Cathedral Round-Up #25: Yale Law and the Expansion of “Persecution”

Way back in Round-Up #7, I noticed the Cathedral was trying to expand the notion of “refugee” to include “economic migrants.” In today’s Round-Up, courtesy of the Yale Law Journal, Paul Strauch would like to expand “persecution” to include “might get killed by common criminals.”

Strauch’s first paragraph (from When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union’s Operation To Combat Smuggling in Libya’s Territorial Sea) is a doozy:

Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the over 5,000 migrants and refugees who died attempting to cross the Mediterranean in 2016 alone.2 Of the European Union’s (EU) responses to this humanitarian crisis, perhaps the most controversial has been Operation Sophia: a naval mission to combat human smugglers and traffickers operating in the Mediterranean, in particular off the coast of Libya.3 As part of Operation Sophia, the EU is now supporting and training the Libyan Navy and Coastguard to combat smuggling and stop migrant departures within Libya’s territorial sea—waters within twelve nautical miles of Libya’s nautical baseline. The EU simultaneously continues to seek permission for European Union Naval Force Mediterranean (EUNAVFOR MED) vessels and personnel themselves to enter Libya’s territorial sea to seize and dispose of smuggling vessels. (These two components will hereinafter together be referred to as the Operation Sophia “territorial sea component.”)

Source: Human Costs of Border Control

Okay. Let’s unpack this. First, a little background on Yale Law: for those of you who don’t know, it is regarded as the most prestigious law school in the US. Paul Strauch might be an unknown American law student who doesn’t even have his own Wikipedia page (yet,) but he still has the power to influence the development and implementation of European Human Rights law. According to his profile on Linked In, Strauch has only had one real job–he worked as an “Investment Banking Compliance Analyst” for Goldman Sachs for a year. The rest of his “work experience” is three-month internships.

Getting an accurate estimate of the full scale of migrant deaths in the Mediterranean is tricky because dead bodies often end up at the bottom of the sea where they are hard to find, thousands of miles away from any loved ones. A well-publicized sinking can prompt European governments to dredge the sea floor in search of bodies, while a boat that just disappears in the middle of the night and is never heard from again may never get noticed.

Nevertheless, migrant deaths do look like they’ve gone up overall. HCOBC cites over 450 deaths in 2013, and the UNHCR reports over 3,750 in 2014 and estimates more than that for 2016. The numbers for 2017 aren’t out yet, but look similar.

This is a bad idea

Why are so many people suddenly drowning in the Mediterranean?

The Libyan civil war which began in 2011 turned a relatively stable country with functioning borders into an anarchic free-for-all infested with sociopathic smugglers happy to let you risk death in a rubber raft in the Mediterranean in exchange for all your money.

A quick glance at a map of the Mediterranean reveals that Libya-Italy route is about the worst one you could possibly pick. Morocco to Spain/Gibralter? Only 9 miles! There are totally legal ferry companies that will take you from Tunisia to Sicily in about 10 hours. You can cross from Turkey to continental Europe via the Bosporus, (yes I know the other side of the Bosporus is also Turkey,) or if you want to take the long route, you can island-hop through the Aegean. The minimum distance from Libya to Italy (to the island of Lampedusa) is a much further–290 miles.

But the smugglers aren’t actually trying to get to Italy. As the Irish Times reports,

“It is well-known that the Italian boats save everybody,” [a smuggler] said. Smugglers and migrants said that a rescue by a European vessel in international waters – not reaching the Italian coast – was the goal of every departure. …

But the Libyan coast guard is practically useless. Coast guard officials responsible for most of the coastline where the smuggling occurs say equipment failures have prevented them from carrying out an operation for more than three months, and at least one captain said he was afraid of retribution by the smugglers. …

An Egyptian or Tunisian captain for the boat might get $5,000-$7,000, and blend in with the migrants to avoid responsibility if the boat is stopped, according to the smugglers. About $800 buys a satellite telephone the captain can use to call the Red Cross when the boat reaches international waters, to expedite pick-up by the Italian coast guard.

source

The vast majority of migrants coming via Libya are not Syrians refugees fleeing ISIS (who of course take the eastern Mediterranean/Bosporus routes,) but regular Sub-Saharan Africans who have traveled through Libya’s non-existent borders in search of a quick route to European prosperity.

