Apr 25 2016

Transborder Abduction of Hong Kong Booksellers: Implications under International Law

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By Sean Yau Shun Ming*

In late 2015, five co-owners of a Hong Kong bookstore – specialising in selling Chinese political books mostly banned in China – all disappeared. Among them, the international community has paid considerable attention to Gui Minhai, a Swedish national who went missing in Pattaya, Thailand last October, and Lee Bo, a British national who disappeared from Hong Kong last December. Later on, Gui ‘confessed’ on state-run CCTV that he had fled because he had been involved in a fatal drunk-driving car accident more than a decade ago and that he was returning to China voluntarily. Rumour has it that the detention of the five booksellers is to prevent the publication of a particularly provocative book, Xi Jinping and His Lovers, together with other politically-sensitive books criticising the senior Chinese leadership.

The five missing booksellers are being detained in mainland China. Photograph: Ringo Chiu/ZUMA Press/Corbis

The five missing booksellers are being detained in mainland China. Photograph: Ringo Chiu/ZUMA Press/Corbis

 

To get the obvious issue out of the way: the suspected abduction of Gui and Lee by Chinese authorities would seemingly constitute enforced disappearance. The media and human rights groups dealt very carefully with these two cases due to the lack of evidence. However, the fact that four Chinese men reportedly entered Gui’s flat in Thailand and that Lee disappeared from the bookstore’s warehouse and miraculously entered China with his travel document still at home, should logically point to a clear case of abduction.

Against this background, this incident – while unprecedented in Hong Kong – simply falls in line with the Chinese practice of suppressing freedom of expression. In 2014, the US State Department documented the Chinese censorship of books containing politically-sensitive content, as well as the use of televised confessions by public security authorities in order to establish guilt before trial proceedings. A telling example is the case of Gao Yu, a veteran Chinese journalist, who was forced to confess on state television in May 2014 in order to avoid her son being targeted and punished.

In the present case, the booksellers were abducted following a 2013 Chinese government directive, “Sweeping the Source”, which explicitly targets the Hong Kong publishing industry to stop “counter-revolutionary” publishing activities. The aftermath of televised confession of Gui seemingly made under duress, as well as the unconvincing hand letters by Lee, demonstrated the decentralisation and thoughtlessness of Chinese law enforcement. Meanwhile, the incident entails significant ramifications under international law as well as in Hong Kong.

First, the fact that Gui was forcibly removed – by whatever means – from Thai to Chinese jurisdiction deserves examination under the international law of enforced disappearance, which is defined in Article 2 of International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED) as:

… arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

If the Thai Government had given consent, Gui’s case might have been one of extraordinary rendition for its lack of judicial permission. This is not without precedent: Jiang Yefei and Dong Guangping, Chinese dissidents and recognised refugees by UNHCR, were deported from Thailand to China in November 2015. Previously, the Thai authorities had also forcibly returned some 100 ethnic Uighurs of Chinese citizenship to China where they were at risk of torture.

Likewise, Gui’s case might point to Thailand’s violation of the non-refoulement principle, which prohibits transferring people to jurisdictions where they would be at real risk of human rights violations or abuses. The adoption of a rights-based perspective also reveals a substantial breach of the booksellers’ human rights, particularly the deprivation of their right to individual security and liberty. As further codified in Article 9 of ICCPR, anyone deprived of his or her liberty by arrest or detention shall be entitled to proceedings before a court which, without delay, will determine the lawfulness of detention.

Moreover, the incident represents a serious attack on China’s commitment to Hong Kong’s autonomy under the “one country, two systems” configuration. Under such framework, Hong Kong citizens are supposedly to be protected by the Basic Law under which Chinese law enforcement officials have no capacity to exercise any legal authority, let alone the transfer of individuals back to the mainland.

More specifically, the inherent autonomy enjoyed by the Hong Kong Special Administrative Region (HKSAR) enables itself to proactively investigate. Evidence to the contrary, however, suggests the potential participation or acquiescence of the HKSAR, especially when Lee crossed the border without his travel documents. Despite speculations over the possible assistance by the HKSAR, the present circumstance showcases the passive and intimidated attitude of the HKSAR under the current political landscape. Ostensibly, its recent pro-Beijing moves have sparked concern over whether the Hong Kong government is still capable of safeguarding the effective implementation of the ‘One Country, Two Systems principle of governance.

To date, some of the most pressing questions, such as where they are detained or on what charges they are being investigated, remain unanswered. To secure procedural justice and due process to all five booksellers, they need to be afforded the right to legal representation and access to court. The violation of these rights by China is equivalent to arbitrary detention.

Moving forward, if Chinese law enforcement officials could make cross-border arrests, China would be stepping outside the bounds of the rule of law. More precisely, the case of Lee Bo as a precedent for the Central Authorities to carry out law enforcement in Hong Kong is particularly worrisome: it not only signified increased scrutiny on the political freedom of the autonomous region, but also potentially damage its constitutional principle of ‘One Country, Two Systems’. Consequently, as former Chief Secretary Anson Chan suggested, “a high degree of autonomy” as promised to Hong Kong since 1997 is at risk.

Sean Yau Shun Ming is a LLB candidate at University of Hong Kong. He is also the Program Director of Justice Labs and a research intern at Amnesty International Hong Kong. He can be reached at seanyau@connect.hku.hk.

Posted by: Posted on by Leila Nasr

Apr 18 2016

A Conversation on Race (Part 3): ‘Race, UK Policy and the Chagos Islander’s case post-2000’

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The following article is the third and final post in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’. This series has been compiled by MSc Human Rights candidate Allie Funk (A.Funk@lse.ac.uk). 

By Cat Gough*

“The Foreign Office is not acting in good faith to get things moving in our favour. It seems they are not interested in us, maybe because we’re black skinned and African origin. If you take the Falklands, the problem was solved. If you take Montserrat, everything was solved.”[1] – Olivier Bancoult, leader of the Chagos Refugee Group, in conversation with Mark Curtis in 2002. 

“We were being asked [in the 2000 High Court ruling] to pick up the financial tab to allow, almost on an exploratory basis, for people to go back to the islands.” [2]– Bill Rammel, MP Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, BBC interview with John Pilger 2004. 

Utilising medieval legislation to overturn a High Court ruling; commissioning reams of “patently flawed” reports and studies; paying a University scientist to ‘review’ a 2002 feasibility study, ensuring much of the initial scientific conclusions were scrapped; and disregarding financial support from the US and the European Union to support British Chagossian victims. This is how a series of twenty-first century British governments have acted to remedy a British post-colonial crime against humanity, treating those subject to Foreign and Commonwealth Office policy as expendable citizens.

The Chagos Archipelago, British Territory. Licensed under Creative Commons.

The Chagos Archipelago, British Territory. Licensed under Creative Commons.

