Case Watch: Italian “Push-Backs” of Migrant Boats Under Scrutiny

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

The human rights and anti-migrant sides of the European Union's immigration debate went head to head on Wednesday, June 22, at a hearing before the European Court of Human Rights (ECHR) in Strasbourg, in a controversial case over "push-backs," or interceptions, of migrants in the Mediterranean, Hirsi v. Italy.

Italy, defending itself against complaints that it had violated human rights protections by returning migrants to Libya, positioned itself as the martyr of EU policy, stemming the tide of migrants on behalf of the continent.

Its lawyers sought to avoid the broader human rights concerns, however, focusing on the actions of Italian authorities in the specific incident in which the applicants, a group of Somalis and Eritreans, had been intercepted at sea along with some 200 other would-be migrants on three boats and transported back to Libya.

Italy argued its actions were acceptable based on a reasonable belief that Libya complied with human rights standards and assurances made by Libya in a bilateral agreement. Its only evidence, however, seemed to be Libya’s having signed international human rights instruments and the presence of the International Organization for Migration in Libya and an office in Tripoli of the UN High Commissioner for Refugees (UNHCR).

The migrant applicants and the UNHCR, intervening as a third party, quickly pointed out that the opposite was true. The reality at the time in Libya included well-documented deplorable conditions of detention for migrants, frequent violence against them, no rights even for those granted refugee status, and a very real risk of return to the country a migrant had originally fled, regardless of risk of ill-treatment. In fact, Libya did not, and does not, even have a domestic asylum procedure.

The applicants asked the ECHR for essential guidance on acceptable treatment for all migrants, which would transcend the treatment of the individual claimants.

Still, the treatment of the migrants was important in showing the need for the Court’s guidance. The Italian authorities did not inform them of their right to seek asylum. Not only did the Italian authorities confiscate their mobile phones – their only way to seek help or legal representation – but the Italian authorities also confiscated some actual certificates of refugee status issued by the UNHCR before turning the migrants over to Libya – all while telling them they were being escorted to Italy.

When the migrants realized they were about to be unloaded in Libya, many did claim asylum. Some refused to leave their boats and were forcibly removed, while others showed their torture scars in an effort to beg mercy from the Italian authorities. At the hearing, Italy’s lawyers disregarded all this and argued that the migrants’ rights to international protection were not violated, because they had not properly asked for them. The UNHCR disagreed; Italy had violated the principle that countries should not return migrants to a place where they would be persecuted  (non-refoulement) and the migrants’ human rights.

Beyond the apparently compelling facts, there is no sure way to know how the ECHR will decide the law of the case. A few technical points of law may be significant. Italy insinuated that not all of the applicants had properly authorized their lawyers to act on their behalf, and also argued that the ECHR should not even consider the case, because the applicants should have first taken the case to the domestic courts in Italy.

The case also involves questions about the application of European human rights norms outside the physical territory of European states. The principle of non-refoulement – the prohibition of a state returning someone to a country where his or her life or freedom would be threatened – does apply beyond territorial borders, at least according to the ECHR, the Council of the European Union, and the UN Committee Against Torture.

The question remains whether a separate prohibition of collective expulsion of a group of migrants without assessing - on an individual basis - whether they qualify for asylum  would also apply when a country is acting outside its own territory, as Italy was in this case.

It remains to be seen what position the ECHR will accept, but the February 2011 ECHR case of MSS v. Greece and Belgium made clear that returning a migrant to inhuman and degrading conditions with no functioning system for legal aid and no viable asylum system consisted violated the migrant’s rights. The sending state always has the responsibility to verify the conditions, treatment and legal safeguards in a country to which a migrant is transferred, and provide a means for the migrant to contest the transfer.

The MSS ruling found the state responsible even though EU law stipulated that the state should return the migrant to its point of entry into the EU. Italy may not, therefore, be able to hide behind its bilateral treaty with Libya, which it has recently renewed with the National Transitional Council in Libya. The agreement provides that Italy will provide “equipment and facilities” while Libya, under the NTC, will take over the job of intercepting migrant boats leaving its coast.  Simply paying Libya to patrol the Mediterranean and intercept migrants, rather than doing it itself, should not absolve Italy of its responsibilities under refugee and human rights law.

Hirsi may expand and clarify the application of human rights law where a migrant is in control of a state, even if not in that state’s territory, and how that control might be defined. If so, that would have a significant impact on the way migration is handled in Europe; the Open Society Justice Initiative will post a follow-up Case Watch report when the decision is released.