By <a href="https://theconversation.com/profiles/kerstin-carlson-344474">Kerstin Carlson</a>, <a href="http://theconversation.com/institutions/university-of-southern-denmark-1097">University of Southern Denmark</a>

In June this year two lawyers filed a complaint at the International Criminal Court (ICC) naming European Union member states’ migration policies in the Mediterranean as crimes against humanity. 

The court’s Prosecutor, Fatou Bensouda, must decide whether she wants to open a preliminary investigation into the criminality of Europe’s treatment of migrants. 

The challenge against the EU’s Mediterranean migrant policy is set out in a 245-page document prepared by Juan Branco and Omer Shatz, two lawyer-activists working and teaching in Paris. They <a href="https://www.statewatch.org/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf">argue that EU migration policy</a> is founded in deterrence and that drowned migrants are a deliberate element of this policy. The international law that they allege has been violated – crimes against humanity – applies to state policies practiced even outside of armed conflict. 

Doctrinally and juridically, the ICC can proceed. The question that remains is political: can and should the ICC come after its founders on their own turf?

There are two reasons why the answer is emphatically yes. First, the complaint addresses what has become a rights impasse in the EU. By taking on an area stymying other supranational courts, the ICC can fulfil its role as a judicial institution of last resort. Second, by turning its sights on its founders (and funders), the ICC can redress the charges of neocolonialism in and around Africa that have dogged it for the past decade.

<h2>ICC legitimacy</h2>

The ICC is the world’s first permanent international criminal court. Founded in 2002, it currently has 122 member states. 

So far, it has only prosecuted Africans. This has led to persistent critiques that it is a neocolonial institution that “only chases Africans” and only tries rebels. In turn, this has led to pushback against the court from powerful actors like the African Union, which <a href="http://www.loc.gov/law/foreign-news/article/african-union-resolution-urges-states-to-leave-icc/">urges its members to leave the court</a>. 

The first departure from the court occurred in 2017, when <a href="https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court.html">Burundi left</a>. The <a href="https://www.nytimes.com/2019/03/17/world/asia/philippines-international-criminal-court.html">Philippines</a> followed suit in March of this year. Both countries are currently under investigation by the ICC for state sponsored atrocities. <a href="https://justiceinconflict.org/2018/09/10/a-graceful-exit-for-south-africas-icc-withdrawal-plans/">South Africa threatened withdrawal</a>, but this seems to have blown over.

In this climate, many cheered the news of the ICC Prosecutor’s <a href="https://www.hrw.org/news/2019/04/23/afghanistan-icc-abandons-field">2017 request to investigate</a> crimes committed in Afghanistan. As a member of the ICC, Afghanistan is within the ICC’s jurisdiction. The investigation included atrocities committed by the Taliban and foreign military forces active in Afghanistan, including members of the US armed forces. 

The US, which is not a member of the ICC, <a href="https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law">violently opposes</a> any possibility that its military personnel might be caught up in ICC charges. In <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1448">April 2019</a> the ICC announced that a pre-trial chamber had shut down the investigation because US opposition made ICC action impossible. 

Court watchers <a href="https://www.hrw.org/news/2019/04/23/afghanistan-icc-abandons-field">reacted with frustration and disgust</a>.

<h2>EU migration</h2>

An estimated <a href="https://www.theguardian.com/world/2018/jun/20/the-list-europe-migrant-bodycount">30,000 migrants have drowned</a> in the Mediterranean in the past three decades. International attention was drawn to their plight during the migration surge of 2015, when the image of <a href="https://www.theguardian.com/world/2015/dec/31/alan-kurdi-death-canada-refugee-policy-syria-boy-beach-turkey-photo">3-year-old Alan Kurdi</a> face-down on a Turkish beach circulated the globe. More than one million people entered Europe that year. This led the EU and its member states to close land and sea borders in the east by erecting fences and completing a Euro 3 billion deal with Turkey to keep migrants there. NATO ships were posted in the Aegean to catch and return migrants. 