This was an illegal British foreign policy, a crime against humanity, pursued covertly by the British government. It began with the 1966 bilateral agreement, which would see Britain receiving a nuclear missile system from the United States in return for the USA’s complete access to the Chagos Islands. As a result, beginning in 1968, the British government forcibly evicted around 1500 vulnerable British citizens from their homes on the Chagos Islands in the South Pacific. This was done, as suggested by Lord Hoffman, “with a callous disregard of their [the islanders] interests.” The Chagos Islands were promptly gifted to the United States by the British government as a brand new military base for America on the island Diego Garcia. In a post 9/11 context, the United States have since described Diego Garcia as an “indispensable” military base. Now a vital platform for “policing the world,”[3] the base is used as a strategic launchpad for both the Afghanistan and Iraq invasions.

Through examining the UK government’s response to the extraordinary legal battle for basic human rights since the High Court ruling in 2000, questions arise regarding the ways in which the race of the Chagos islanders has informed the response of the government. Mark Curtis’ analysis offers some insight: that the principal victims of Britain’s foreign policies are seen by the government as Unpeople.[4] Unpeople, Curtis argues, are those whose lives are deemed worthless in the pursuit of power and commercial gain. Those subject to foreign policy are treated as either useful, or expendable, the modern equivalent “of the ‘savages’ of colonial days, who could be mown down by British guns in virtual secrecy.”[5]

The deployment of the plethora of obscure measures used by successive governments to stifle the High Court ruling in 2000 has posed serious indictments about how race has informed and continues to influence the core of UK foreign policy. This includes using the Royal Prerogative to overturn the High Court ruling, carrying out numerous costly and flawed feasibility studies, and using specious reasons to justify their continued legal opposition to resettlement. Evidence that race has deeply and negatively tempered the decisions made by the societies in which we participate, particularly the prominent arms of our democratic system, are clear in this instance.

Just three months prior to the 2000 High Court ruling in favour of the islanders’ right to return to the outlying Chagos islands, the Foreign Office made their opposition to the expected ruling clear. Foreign Office Minister, Peter Hain reminded the government that “any resettlement would present serious problems…in relation to our treaty obligations.”[6] Whilst making no mention of their obligations to the rights of the islanders, the priorities of the Foreign Office were made plain: their covert 1968 military agreement with the United States was most pressing. There was explicitly no priority given to the human rights of the forcibly exiled Chagossians.

The very fact that a key Foreign Office minister reminded the government of this priority, indicates the explicit sidelining of Chagossian human rights in favour of economic and military agreements. In a bold pursuit of diplomatic leverage, the lives of Chagossians were expendable.

Following this assertion by the Foreign Office for their preferred response to the High Court ruling, the government proceeded to overturn the High Court ruling via two Orders in Council under the Royal Prerogative. In doing so, the government utilised medieval legislation to obstruct their obligation to assist forcibly exiled Chagossians to return to their homes.[7] Using the Royal Prerogative, was ultra vires and was made without legal authority, according to a claim upheld by the Court of Appeal.

Going beyond conventional legal authority, the British government has utilised obscure royal powers to curtail the human rights of those subject to British policy; this seems reminiscent of a British colonial past, when racism was inherent within the coloniser’s legal treatment of its subjects. It suggests how the Foreign Office has evidently taken exceptional measures, bypassing democratic means, and utilising all of its powers to capture the law, in order to stifle the human rights of some of its most vulnerable “black skinned and African origin” [8] citizens.

Whilst the government will proactively seek to veto basic human rights for those it has forcibly exiled, in order to maintain good relations and military favours with foreign powers, it seems quite clear that the principal victims of Britain’s foreign policies are seen by the Foreign Office as Unpeople.[9] Further evidence of this continues to be uncovered. Foreign Office correspondence with an academic indicates that the Foreign Office paid an academic to “massage” the drafting of a key resettlement feasibility study, exposed via a Freedom of Information request. This further underpins the arguments of Mark Curtis, and exhibits a post-colonial British government taking extraordinary measures to curb and limit the basic human rights of vulnerable black British citizens, in favour of a military agreement made under legally tenuous circumstances in 1968.

Notions of race, therefore, seem to have deeply and negatively influenced the decisions made by the societies in which we participate in this instance; meanwhile the British government continues to treat forcibly exiled Chagossian islanders as expendable citizens.

* Cat Gough can be reached at catgough267@gmail.com

[1] Olivier Bancoult, interview by Mark Curtis. Web of Deceit: Britain’s Real Role in the World, (Vintage : London, 2003) p.426

[2] Bill Rammell, interview by John Pilger, “Stealing a Nation”, produced by Carlton Television, 2004.

[3] Milmo, Cahal, “Chagos Islanders tell Britain they want to resettle their former home”

[4] Curtis, Mark, Unpeople: Britain’s Secret Human Rights Abuses, (Vintage : London, 2004), p.2

[5] Ibid

[6] Curtis, Web of Deceit, p.428

[7] Ibid

[8] Olivier Bancoult, interview by Mark Curtis. Web of Deceit: Britain’s Real Role in the World, (Vintage : London, 2003) p.426

[9] Curtis, Mark, Unpeople: Britain’s Secret Human Rights Abuses, (Vintage : London, 2004), p.2

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Apr 11 2016

A Conversation on Race (Part 2): ‘Incarceration of Black Lives in America’

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The following article is the second in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’.

By Jacqueline Stein*

To a foreigner, American incarceration rates must be haunting. Figures today report American prison rates toping world charts, with over two million people in prison, far above incarceration rates in China, Russia, Brazil and India. However, looking closer into domestic incarceration statistics, the numbers quickly indicate another trend. According to research conducted by the Pew Research Center in 2010, black men in America on average were six times more likely to go to jail, state or federal prison than white men. In a country where values like freedom and equality are exported abroad through mass media and wars, in the land of the free, Americans are not so equal after all.

With Netflix dramas and documentaries such as Orange is the New Black and Making a Murderer, which have started thoughtful discourses on the failings of the criminal justice and prison systems in the United States, it is also important to consider America’s role in sustaining (and increasing) racial and class inequalities, especially on the subject of incarceration. With prison massively altering one’s life course—possibly affecting their job prospects, mental health, relationships and voting rights—this situation cannot be taken lightly. So, why is African American incarceration so disproportionately high? In the following sections, I will briefly discuss the war on drugs, education and states’ behaviors contributing to racial inequality in the United States.

Stigma and Poor Neighborhoods

In the 1970s, a new social problem emerged: America’s drug problem and the increasing deaths related to this phenomenon. American politicians responded by launching a nationwide war in attempt to halt crime and eradicate drug trade. The consequences of this proposal, however, turned out to be much more complicated than simply the drug dealer going to jail.