Well, deaths are sad, but people die every day, especially if they do things that are likely to kill themselves, like try to cross the Mediterranean in a rubber raft. What makes a death in Libyan waters (or the open sea) Italy’s problem–or more generally, Europe’s?

Operation Sophia’s ostensible goal of helping the Libyan coast guard reassert control over Libyan waters is the fastest and most sensible way of stemming the tide and saving the lives of everyone involved. But Strauch takes issue with this:

The EU’s goal of decreasing the number of migrants4 who reach the Mediterranean high seas is understandable, but the territorial sea component presents serious human rights concerns. Instead of traversing the high seas to possibly reach Europe and asylum, migrants will be turned back by the Libyan Coastguard—trained and supported by EUNAVFOR MED—to a country where they likely face prolonged detention, brutality, and persecution. There is also the possibility that migrants and refugees will be caught in the crossfire between the human smugglers and the Libyan Coastguard in collaboration with EUNAVFOR MED. This Comment considers whether the EU’s activities in the territorial sea of Libya will occur within the framework of international human rights law, or whether there are gaps in protection for migrants impacted by the Operation.

These migrants are not in danger in Libya because some faction in the Libyan civil war has it out for them. They’re not even Libyans fleeing violence in Libya. They are opportunistically taking advantage of Libya’s lawlessness in order to cross it, and Strauch is arguing that because of that same lawlessness, it would be a violation of Human Rights Law to send them back.

<–Here’s a map of homicide rates by state (the UNODC report doesn’t include recent violence in Libya.) By this logic, pretty much any of the billions of people from Russia to Brazil should have the right to waltz into the blue-zone country of their choice.

Of course, the actual result of Operation Sophia has not been the return of smuggling vessels to Libya (that phase of the operation is not yet and may never be live.) According to the New York Times, Efforts to Rescue Migrants Caused Deadly, Unexpected Consequences:

Strategies to rescue migrants in the Mediterranean Sea and disrupt smuggling networks have had deadly, unexpected consequences, according to aid groups monitoring the crisis.

It is part of a wrenching Catch-22: Any effort to lessen the migrant crisis can backfire as smuggling networks devise even more dangerous strategies in response. …

Each year, aid groups patrol the area and rescue thousands of migrants at risk of drowning.

Before 2014, rescues took place closer to Italy, with migrant boats traveling as far as Italian waters. By 2014, many rescues were occurring farther south in the Mediterranean. By 2015, rescues reached even closer to the Libyan side of the Mediterranean Sea.

More recently, rescues were taking place closer to Libyan territorial waters…

Smugglers use flimsy boats and provide just enough fuel to reach the edge of Libyan waters. Drivers can remove the engine and head back to Libya on another boat, leaving the migrants adrift until help arrives.

The NY Times fatalistically concludes:

“It’s really time to start looking at some of the long-term policies,” [Federico Soda, the director of the Coordination Office for the Mediterranean with the International Organization for Migration,] added. “Africa and Europe are always going to be neighbors. Movement of people between the two is just a reality of the coming decade.”

Libya’s porous borders are just a reality, like average rainfall in the Sahara or the height of Mount Everest, not something humans actually have control over, so you’d better just get used to it.

Peter “Sweden” Imanuelson has an interesting account of his recent trip to Sicily:

So I went down to Sicily, the front line where many immigrants first set foot in Europe to find out the truth about the so-called refugee crisis. …

What I found in Sicily was an organized and large-scale operation. These are so-called non-governmental organizations (NGOs) such as Oxfam, Save the Children, MSF, and others who work with governments from different EU countries to bring in a new population in Europe.

In Catania I met an immigrant named Mohari who arrived just a few days earlier. His journey began in Eritrea, from where he traveled all the way up to the coast of Libya. After six failed attempts, this Eritrean was finally picked up by a boat from Save the Children, only a few kilometers from Libya’s coast. …

Mohari told me he wanted to either Sweden or England. I asked him why he just selected these countries.