Migrant-saving projects, such as the Italian Mare Nostrum programme that <a href="https://www.refworld.org/pdfid/548713624.pdf">collected 150,000 migrants in 2013-2014</a>, were replaced by border guarding projects. Political pressure designed to reduce the number of migrants who made it to European shores led to the <a href="https://www.theguardian.com/world/2018/sep/12/migrant-rescue-ships-mediterranean">revocation and non-renewal of licenses</a> for boats registered to NGOs whose purpose was to rescue migrants at sea. This has led to the current situation, where <a href="https://qz.com/1639293/only-one-refugee-rescue-boat-operated-by-aid-groups-remains-in-the-mediterranean-sea/">there is only one boat patrolling</a> the Mediterranean.

The EU has handed search and rescue duties over to the Libyan coast guard, which has been accused repeatedly of <a href="https://www.theguardian.com/global-development/2019/jan/21/eu-support-for-libya-contributes-to-extreme-abuse-of-refugees-human-rights-watch-study">atrocities against migrants</a>. European countries now negotiate Mediterranean migrant reception on <a href="https://www.theguardian.com/world/2019/jul/23/eu-countries-agree-plan-to-handle-migrants-and-refugees">a case-by-case basis</a>.

<h2>A rights impasse</h2>

International and supranational law applies to migrants, but so far it has inadequately protected them. The <a href="https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf">law of the sea</a> mandates that ships collect people in need. A series of refusals to allow ships to disembark collected migrants has <a href="https://www.jus.uio.no/nifs/english/research/projects/oslos/events/seminars/2018-11-14-migration.html">imperilled this international doctrine</a>. 

In the EU, the <a href="http://www.europarl.europa.eu/RegData/etudes/PERI/2017/600414/IPOL_PERI(2017)600414_EN.pdf">Court of Justice</a> oversees migration and refugee policies. Such oversight now includes a two-year-old deal with Libya that some claim is tantamount to “<a href="https://www.theguardian.com/commentisfree/2019/feb/05/eu-deal-libya-refugees-libyan-detention-centres">sentencing migrants to death</a>.” 

For its part, the European Court of Human Rights has established itself as “<a href="https://theconversation.com/why-the-european-court-of-human-rights-is-no-friend-to-migrants-42129">no friend to migrants</a>.” Although the court’s 2012 decision in <a href="https://www.amnesty.org/en/latest/news/2012/02/italy-historic-european-court-judgment-upholds-migrants-rights/">Hirsi</a> was celebrated for a progressive stance regarding the rights of migrants at sea, it is unclear <a href="https://brill.com/view/journals/emil/20/4/article-p396_3.xml?lang=en">how expansively that ruling applies</a>.

European courts <a href="https://hudoc.echr.coe.int/eng-press#%7B%22itemid%22:%5B%22003-6443361-8477507%22%5D%7D">are being invoked</a> and making rulings, yet the journey for migrants has only grown more desperate and deadly over the past few years. Existing European mechanisms, policies, and international rights commitments are not producing change. 

In this rights impasse, the introduction of a new legal paradigm is essential. 

<h2>Fulfilling its role</h2>

A foundational element of ICC procedure is complementarity. This holds that the court only intervenes when states cannot or will not act on their own. 

Complementarity has played an unexpectedly central role in the cases before the ICC to date, as African states have self-referred defendants claiming that they do not have the resources to try them themselves. This has greatly contributed to the ICC’s political failure in Africa, as rights-abusing governments have handed over political adversaries to the ICC for prosecution in bad faith, enjoying the benefits of a domestic political sphere relieved of these adversaries while <a href="https://www.press.uchicago.edu/ucp/books/book/distributed/A/bo47223014.html">simultaneously complaining of ICC meddling in domestic affairs</a>.

This isn’t how complementarity was supposed to work. 

The present rights impasse in the EU regarding migration showcases what complementarity was intended to do – granting sovereign states primacy over law enforcement and stepping in only when states both violate humanitarian law and refuse to act. The past decade of deadly migration coupled with a deliberately wastrel refugee policy in Europe qualifies as just such a situation.