Simultaneously, while new policies began a war on drugs, low-skilled job opportunities also decreased in the country; consequently, with limited economic choices, more poor black men living in disadvantaged neighborhoods turned to drug dealing. Becky Pettit and Bruce Western, two professors researching incarceration and social inequalities in America, summarized, “If poor black men were attracted to illegal drug trade in response to the collapse of low-skill labor markets, the drug war raised the risks that they would be caught, convicted and incarcerated. As Sampson and Lauritsen observed, trends in drug control policy ensured that ‘by the 1990s, race, class, and drugs became intertwined.’”

With this trend, African Americans, living especially in poor neighborhoods, became re-stigmatized. Police targeted these neighborhoods though undercover assignments and street sweeps, leading more black men serving time in prison. Instead of helping these citizens gain education and job opportunities, thereby opening new experiences and equalities across the country, new anti-crime and anti-drug campaigns put these men behind bars, affecting not only themselves, but also generations ahead. In America’s fight towards reducing crimes and preventing drugs-related deaths, new crimination policies led to increased racial inequalities throughout the country.

Education and Incarceration Trends

In the last 10 years, Pettit and Western researched incarceration in America and determined several important trends. According to the scholars, “For black men in their mid-thirties at the end of the 1990s, prison records were nearly twice as common as bachelor’s degrees.” As tuition rates climb higher each year, access to higher education becomes more difficult, thus increasing inequalities and preventing many from attending university, as the burden of debt becomes heavier. Instead of making public education more affordable, American society keeps building higher barriers for people living in disadvantaged neighborhoods. Moreover, Pettit and Western note that incarceration has increasingly become a common life path for many non-college black men. As average incarceration rates for black men have risen over the past few decades, too many African American men are spending years in prison, instead of starting new jobs and spending time with their loved ones. Instead of creating opportunities to eliminate class and race inequalities, American society has failed those living in poor minority neighborhoods.

States and Incarceration Data

In February 2015, The Washington Post wrote an article on John Legend’s insightful observation about incarceration. While at the Oscars, the popular singer/songwriter/actor expressed, “We know that the Voting Rights Act that they fought for 50 years ago is being compromised right now in this country today. We know that right now, the struggle for freedom and justice is real. We live in the most incarcerated country in the world. There are more black men under correctional control today than were under slavery in 1850.” The blogger from The Washington Post, Jeff Geo, had a colleague, Max Ehrenfreund fact check this information and he found Mr. Legend’s conclusions were true. However, Ehrenfreund clarified that correctional control did not mean only behind bars, but also incorporated black men on parole or probation. Moreover, Ehrenfreund noted that today in the United States the population of African Americans is 10 times larger than in 1850.

The blog also included data about racial disparity in different states across the country. It revealed that Iowa and Minnesota were amongst the worst states with the largest black-white disparities. These states, which are overwhelmingly white, hold the highest divides between black-white incarceration rates.

 In the land of the free and the home to the American dream, race and class inequality, especially relating to the subject of incarceration, persists. The American incarceration system is broken; with black men being incarcerated on average six times higher than white men, reform is much needed. In today’s society, America’s wars on drugs and crime have stigmatized African Americans and poor neighborhoods. Incarceration is now a common-life path for non-university black men. It is time for America to stop putting African Americans’ concerns behind bars and begin to change this trend.

*Jacqueline Stein is a MSc Human Rights candidate at the LSE. She can be reached at j.r.stein@lse.ac.uk.

Posted by: Posted on by Leila Nasr

Apr 4 2016

A Conversation on Race (Part 1): ‘The Geographies of Racism’

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The following podcast episodes are the first in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’.

This special program has been created by Sound Minds Radio – a research communication project funded by the Community Broadcasting Association of Australia. These two, fifteen minute radio episodes discuss issues related to the geographies of racism in Australia. The first episode is entitled ‘The Migrant, The Refugee and The Border’, and focuses on the notion of the border, and the construction of national identity. The second episode, ‘Navigating the City as a Young Muslim’, deals with how claims of ‘Islamic terrorism’ in the media play out at the local level.

Facebook: Sound Minds Radio
Twitter: @SoundMindsRadio

See also the written response to this Conversation on Race from Dr Jacqueline Nelson, here.

 

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Mar 10 2016

Dismantling labels: Colombia’s long-term challenge towards peace

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By Maria Hoyos-Carrero*

After fifty years of war the Colombian government and the Revolutionary Armed Forces of Colombia (FARC), the longest operating left-wing guerrilla army in the hemisphere, have agreed to sign a peace accord by the end of this month. Although it is still uncertain if they will be able to meet this deadline, it seems that the ongoing peace process is reaching its final stage. The parties have already agreed on four of the six points of discussion defined in the General Agreement that inaugurated the peace talks back in 2012 (integral rural development, political participation, transitional justice and victims, and illicit drug operation). They also have made important announcements towards other concerns, such as the definition of a “humanitarian demining mission” and a special compromise with the families of victims of forced disappearances. More recently, the UN Security Council has adopted a resolution to establish a political mission to monitor and verify the ceasefire and the end of hostilities. It seems that, this time, there is no turning back.

However, Colombia still has to face one major challenge: how to dismantle the friend/enemy distinction that has driven the conflict for all these decades. This is an urgent call, not only because former FARC members will look forward to reintegrating into society, but also because, in the development of Colombia’s conflict, labeling someone as an “enemy” became a dangerous way to consider some civilians as targets too. This process lead to the most horrible atrocities around the country and, aside from what has been achieved in the peace process, it seems that this friend/enemy dichotomy is far from disappearing.

A good example of this continuing issue is the story of Nelly Amaya Páez. She was a social leader from the Catatumbo region who was found dead in the urban centre of a small town called San Calixto, in the department[1] of Norte de Santander at the beginning of this year. According to the national press, Nelly was a member of the Catatumbo Peasant Association (ASCAMCAT), a strong social organization that since 2006 has demanded the recognition of peasants’ land rights and the implementation of rural development programs in the country. As its claims are similar to those demanded by FARC in the negotiations and most of its members live in places that have historically been controlled by the guerrilla army, ASCAMCAT has also been constantly labelled as a sympathiser of the rebel group.

The Catatumbo, like many other regions in Colombia, has a long history of violence. This is due to its natural resources (especially oil) and also because of its strategic position. It is located between the eastern mountain range and the border with Venezuela, a location that makes it ideal for drug trafficking. Hence, it is a very attractive zone for all armed groups.

Back in the 1980s, three major rebel groups—FARC, The National Liberation Army (ELN), and the Popular Army of Liberation (EPL)—dominated this region. Nonetheless, the guerrillas’ military strength and the rise of their political support among civilians (especially among peasants’ organizations) started to be seen as a terrible threat by landowners and drug traffickers who were being severely affected by the guerrillas’ activities. These landlords were being made victims of robbery, kidnapping, and extortion, among other crimes. Under this context some of these property-owners (in some cases with the help of drug traffickers) decided to support and finance self-defence armies.