– Money, solved his short answer.

There are a number of different ships operating in the Mediterranean to help immigrants. Partly, we have ships from NGOs, but we also have coastguards from different EU countries, including Sweden.

In Catania I met the crew of Triton, a Swedish coastguard vessel operating in the Mediterranean at the request of the EU. The ship is formally there as a Coast Guard, but I found out that they also collaborate with NGO vessels to pick up immigrants on Libya’s coast and transport them to Europe.

It is thought that the Swedish Coast Guard should guard the coasts of Sweden – not pick up Africans in the Mediterranean. After all, it is Swedish tax money that accounts for the cost. However, the Swedes are commissioned by the EU Coast Guard Frontex along with the Coast Guard from other EU countries.

So what happens when NGOs ship arrives in Europe filled with immigrants? I arrived at Pozzallo, a nice city in southern Sicily. There, the Aquarius, operated by a Physician without Frontiers, would arrive early in the morning after picking up about 420 immigrants on the Libyan coast.

I was there in good time when the ship arrived. Everything was in full swing to prepare for Europe’s new citizens. The Red Cross, the police, the Italian Ministry of Internal Affairs and several were in place. The ship arrived with what seemed to be almost exclusively young African men. No women or children were able to see on board.

Suddenly, the Italian police arrived at me, asked to see my ID actions and rejected me from the port.

Let me pause here for the irony as the person who is actually legally allowed to be in a Sicilian port is kicked out by the police and people who have entered the country illegally are not.

My trip continued and I wanted to find out where the immigrants are heading after they come to Europe. At the harbor there were buses lined up, ready to take the immigrants on. Many end up in refugee camps. One of these is Cara Mineo. What amazed me was how incredibly good the refugee camp is compared with how the native population lives. Newly built houses, playgrounds, football pitches, basketball courts and more.

A local resident told immigrants to get everything they needed. Mobile phones, cigarettes. They also get free healthcare, free legal assistance and so on… Cara Mineo is a former military base and the military is still there and watches. I was not rejected this time, but was strongly limited in what pictures I could take on the camp.

However, there is even more help to get if you are an immigrant from the third world. Near the train station in Catania, the organization Oxfam had its pop-up tent and helped immigrants. There they are interpretered and tell the immigrants what they need to do to seek asylum and get up to northern Europe. They even go so far as to share leaflets titled #OPENEUROPE Guide To Rights. There you will find a lot of useful information, like which trains you can take north and what the prices are. You also get to know which rights you have (such as access to the phone and the internet). Of course, there are links to web pages that show you how to stay in Europe.

Oxfam’s assistant described how they simply help the immigrants with all the information they need. They also share backpacks with necessities, such as toothbrushes, shoes, towels, paper and pens. She told them that they then ask immigrants to rate the service they received from Oxfam on the organization’s app.

You know, back during the big drought, several of my relatives ended up with no running water because their well dried up. After hearing that a deeper well could reach the water, I started contacting well-digging charities in search of help, but kept getting the same answer: they only drill in Africa. These folks would rather fly to Ethiopia to drill wells than drive a hundred miles up the road to help their neighbors.

Most people who want to “help” others don’t really want to help; they just want the feel-good-fuzzies they get from helping. You don’t have to hand out backpacks and toothbrushes to economic tourists illegally entering your country. You can hand out backpacks and toothbrushes to homeless people and foster children in your own city.

Strauch goes on (this paragraph is so egregious that I’m going to treat it like a Wikipedian):

In recent years, observers and scholars [who?] have rightly [judgmental language] called attention to European states’ heightened implementation of border security protocols and restrictions on asylum access in response to the global migration crisis. [Proof?] The term “Fortress Europe” is now commonplace [where?].6 [The linked source does not prove that the phrase is common.] Over the past twenty years, European states have developed this practice [what practice?] by striking deals with African nations to support maritime interdictions in their territorial seas.7 As a military operation designed to limit the number of migrants in reach of Europe’s borders, Operation Sophia expressly follows in this trend. [What trend? No trend has been demonstrated.]