Would-be migrants don’t vote and cannot garner political representation in the EU. This leaves only human rights norms, and the international commitments in which they are enshrined, to protect them. These norms are not being enforced, in part because questions of citizenship and border security have remained largely the domain of sovereign states. Those policies are resulting in an ongoing crime against humanity. 

The ICC may be the only institution capable of breaking the current impasse by threatening to bring Europe’s leaders to criminal account. This is the work of last resort for which international criminal law is designed. The ICC should embrace the progressive ideals that drove its construction, and engage.<img decoding="async" loading="lazy" src="https://counter.theconversation.com/content/120851/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important" />

<a href="https://theconversation.com/profiles/kerstin-carlson-344474">Kerstin Carlson</a>, Associate Professor International Law, <a href="http://theconversation.com/institutions/university-of-southern-denmark-1097">University of Southern Denmark</a>

This article is republished from <a href="http://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/migration-in-the-mediterranean-why-its-time-to-put-european-leaders-on-trial-120851">original article</a>.

Migration in the Mediterranean: It’s time for the ICC to put European leaders on trial, here’s why

DAKAR (Thomson Reuters Foundation) &#8211; Dozens of Africans say they were sold for labour and trapped in slavery in Algeria in what aid agencies fear may be a widening trend of abusing migrants headed for a new life in Europe.
Algerian authorities could not be reached for comment and several experts cast doubt on claims that such abuses are widespread in the north African country.
The tightly governed state has become a popular gateway to the Mediterranean since it became tougher to pass through Libya, where slavery, rape and torture are rife.
Amid a surge in anti-migrant sentiment, Algeria since late last year has sent thousands of migrants back over its southern border into Niger, according to the United Nations Migration Agency (IOM), where many tell stories of exploitation.
The scale of abuse is not known, but an IOM survey of thousands of migrants suggested it could rival Libya.
The Thomson Reuters Foundation heard detailed accounts of forced labour and slavery from an international charity and a local association in Agadez, Niger’s main migrant transit hub, and interviewed two of the victims by telephone.
“The first time they sold me for 100,000 CFA francs ($170),” said Ousmane Bah, a 21-year-old from Guinea who said he was sold twice in Algeria by unknown captors and worked in construction.
“They took our passports. They hit us. We didn’t eat. We didn’t drink,” he told the Thomson Reuters Foundation. “I was a slave for six months.”
Accounts of abuse are similar, said Abdoulaye Maizoumbou, a project coordinator for global charity Catholic Relief Services. Of about 30 migrants he met who were deported from Algeria, about 20 said they had been enslaved, he said.
In most cases, migrants said they were sold in and around the southern city of Tamanrasset shortly after entering the country, often by smugglers of their own nationality, he said.
Some said they were tortured in order to blackmail their parents into paying the captors, but even when the money arrived they were forced to work for no pay, or sold, said Maizoumbou.
One man told the Thomson Reuters Foundation he slept in a sheep pen and suffered beatings if an animal got sick or dirty.
“They would bring out machetes and I would get on my knees and apologise and they would let it go,” said Ogounidje Tange Mazu, from Togo.
The IOM in Algeria has received three reports this year from friends and relatives of African migrants held hostage and forced to work in the country. “It’s probably just an indication that it is happening. How big it is we don’t know,” said its chief of mission Pascal Reyntjens.
<h3>TWO SIDES TO THE STORY</h3>
Several analysts considered it unlikely that slavery was widespread in Algeria, since the country has a functioning judiciary and strong police force &#8211; unlike Libya.
Algerian authorities could not be reached for comment, but a senior official said last week the country is facing a “surge of migration” and needs more help. [nL5N1ST568]
In a statement this month, the government rejected reports from a U.N. human rights team that its mass deportations of migrants were inhuman, saying that it is doing what is necessary to ensure the safety of its citizens.
“I would be very surprised that (slavery) would be allowed to happen in Algeria,” said Issandr El Amrani, North Africa project director for the International Crisis Group.
“The situation is just not comparable to Libya,” he added.
But in the ghettos of Agadez, Niger’s main transit hub, some people told a different story.
“What happens in Algeria surpasses what happens in Libya,” said Bachir Amma, a Nigerien ex-smuggler who runs a football club and a local association to inform migrants of the risks.
Migrants in Libya are often starved and beaten by armed groups, and there have been reports of “open slave markets” where migrants are put on sale, according to the U.N. human rights office. [nL8N1R32QD]
Amma said he had spoken with more than 75 migrants back from Algeria, the majority of whom described slave-like conditions.
“NGOs don’t know about this because they’re too interested in Libya,” he told the Thomson Reuters Foundation.
In 2016, the IOM surveyed about 6,300 migrants in Niger, most of whom had returned from Algeria and Libya. Sixty-five percent of those who had lived in Algeria said they had experienced violence and abuse, compared to 61 percent in Libya. An estimated 75,000 migrants live in Algeria, the IOM said.
($1 = 582.8800 CFA francs)
<div class="container_28wm1">
<div class="attribution_o4ojT">
Reporting by Nellie Peyton, editing by Lyndsay Griffiths; Please credit Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women&#8217;s rights, trafficking, property rights, and climate change. Visit www.trust.org
</div>
</div>