The main aim of these new paramilitary groups was to eliminate the guerrillas by any means. Taking the friend/enemy logic to an extreme, they not only went after rebel combatants, but also started to prosecute anyone who could be considered a “guerrilla civilian”. As the National Centre of Historic Memory has reported, “the social and geographical coexistence of armed groups and civil population has functioned as a pretext to raise the criminal formula of ‘civilian rebels’”. Under this pretext and ignoring the fact that in armed conflicts relationships between civilians and combatants are usually blurred and mobile, labelling peasants as “enemies”, especially those who were actively engaged with any political activity, was one of their major tactics. The paramilitaries went after peasants, labourers, and left-wing leaders, especially those who were members of the Patriotic Union, a political party that was founded by former FARC members who demobilized during a previous peace deal in 1985.[2]

In the year 1997, the formation of the United Self Defence Forces of Colombia (AUC), a group that brought together all the paramilitary groups, looked forward to turning this plan into a national strategy. But during those years the means used to label someone as an “enemy” went far beyond what is permitted under international law. In Mapiripán, for example, a town usually related to FARC’s activities, the paramilitary leader Héctor Buitrago (alias “Martín Llanos”) dressed himself as a member of the guerrillas to ask for shelter and food. He also made a list of “rebel collaborators” that included every peasant who helped him. This same list was then used by the paramilitaries to target and kill fifty “rebels”. Now known as the “Mapiripán massacre” the Inter-American Court of Human Rights declared that these were not FARC members and imposed sanctions on the Colombian state for failing in the protection of civilians. However, what happened in Mapiripán is far from being an extraordinary event in Colombia. According to the National Centre of Historic Memory, between 1985 and 2012, there have been a total of 1,982 mass killings across the country.[3] The Centre claims that 1,166 of these cases have been attributable to paramilitary groups.

If we go back to the story of Nelly Amaya, it can be said that this targeting of civilians as “enemies” has not yet vanished. Today, FARC and ELN are still present in the Catatumbo. In addition to that, there is an important presence of Los Urabeños, one of the rising criminal gangs (now known as BACRIM) formed by some ex-members of the AUC[4] and a wide number of new recruits. Nelly, on the other side, was a true believer in the peace process. She was leading the pedagogic activities of the agreements and she wanted the peasants to lead the changes already approved by the two parties; but she still carried a stigma. She was a peasant leader in a region usually associated with a strong guerrilla presence. She was a former member of the Patriotic Union and she was politically engaged in ASCAMCAT. Once again it seems that a peasant leader lost her life after being labelled as a rebel collaborator.

With the signature of a peace accord, there will be an open door for the guerrilla to become a legal political movement. Whether ASCAMCAT or any other civilian organization has close relationships with FARC or not, one of Colombia’s greatest challenges is to learn how to dismantle this unhelpful friend/enemy dichotomy that has shaped the conflict for more than fifty years. There is a need to start thinking within a new political sphere where different ideas can coexist and be debated without people feeling in danger of being targeted for those very ideas. No advocacy in the name of a rural transformation should be seen as a threat. No one should lose their lives purely for being labelled an “enemy”.

* Maria is a current MSc Human Rights candidate at LSE and can be reached at M.Hoyos-Carrero@lse.ac.uk.

[1] A ‘department’ is the term commonly used for Colombian administrative units, or ‘states’.

[2] The party lost its political status in the year 2002 after a systematic prosecution and the homicide of most of its main leaders.

[3] The concept includes the killings of four or more persons found in a state of defencelessness.

[4] The AUC demobilized in the year 2005.

Posted by: Posted on by Leila Nasr

Mar 3 2016

Alone in the Jungle

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By Daniel Sippel*

About 30 miles away from Dover, Rambo asks Liz for new shoes. He needs them to jump on a lorry, which is supposed to take him to his paradise. Last week, a friend of Rambo’s died when he tried to do the same thing. Rambo, wearing white forearm protectors, will not die, because he is the king of the universe. At least, that’s what Rambo believes. He also believes that he is about 12 years old, but he doesn’t know for sure. Only a few of the boys in the Calais Jungle know their actual age.

“I’m horribly committed now”, says Liz, who volunteers as head of the unofficial Women’s and Children’s Centre in the Calais refugee camp. The Centre’s Facebook page has this “unofficial” in its title, a way to subtly point to the fact that despite the existence of 500 children, there is a conspicuous lack of “official” governmental assistance, or even a single UNHCR representative.

Thus Liz, a former British fire-fighter who worked with young arsonists in her free time, is left to be the camp’s Swiss army knife; for the 20 unaccompanied children between the age of ten and 13, she is mom, carer, psychotherapist and sparring partner. She hates her children, and she loves them. She swears from time to time when she speaks about them, calls them idiotic, brazen, stupid – and she is right.

Liz and Children. Calais. February 2016, D. Sippel.

Liz and Children. Calais. February 2016, D. Sippel.

Rambo is one of these stupid, unaccompanied children. He is from Afghanistan, like almost all his friends who were sent away by their families. Son and heir, he was dispatched to reach the Promised Land, Britain. For his family, who live in rural, Taliban-controlled Logar Province, Britain is the safe haven. It is the place where NATO does not kill civilians by accident, a region the Taliban surely does not invade. It is a country that has historically been a land of migrants, an island that offers a good welfare system, even for little Rambo, who has come from so far away.

“Reach the UK at any price. Do not engage with anyone until you are there,” is the lesson his family drilled into him. Unlike some of his friends in the camp who have family members in Britain, he has not. There is no legal way to fulfil his seemingly impossible ambition. But Rambo is determined to heed his family’s wish. He is determined to be a good son.

They call him Rambo here because he takes the greatest risks, Liz admits. For his last attempt, he left Liz’s van, where he lives, at 1am to walk seven hours to the nearby camp in Dunkirk, in order to have easier access to UK-bound lorries. Then he tried to jump on them. That is why he needs good shoes, and why Liz hates her children. She is utterly worried about them, like a mother, and describes Rambo as “scary”. Not because she is scared of him channelling his trauma through violent fights with her. She is a former fire-fighter – she knows how to defend herself. It is because she is scared what might happen to him. “It is a bit of a fucking nightmare” is Liz’s felicitous way to describe both her feelings and the humanitarian crisis in Calais.

A slender woman in her fifties, Liz knows her children. Over time, she has learned some Pashto, but the boys also understand her English by now. And if they don’t, they still can clearly distinguish the different tonalities of her voice: The indignant reproof when Rambo has erased all contacts on her antiquated, grey phone. The fervid plea, mixed with anger and frustration, when she appeals to the French Government to manage the crisis in a humane way. The incredible tenderness that her raspy voice miraculously evokes when she consoles the delicate yet hardened souls to make them forget what they have experienced.

A toy lies in the mud at Calais, a reminder of a childhood misplaced. Calais. February 2016, D. Sippel.

