on the actions of the Greek Coast Guard. At one point, her officers attached a rope to the Adriana, possibly with the intention of towing her, and possibly contributing to her capsizing.

I am a researcher specializing in the development of international law and legal institutions in the practice of transitional justice. My opinion is that the focus on smugglers, or even the action and inaction of the Greek Coast Guard, diverts attention from the real cause of migrant deaths in the Mediterranean: the deliberate policies put in place by European states and supported by the European Union.

Reduced legal protections for migrants

In the wake of the massive population flows accompanying the Second World War, European states enacted the 1951 Refugee Convention. This document obliges signatory states to recognize and protect refugees and to grant them social rights on the same basis as citizens. As enacted, this law is quite protective, serving as a legal shield for vulnerable people.

The shield still had holes. For example, not all migrants are considered refugees, who face a well-founded fear of persecution. This category focuses on political rather than social harm; starvation and economic tragedy are generally not eligible.

New holes appear. One of the foundations of the 1951 Convention is the State’s obligation not to return or push back refugees in danger. Long considered fundamental, this obligation is no longer unassailable. In recent years, a pattern of pushbacks has emerged. The Greek coast guard and European border agency Frontex were caught putting migrants at sea. In May 2022, Frontex’s director resigned after a report showed Frontex was involved in hundreds of illegal pushbacks.

These actions must be understood as symptomatic of the illegality of the state. States have deliberately adopted policies that make refugee movements deadly. For example, states have closed legal land and air routes through visa programs and stiff penalties for airlines carrying passengers with incorrect documents. This pushes migrants towards dangerous passages.

Individual court cases often recognize the illegality of the state, years after the fact. In December 2022, a court in Rome found the Italian coastguard and navy guilty of manslaughter and negligence in the 2013 deaths of 268 people in a shipwreck off Lampedusa. The two individual defendants were acquitted, however, as the actions against them were time-barred.

Similarly, a 2012 judgment by the European Court of Human Rights found Italy responsible for human rights violations against migrants committed by the Libyan Coast Guard. A 2018 filing in that same court alleges ongoing murderous treatment by Italy and Libya. Judgment is still awaited.

Activists have called on the International Criminal Court and the Court of Justice of the European Union to review Europe’s treatment of migrants. Yet even if these powerful courts take up these cases, there is little they can do. As long as each case is treated as a potentially prosecutable individual incident rather than part of an illegal overarching horror, preventable loss of life will continue.

The Mediterranean is now considered the deadliest place in the world for migrants. Since 2014, States have ceased rescue operations in the Mediterranean. States now provide border protection instead. States have also shut down private rescue operations, seizing boats on false charges and criminally prosecuting NGO workers as human traffickers. As the NGO Médecins Sans Frontières points out,

Not only has Europe failed to provide search and rescue capability, but it has also actively sabotaged other attempts to save lives.

Weakening of the rule of law

The 1951 Refugee Convention was just one of a series of European rule of law projects designed to recognize and protect human rights after the ravages of World War II. As I describe in my recent book on international law in Africa, these legal projects have taken seriously the threat that states pose to individuals, both within and outside their borders, and have sought to address this danger by binding states to supranational laws.

This structure of rule of law above the state through an international rule of law system is the model advocated for African states emerging from colonialism and for all developing states engaged in global politics and trade.

But European states are giving up key elements of this rule of law structure through the illegality of their policies towards migrants. The rejection by European states of their legal responsibilities challenges the standards of the rule of law in the international system. This in turn weakens this system as a model for states seeking to normalize the rule of law internally.

Kerstin Bree Carlson, Associate Professor of International Law, Roskilde University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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