Africa’s new slavery

<div style="display: block; position: relative; max-width: 730px;">
<div style="padding-top: 56.25%;"><iframe style="width: 100%; height: 100%; position: absolute; top: 0px; bottom: 0px; right: 0px; left: 0px;" src="//players.brightcove.net/1571595826001/default_default/index.html?videoId=5672106850001" allowfullscreen="" border=0 frameborder=0></iframe></div>
</div>
Over 4000 Nigerians have been returned from Libya since April this year. CNBC Africa&#8217;s Damilola Ade-Odiachi reports on what happens to these Nigerians upon their return.

What’s next for Nigerian returnees from Libya?

<div style="display: block; position: relative; max-width: 730px;">
<div style="padding-top: 56.25%;"><iframe style="width: 100%; height: 100%; position: absolute; top: 0px; bottom: 0px; right: 0px; left: 0px;" src="//players.brightcove.net/1571595826001/default_default/index.html?videoId=5670949856001" allowfullscreen="" border=0 frameborder=0></iframe></div>
</div>
As Nigerian migrants continue to return home from Libya, CNBC Africa’s Damilola Ade-Odiachi spoke to Chukwu John, one of the returnees, about his journey to Libya and the deportation process.

Nigerian migrant describes horrifying experience in Libya

Franzisca Zanker | Freiburg University
Hardly a day goes by without a discussion on the migrants (including refugees) who have entered Europe in large numbers since 2015. Under the European Union Commission’s New Partnership Framework launched in 2016, one of the major short-term objectives is to ‘increase the rate of returns to countries of origin’, and last week, the president of the EU Commission announced a ‘more effective EU policy on return’. That said, return is tricky. It is unclear how effective it is in deterring future migration. And it may even have detrimental effects on the countries of origin. Take the Gambia for example.
<img decoding="async" loading="lazy" class="wp-image-288182 size-full" src="http://cnbc.africa/wp-content/uploads/2017/10/Refugees_on_a_boat_Wikimedia1.jpg" alt="" width="2048" height="1365" />
Gambians were among the top nationalities leaving West Africa for Italy in 2016. In total 11,929  Gambians arrived last year. But because they have a new democratically-elected government, European countries are now looking to increase the returns of Gambian migrants. A Working Party on Integration, Migration and Expulsion has already met at the European Council to discuss a draft agreement on returns between the EU and the Gambia.
A key element of return to the Gambia is the role that returnees can play once they are back and how well accepted they will be. Without a thriving labour market such reintegration will be challenging and at worst could lead to conflict among a group of frustrated young men.
<h2>Difficulty of reintegrating economically</h2>
The first challenge for returnees is that their chances of employment once they’re back in The Gambia remains slim. General unemploymentis at 29.8%, and for youth it is estimated to be 38.5%.
Efforts are being made to tackle the root causes of migration by creating jobs. For example, new development projects are being launched in the Gambia including a 13-million-dollar EU Emergency Trust Fund project. This is a good start, but the project has just been launched and will take time to implement. It has also been criticised for a lack of ownership, with the implementing agent, the International Trade Centre, based in Dakar.
A further EU-funded regional re-integration project is also in the pipeline. Initiatives like this are very much in line with the incentives policy contained in the European Partnership Framework.
But is the money being used wisely? Reintegrating also needs to be visible at a societal and political level.
Rumours that government ministers have signed repatriation agreements in return for development funds are rife. Even though the rumours have been consistently denied they point to the fact that economic redevelopment has been heavily politicised.