A toy lies in the mud at Calais, a reminder of a childhood misplaced. February 2016, D. Sippel.

For their journey to Europe, the boys have been drugged, beaten and put into tiny spaces by traffickers. Nevertheless, Liz says, they were hopeful when they arrived in Calais. They were close, very close to their goal. Just thirty miles from the white cliffs of Dover. Months of knee-deep mud; temperatures around freezing point; panic and riots over food distribution, and unfruitful attempts to cross the Channel, have taken their toll. Liz’s children are changed. Now, all Liz and her team can offer them is resilience, because they are “fucked, lonely, and frightened”. Like all frightened children the boys want to talk to their mom — their real mom, in Afghanistan, if she is still alive. So Liz organised phone top-ups for them, because it hurts her watching them falling apart slowly.

The French authorities are impatient. Rather than waiting for the camp or the boys to fall apart, the riot police will evict a part of the Jungle this week. The countless flashing blue lights on the horizon — police vans that surround the camp day and night — augur through the smoke of wooden stoves: the state is ready to restore its power monopoly. For the boys, the lights are the sword of Damocles. It means that they will be registered, that fingerprints will be taken. Their chances of crossing the Channel will be taken as well, they sense. The state will put them in containers, far away from the Children’s centre with film nights, counselling, kickboxing classes, and Liz, she believes. She does not know, the authorities have never spoken to her. Who knows what will happen. In any case, they must run soon to fulfil their parents’ dream. Rambo needs new shoes for that, his pair has holes. Liz gets him a new pair, size 2.

*Daniel Sippel is a final-year BSc student in Politics and Philosophy at LSE. Last year he received a Certificate in Social Sciences and Humanities from the Institut d’études politiques (SciencesPo) in Paris. The research trip to Calais was kindly supported by LSESU Student Action for Refugees.

Posted by: Posted on by Leila Nasr

Feb 25 2016

Can we predict a humanitarian emergency?

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By Nicolò Maganza*

Since the end of the Cold War, the humanitarian field has witnessed the emergence of new early warning systems, as well as the improvement of old ones, the purpose being to alert us of imminent humanitarian emergencies. To date, notwithstanding the proliferation of these instruments, their capacity to function effectively within the framework of humanitarianism is questionable. In discussing whether or not early warning systems can be made to function as planned, I argue that their current dysfunction within the humanitarian field is due the existence of a particular emergency imaginary.

Starting briefly with terminology, an early warning system can be defined as any ‘analytic forecasting tool’ or ‘any initiative that focuses on systematic data collection, analysis and/or formulation of recommendations, including risk assessment and information sharing’. The indicators used to collect data are those of potential conflict, food shortages and other related issues.

The objective of early warning systems is to allow for an early intervention by governments and other humanitarian actors (such as international organisations and NGOs), in order to reduce the possible predicaments deriving from an imminent hazard.

Early warning systems are now characterised by a higher degree of sophistication and reliability than ever before, thanks to consistent investments in this sector. Yet they do not function as planned in the hands of humanitarian actors in terms of risk prevention or reduction. To date, in addressing their inadequacy, the relevant literature seems to only focus on their technical and operational shortcomings.

Through the myopic identification of technical and operational shortcomings as the root cause of early warning systems’ dysfunction, though, the relevant literature seems to implicitly assert that improvements in the areas where these shortcomings are present may eventually transform early warning systems into efficient tools in the hands of humanitarian actors.

However, operational and technical deficiencies are only one of the aspects – albeit probably the most apparent – which explain why these instruments do not function adequately. Moreover, the focus on the technical fixes necessary to overcome the deficiencies mentioned above risks overlooking the real obstacle preventing early warning systems from functioning in the humanitarian field as intended: the current emergency imaginary.

The notion of ‘emergency’ has a broad meaning that includes any sort of disaster or crisis, ranging from natural catastrophes and conflicts to other forms of human suffering. As noted by prominent scholars like Calhoun and Cannon, even though there must be material conditions—either natural or depending on human agency—for an emergency to happen, this notion is socially constructed. Indeed, this construction of the ‘emergency imaginary’ is pivotal, as it ‘shapes the definition and rhetoric of emergencies, the ways in which they are produced and recognised, and the organisation of intervention’ (emphasis added).

Within this imaginary, emergencies are perceived as sudden and unpredictable events in contrast with the normal order. Thus, while Cannon argues that patterns of people’s vulnerability to the hazards that lead to emergencies develop over the course of time, the current emergency imaginary seems, instead, to consider emergencies as proceeding from ‘a background of ostensible normalcy, causing suffering or danger and demanding urgent response’. The way media speaks about emergencies (as being shocking and unexpected) represents proof of this social construction of emergencies.

The emergency imaginary’s emphasis on the immediacy of each occurrence and not on its causes affects the scope of the humanitarian response required. Such an imaginary provides an idea of humanitarianism based upon the concept of urgency—that is, the necessity of providing an immediate response to an acute and unpredictable need. It also recalls the older value of charitable action, whose purpose is sympathy and mitigation of suffering, not the transformation of the social order. As so constructed, humanitarian action should be ‘free from longer-term political and economic entanglements’ and should be limited to providing material assistance and relief from suffering through, for example, the distribution of food, medical supplies, and the building of shelters.

It can be argued that, since the end of World War II the current emergency imaginary has developed what is now called ‘classic humanitarianism’, that is, the idea of a humanitarian intervention free from any political and economic bias and geared to saving lives, not livelihoods. Additionally, the notion of ‘classic humanitarianism’ has not been relegated to the theoretical realm but has become the distinctive feature of the ICRC’s action, as it appears clear from its Fundamental Principles.

Returning to the early warning systems, it seems, at this point, that the current emergency imaginary leaves no room for their proper functioning in the hands of humanitarian actors. As long as emergencies are socially constructed as sudden and unpredictable events that are outside the normal order of things and demand immediate response, the scope of humanitarian intervention seems to be limited only to those acts providing material relief from suffering after the outbreak of an emergency and lasting until the end of it. Earlier actions, which are performed on the basis of early warning systems and attempt to hinder any emergencies from breaking out, are therefore outside its scope.

Events surrounding the 2011 famine in Somalia support this argument. At the time, the famine seemed to have come as a surprise. However, states had collected several early warnings over the course of the preceding years—they just did not take action until the famine had been declared by the UN and had reached the front covers of newspapers. States, therefore, did not undertake any preventive humanitarian intervention before the situation fit the characteristics of an emergency as currently imagined and constructed.

Drawing on this example, it is clear that ‘the failure of the international community to respond to potential crises before the declaration of a humanitarian catastrophe is not a technical failure of early warning’. Instead, it is a failure of humanitarianism itself, as constructed by the current emergency imaginary.