Just look at that horrible trend of migrants being kept out of Europe

Notice how Strauch just asserts a bunch of stuff without offering any proof for any of it. Over in reality land, a Record 1.3 Million Migrants reached Europe in 2015; this number dropped negligibly to 1.2 million in 2016. Trends here probably have more to do with German Chancellor Angela Merkel having announced an extremely open policy toward migrants and refugees crossing into Germany in 2015 than Italian-Libyan coast guard cooperation.

Strauch never does provide data to back up his claims. Rather he argues:

The Operation Sophia territorial sea component risks violating fundamental international human rights protected by various international conventions.32 These include, in particular, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the 1951 Refugee Convention.33 The states of the European Union are parties to all of these instruments and thus bound under international law by the obligations provided therein.34

The Operation Sophia territorial sea component is at odds with the principle of nonrefoulement, which holds that an individual may not be returned to a place where he or she faces risk of persecution.35 The nonrefoulement principle is affirmed most clearly in Article 33 of the Refugee Convention and is also binding upon European states under the ECHR.36 … Additionally, the duty of nonrefoulement now arguably is customary international law,38 and the overwhelming weight of international authority holds that states are prohibited from engaging in nonrefoulement practices when acting extraterritorially.39

Libya remains a place of possible persecution for the irregular migrants who seek to leave it. In Libya, migrants face possible torture, arbitrary detention, and other abuses.40 Because Operation Sophia engagements seek to ensure that migrant vessels cannot leave Libya’s coast, interception and diversion of vessels containing migrants and refugees imply that they may be forced to return to Libya.41 In addition, the program of disposing of vessels used for smuggling may present nonrefoulement concerns, as these actions effectively ensure migrants seeking transportation cannot leave Libya. For similar reasons, territorial sea engagements may run up against the prohibition against collective expulsion. Affirmed in Article 4 of the Protocol 4 of the ECHR, collective expulsion is “any measure . . . compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.”42

Strauch makes me think Duerte is on to something.

The article keeps going in this manner. Basically it’s Europe’s fault that anyone, anywhere in the world might be subject to violence and so Europe must take in anyone and everyone who shows up on its shores or even just a few miles off Libya’s coast. I recommend that you read the whole thing, just to get the full and thorough picture, but I will leave you with this final line:

Part III then contends that the territorial sea component makes significant and concerning contributions to an emerging norm of militarized, cooperation-based border control.

Strauch is concerned about cooperation? One wonders what kind of non-militarized border control Strauch imagines exists anywhere in the world.

 

Amazingly, I didn’t have to go digging to find this article–it was just the first article I encountered in this month’s issue of Yale Law Journal. I haven’t even touched the Journal’s other two articles, The Nature of Parenthood:

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. … In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.

and Disparate Statistics, about the use of statistical evidence in evaluating claims of disparate impact.

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9 thoughts on “Cathedral Round-Up #25: Yale Law and the Expansion of “Persecution”

  1. Of course, following this logic, any resident of a country with a higher crime rate has an absolute right to go to any country with a lower crime rate, even if the country he is leaving isn’t all that high. So, I’m going to go float off the coast of California in a rubber raft, and wait for the Japanese Coast Guard to come pick me up. If they don’t, they are violating my human rights.

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  2. “Well, deaths are sad, but people die every day, especially if they do things that are likely to kill themselves, like try to cross the Mediterranean in a rubber raft.”

    Especially when they also intentionally hole their own boats when a ship shows up on the horizon, so that said ship will be ‘forced’ to rescue them. Double points if their pilot/smuggler specifically calls some organization which he knows has ships in the water nearby beforehand.

    The proper policy decision (completely compatible with Catholic and most other sensible humanitarian ethics to boot) is to let all these people drown. For the ones who actually do make it to shore, intern them and send them back whether North Africa wants them or no, whether North Africa helps in the effort or no, and then ruthlessly prosecute and punish anyone and everyone even tangentially related to this trade, from the smugglers to the administrators of the NGOs to the feel-goodz (white) people who show up to ‘help’ in the refugee camps.

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