This argument is not meant to present early warning systems as fundamentally incompatible with humanitarianism. In fact, they may operate and become a valuable asset in the hands of humanitarian actors if a change in the current emergency imaginary occurs which draws us towards a social construction of emergencies as long term patterns of vulnerability developed through societal, economic and political factors.

The adoption of a new emergency imaginary would also entail a new and different humanitarian intervention with a more developmental approach to relief. Humanitarianism should not only be geared to saving lives but should also consist of an action early enough to protect livelihoods before lives are threatened, in accordance with people’s own priorities. It is also worth noting that this approach in favour of a new – and more appropriate – construction of the emergency imaginary and, subsequently, of humanitarianism is already present in the mandates of several international organisations and NGOs, which attempt to combine humanitarian intervention along with developmental goals.

Early warning systems can be fit for humanitarian intervention. However, what is primarily needed for this to occur is not, as most of the relevant literature seems to suggest, the resolution of their operational and technical shortcomings. Only accepting a new emergency paradigm, which shapes a different notion humanitarian intervention, as capable of achieving developmental objectives through early actions, may allow humanitarian actors to fully take advantage of the life-saving function of early warning systems.

*Nicolò Maganza is a current MSc Human Rights student at the LSE. He also holds a Master’s in Law from the Università degli Studi di Milano.

Posted by: Posted on by Leila Nasr

Feb 18 2016

Genocide is the tip of the iceberg: Reviewing the Guatemalan case

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By Diego Alburez-Gutiérrez*

In 2013 the former Guatemalan dictator Efraín Ríos-Montt was tried in a national court for genocide and crimes against humanity. He was found guilty and sent to prison, but the verdict was quickly overturned on technical grounds. Local reactions to these events were varied, since the Mayan genocide is one of the most controversial issues for Guatemalan society today. In this article, I draw on the Ríos-Montt case to discuss the Mayan genocide not as an isolated event, but only as the momentary surfacing of a set of institutional arrangements that also explain the astonishing inequality that prevails in this Central American country.

The background

There are around 17 million people in Guatemala, half of whom are of mixed Hispanic ascent while the rest belong to one of the 23 Mayan indigenous groups. The Guatemalan civil war (1960-1996) left approximately 200,000 civilian casualties; 83% were indigenous Mayan. The conflict reached its peak towards the end of the 1970s, when the Marxist guerrillas gained strength and popular support following the Sandinista victory in neighbouring Nicaragua.

Ríos-Montt was de-facto president from 1982 to 1983 and established the most brutal government of the civil war. In a short period, his government formalised a counterinsurgent strategy that eventually led to the downfall of the guerrilla movement. The new military approach combined scorched-earth policies with psychological warfare to isolate the fighting guerrillas from their supporters in rural areas. The beginning of the 1980s was the civil war’s most violent period (measured both in terms of the absolute number of civilian casualties and the magnitude of the mass killing events), since entire villages were burnt down and their inhabitants murdered in an effort to drain the water and let the fish die.

Number of victims per violent event. Observations above the red line are mass killings (i.e. four or more victims per event). Data was obtained from a convenience sample. Source: Author, with data from the AAAS/CIIDH (1999) database.

Number of victims per violent event. Observations above the red line are mass killings (i.e. four or more victims per event). Data was obtained from a convenience sample.
Source: Author, with data from the AAAS/CIIDH (1999) database.


The setting of a genocide

What makes genocide ‘the crime of crimes’? Technically, it’s not the scale of the event. Article 2 of the Convention for the Prevention and Punishment of the Crime of Genocide of 1948, and Article 6 of the Rome Statute of the International Criminal Court provide the legal definition of genocide. These treaties do not specify any kind of threshold over which an event should be considered genocidal. As a matter of fact, the essential element of genocide is intent – the motivation to kill or otherwise harm individuals because of their belonging to ‘a national, ethnical, racial or religious group’, as a means of destroying the group in part or as a whole.

It is important, then, to understand the origins of this intent when talking about the Guatemalan case. Was it a spontaneous phenomenon? Or was it the outcome of long historical processes? Answering these questions is complicated by the fact that genocide is a huge endeavour, which makes it difficult to attribute sole responsibility to any individual person. Genocide is never the achievement of a lonely madman. In fact, the Guatemalan genocide required institutional support and close coordination between the military, militias, national administrative systems, and more. How or why genocide happens is not fully understood, but it is believed that social institutions play a central role in its development; hence, a focus on institutions is particularly useful for understanding the Guatemalan events.

In Guatemala, the idea of a genocide against the indigenous population was not born in Ríos-Montt’s head, nor in the heads of any of his military predecessors. This idea has been there since the Spanish conquistadors established the blueprints of the country’s economy and modern state. As a result, the national institutions have systematically excluded the indigenous populations, as shown by the unequal investment in health and education for indigenous areas. Current income inequalities are a consequence and a sad reminder of this. In 2014, the World Bank’s Living Standards Measurement Survey showed that 80% of the Mayan population are poor (in contrast, ‘only’ 50% of the non-Mayans are poor). And this gap has been widening over the past ten years. In Mayan regions, healthcare, justice and many other services are often provided by traditional means. However, these indigenous institutions have also been weakened by the Guatemalan nationalist project. Since the country’s independence from Spain in 1821, various state policies have aimed at homogenising the population with the hope of achieving an ideal of ‘one country, one people’.

In this context, not only did state institutions evolve in a way that did not work to prevent a genocide, but also they nurtured its potentiality by developing unevenly – like a two-legged stool, providing for some, but not for others. Since the national institutions were never intended to protect the indigenous populations, they obviously failed to do so during the civil war. There were simply fewer obstacles on the road that led to the extermination of the Mayan populations. Furthermore, it is possible that even repressive measures like press censorship were ethnically biased. My ground-level research shows that, throughout the civil war, violence against indigenous communities was considerably less likely to make it into the news. A violent event in a non-indigenous area had a 50% chance of being reported in the newspapers. By contrast, if the event took place in an indigenous area, the probability was only 5%.

As a final point, the previous discussion is not meant to excuse the military men who were in charge at the time, but seeks to highlight the necessity of a historical reflection on the institutional setting that facilitated the genocide. If the leaders had the power to prevent or stop the genocide and failed to do so, then they are guilty by definition. But it is important to note that it was not enough for them to want the genocide to happen. Everything needed to be set up in such a way that it could happen. This is why the current discussion on the Guatemalan genocide concerns much more than the imprisonment of a handful of ex-military. It is imperative that the Guatemalan justice system proves that it can find responsibilities for the historic atrocities. However, from an institutional standpoint, it would be good if the trials took place along with the necessary measures to prevent the historical inequalities and exclusion of indigenous communities from being further reproduced. In this sense, it is encouraging that young people are starting to realise that they can join the national discussion without fearing the state repression that affected their parents’ generation. As members of the post-war generations become more politically engaged, there are reasons for optimism.

*Diego Alburez-Gutierrez is a PhD Candidate in Demography and Population Studies at the London School of Economics. His current research looks at the population effects of displacement and excess mortality during the Guatemalan civil war.

Posted by: Posted on by Leila Nasr

Feb 11 2016

A Call for Safe Passage: End Avoidable Risk and Death in the Aegean Crossing

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This post is the final of four articles to be published as part of this week’s intensive series on refugee and migration rights.

By Phil Bracey*

Asylum seeker boats crossing the Aegean Sea, headed for Lesvos. Creative Commons.

Asylum seeker boats crossing the Aegean Sea, headed for Lesvos. Creative Commons.


Phil recently returned from Lesvos where he volunteered with VCA, a small NGO whose team provided food and clothing distribution at Kara Tepe camp and served as an emergency response team for boats arriving along the coast near Kara Tepe. This piece is informed by his experience there.

The humanitarian response effort in Lesvos is not perfect. However, for the individuals and organizations operating there, this imperfection is no secret—ways to improve the conditions of camps and the quality of assistance being offered are constantly being re-evaluated and acted upon. From the shores to the camps, the response effort has come a long way since the number of arrivals skyrocketed towards the end of 2015. This is not to say that the island is paradise by any means—there is still suffering, tragedy, frustration, and inefficiency; yet, as of now, asylum seekers that arrive on Lesvos are greeted by a humanitarian response effort that is focused on constant improvement and does what it can to ease the difficulties faced by those passing through.

The Aegean Sea, however, offers no such support or comfort to those moving through its waters on the way to Greece. Many people reading this will likely have read or heard about the sorts of boats people are coming across this water in small, low-lying, overcrowded rubber dinghies – a far cry from the ferries that go back and forth across the same water for less than €50 while the ride that has continued to claim lives demands that refugee passengers pay closer to €900 for the privilege.

The distance between the two coastlines is in the realm of 10km if you’re around Molyvos in northern Lesvos, and nearer to 20km in the southeastern part near Mytilene (these are the two areas that have seen the most boats coming in). In other words, Turkey is not some far-off land, barely visible through the mist as it clings to the horizon. No; you can see buildings on the other side, even car headlights moving slowly along if you watch closely. The island of Manhattan measures longer than the distance separating Lesvos and Turkey. Yet estimates from 2015 put the number that drowned during this crossing at over 800 for the year, and even for those whose journey over the water carries on with relative seamlessness, the experience is nonetheless a wet, cold, and terrifying one.

The question that of course arises out of all of this is—why? If the international community has created a legal framework[1] within which protection is to be offered to those individuals fleeing persecution in their home countries, should not a continuous effort be made to ensure the safety of their lives from the earliest moment that such a move becomes within its grasp?

In explaining the absence of a safe passage for those that have been, and still are, crossing in dinghies, one might point to the fact that the actual method of travel being used by them involves an illegal exit from Turkey and an illegal entry into Greece. True enough, but that explanation is lacking in significant ways. Here, it is important to note that while the crossing itself is an illegal exit from Turkey and entrance into Greece, once a refugee steps ashore, and providing that they present themselves to the appropriate authorities in a timely manner, their presence is legal and they are not subject to any form of prosecution with regard to their method of entry[2]. Boat arrivals on Lesvos are taken from the shore, by bus, to a detention center at which they are given police documents[3] that allow families and individuals to then move freely. This practically always equates to the purchase of a ferry ticket to Athens and a departure from Lesvos as soon as possible. Given the effect of this aspect of international law, then, why not simply take steps to regularize and provide for safety during the passage itself?

It might be said that safe passage is not an appropriate solution on its own, and that the proper answer is helping ensure that Turkey can host the millions of refugees currently within its territory while securing to them their rights as refugees. Setting aside, then, the opinions one might have regarding the moral character of the political dealings between the EU and Turkey, the issue that they are ostensibly aimed at solving is an important and understandable one—the responsibility to offer protection to those seeking it after leaving their homes in countries like Syria and Iraq is not one that can be upheld by a just a handful of countries. And if a country is going to host large numbers of asylum seekers, that country should receive support from other states to assist on the logistical end of that responsibility. Most people, I think, would agree on the fairness behind that general idea.

However, this point still fails to explain the absence of safe passage now and in previous months. If a deal is being worked on, fine—but while the details of such a pact are being hammered out or the issues with implementation are being dealt with, asylum seekers in large numbers continue to put their lives at risk to make this crossing. Measures should be taken to ensure that asylum seekers need not continue to put themselves in danger as they seek to enter Greece. The fact that governments have not yet done something to ensure safe passage for those they know are making the crossing this way— and sometimes dying in the process—should be looked at as a conscious decision, an active inaction, on the part of both European and Turkish authorities.

Indeed, for all the uncertainty and confusion that can characterize different elements of a humanitarian crisis, there are several aspects regarding this crossing that are clear, among them being that it is not safe—especially relative to the level of safety on a ferry performing a similar crossing—and that it is not stopping. If this route to Europe was one rarely used, then establishing safe passage may not be a priority in the same way. But this is not the case. Hundreds of thousands have come this way, continue to come this way, and the human smugglers that facilitate it have raked in billions of dollars.

Instead of establishing a system through which unsafe crossings need no longer occur, it seems as if states have paused to realize that the women and men who are stepping with their families into those flimsy rubber boats are worth more in their political capital than their humanity. As such, there remains no safe crossing, but no time lost at the negotiating table, with money to exchange hands in return for promises of reductions in the activities of human smugglers and the numbers of crowded boats shoving off from Turkish beaches. The boats are still coming.

At the absolute least, would it not make sense to establish a temporary safe passage, to prevent unnecessary deaths until governments are able to agree upon a deal that works for them and for those seeking safety within their territories? Why should the price of political bickering and stalemate be paid for with the very lives of those to whom the international community has bound itself to protect? Safe passage must be guaranteed.

[1] Created as a universal, binding instrument for the protection refugees, the 1951 Convention Relating to the Status of Refugees has been ratified by 145 countries. There are 146 States Party to the Convention’s important 1967 Protocol.

[2] See Article 31 of the 1951 Convention and interpretations/applications thereof.

[3] This registration process is currently dependent upon the nationality of the individual, a point which gives rise to an entirely different, though important, argument. The great majority arrivals are of a nationality that allows them to be registered by Greek police.

* Phil Bracey is a student in the MSc Human Rights programme at LSE. He can be reached at p.bracey@lse.ac.uk.

Posted by: Posted on by Leila Nasr

Feb 10 2016

Seeking Asylum in Europe

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By Nicolò Maganza*

This post is the third of four articles to be published as part of this week’s intensive series on refugee and migration rights. Stay tuned for tomorrow’s article on safe passage for asylum seekers in the Aegean Crossing.

Syrian refugees strike in front of Budapest Keleti railway station. Refugee crisis. Budapest, Hungary, Central Europe, 3 September 2015. Licensed under Creative Commons

Syrian refugees strike in front of Budapest Keleti railway station. Refugee crisis. Budapest, Hungary, Central Europe, 3 September 2015. Licensed under Creative Commons

The UN Agency for Refugees (UNHCR) recently stated that during 2015 over 1 million refugees and migrants reached Europe on vessels run by smugglers in pursuit of international protection from war, violence and poverty. The number of persons unlawfully crossing the Mediterranean has increased enormously since 2014, when it was slightly more than 216,000, while the number who have gone missing or died during the journey in 2015 reached 3,735.

The difficult scenario depicted by these figures has brought to the forefront existing critiques as to whether or not European policies on asylum and migration are capable of guaranteeing the security of the EU’s external borders without obstructing the protection of those persons in real need of help.

In May 2015, the European Commission adopted a new Agenda on Migration in an attempt to address some of these critiques. Within the Agenda’s goals to resolve the current refugee crisis, two particular aspects have to be addressed in the immediate future. The first one is the necessity to save lives and secure external borders, enhancing the management role of the EU through the action of the European border agency, Frontex. The other aspect of this is the necessity of strengthening the European Common Asylum System (CEAS) through the relocation of those in need of international protection amongst all Member States.

In order to assess current transformations of European policies on asylum and migration, it is crucial for us to understand what the CEAS is, the main instruments that constitute it, and why a lawful access to the EU territory is often very difficult – if not impossible – for refugees and asylum seekers.

As a general premise, it is important to remember that when adopting common rules on asylum and migration, the EU must comply at all times with the international protection obligations assumed by all of its member states under International Refugee and Human Rights Law, and also under Article 18 of the EU Charter of Fundamental Rights (EUCFR). According to scholars, the right to asylum ex Article 18 should be understood as a right to seek asylum; that is, a right to obtain access to the asylum procedures in a given country.

Within this legal framework, the CEAS was created with the aim of harmonising the national asylum systems present among the various Member States. This means that persons in need of international protection should be able to receive equivalent treatment in terms of reception conditions, and access to proper procedures and status determination, regardless of the Member State in which their asylum claim is submitted.

The CEAS is composed of four recast directives that regulate the essential features of the asylum process within host countries: i) the Directive 2011/95 (Qualification Directive) on standards for the qualification of third-country nationals as beneficiaries of international protection and for the content of the protection granted; ii) the Directive 2013/32 on common procedures for granting and withdrawing international protection; iii) the Directive 2013/33 laying down standards for the reception of applicants for international protection; iv) the Directive 2001/55 on temporary protection in the event of a mass influx of displaced persons.

One of the most striking features of the CEAS is that, unlike other regional asylum systems, the Qualification Directive does not extend refugee status to those persons who are in real need of protection but fall out of the scope of the refugee definition, as expressed in article 1(A)(2) of the 1951 Geneva Convention. Indeed, the aim is to preserve the original scope of the refugee definition. However, this does not mean that the directive falls short in recognising the plight of other individuals seeking refuge, who are instead qualified as beneficiaries of another form of international protection: subsidiary protection.

In addition to these directives, the Dublin Regulation completes the CEAS, establishing the criteria for determining the Member State responsible for the examination of the asylum claim. Its purpose is burden sharing, which means that the Dublin Regulation aims to guarantee the presence of at least one Member State responsible for each asylum claim. Usually the designated State is that of applicant’s arrival.

If an individual claims asylum in a Member State different from that which was primarily designated as responsible according to the Dublin criteria, this second Member State may be able to reject the claim and transfer it to the competent one. However, article 3(2) contains the so-called ‘sovereignty clause’, which makes this transfer impossible in situations when there are substantial grounds for believing that the Member State primarily responsible for the asylum claim presents systemic flaws in the asylum procedure and in the reception conditions. In such cases, the transfer would involve a risk of inhuman or degrading treatment for the applicant.

The jurisprudence of the ECtHR and CJEU also imposed the obligation to apply the sovereignty clause in favour of some asylum seekers coming from Italy and Greece in situations where these two countries, although designated as primarily responsible according to the Dublin regulation, were incapable of guaranteeing an adequate treatment of the claimants[1]. Furthermore, it should also be noted that the geographical position of these two countries makes them the major point of arrival for those seeking international protection. In light of that, the relocation scheme of asylum seekers from Italy and Greece to other countries, presented in the new Agenda, has been praised because it develops a new solidarity approach for the management of asylum claimants, which partly finds its roots in the sovereignty clause.

Another problematic aspect of the asylum discourse in Europe is that CEAS’s rules are only applicable once the asylum seeker is present on the territory of a Member State[2]. Nonetheless, lawful access to European territory has become very difficult for the vast majority of people in need of international protection. Indeed, the increase of mixed movements of asylum seekers and other irregular migrants towards the EU has determined the adoption of strict immigration rules. The objective of controlling and securing the external borders against terrorism and other threats seems to have prevailed over the need for protection in favour of those who seek it.

Further, we can see that the instruments designed to combat irregular migration, such as visa requirements[3] and carrier sanctions[4], are (in theory) compliant with the obligations of international protection assumed by Member States and under Article 18 of the EUCFR. Indeed, they contain provisions that should exclude their application vis-à-vis those who seek international protection[5]. However, in practice, this reveals some serious shortcomings. When implementing these instruments, European States appear to be incapable of distinguishing effectively between ‘real’ asylum seekers and other irregular migrants present within mixed migratory movements. According to the UNCHR, this phenomenon risks undermining the ability of asylum seekers to benefit from international protection.

The analysis of the issues related to the CEAS and access to EU territory becomes relevant when assessing the reforms in the asylum and migration domains proposed by the European Commission in the new Agenda. Surely, it is now too soon to make a full evaluation of whether or not these reforms will do more harm than good for the plight of refugees and the institution of asylum. For the moment, the hope is that the European institutions will be able to undertake these reforms in a way that ensures compliance with the international protection obligations and with Article 18 of the ECFR, not only in theory but also in practice.

[1] CJEU, N.S. v. Secretary of State for the Home Department, C-411/10, 21 December 2011 ; ECtHR, M.s. v. Belgium, No. 50012/08, 31 January 2012; ECtHR, Tarakhel v. Switzerland, No. 299217/12, 4 November 2014.

[2] Directive 2013/32/UE, art.3.

[3] Regulation (CE) 539/2001.

[4] Directive 2001/51/CE.

[5] More precisely, it should be noted that the Regulation (CE) 539/2001 itself says nothing about the exemption of visa requirements for those seeking international protection. However such exemptions can be found in articles 5(4)(c) and 13(1) of Schengen Borders Code.

* Nicolò Maganza received a Master’s in Law from the Università degli Studi di Milano. He is also a current Msc Human Rights student at LSE.

 

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