This doesn’t help individual migrants who still need viable opportunities to reestablish themselves. Otherwise there is little reason not to emigrate again. At worst the frustration of returnees could lead to conflict.
<h2>The potential for conflict</h2>
Large numbers of young men returning without prospects of employment could have security implications for the young democracy. Though voluntary returns will be prioritised, a considerable number of cases are likely to be involuntary.
The potentially explosive levels of frustration already hold true for returnees from Libya. Since March 2017, the International Organisation for Migration has sought to voluntarily return Gambians home from Libya. In August, it identified 1,979 Gambians living in Libya.
By September 2017, 1,119 Gambians had been returned. When a focus group of 15 were questioned in a recent study, they said that they returned because of the gravity of their situation in detention centres in Libya, and to a degree, by the hope that things would be different in the new Gambia.
But the returnees were increasingly frustrated. Firstly, they were angry at returning home empty-handed. When they agreed to return they were under the impression that they would get reintegration funds from the International Organisation for Migration. But only the most vulnerable returnees received any.
And returnees felt abandoned by the new government. Again, they were under the impression that government representatives would welcome them home in person and give them a chance to voice their concerns.
During the focus group, one discussant concluded:
<blockquote>if this happens to continue, then we can do something crazy.</blockquote>
<h2>Slow and well-managed returns</h2>
Despite the political pressure for returns, European countries need to make sure they allow for a slow and well-managed process. This includes skills-training prior to return &#8211; and not just for refugees. This would allow a country like Gambia to create more employment opportunities in order to successfully reintegrate those who come back.
Those who have already returned need to be given a constructive and peaceful outlet for their grievances. Ultimately, to ensure successful repatriation returnees need to be represented politically so that they can have a stake in the future development of their country. In that way, the shame in returning home empty-handed might be easier to deal with. Otherwise, there will only be further (re)migration at a great humanitarian cost.

Returning migrants to The Gambia: the political, social and economic costs

<div style="display: block; position: relative; max-width: 640px;">
<div style="padding-top: 56.25%;"><iframe style="width: 100%; height: 100%; position: absolute; top: 0px; bottom: 0px; right: 0px; left: 0px;" src="//players.brightcove.net/1571595826001/default_default/index.html?videoId=5491338219001" allowfullscreen="" border=0 frameborder=0></iframe></div>
</div>
The recent rescue of 92 abandoned migrants from West Africa in Niger&#8217;s Northern Agadez has brought the migration crisis to the spotlight once more.

Dealing with migration in Africa

Germany&#8217;s Development Minister urges Europe for more support to millions affected by the current drought in Ethiopia
ADDIS ABABA &#8211; With the words of former German President, Horst Kohler, spoken at his inauguration a decade ago used as inspiration, Germany has opened up a new bold and a pioneering engagement with a new plan for Africa.
With this soon to be finalized plan, Chancellor Angela Merkel and her officials are keen to bolster the economies of Africa, create jobs and slow the flow of migrants from the continent to Europe.
Named ‘A Marshall Plan’ for Africa– some are even drawing a direct parallel with the huge U.S. investment program that kick-started the ravaged German economy after World War Two.
Germany’s Minister of Economic Cooperation and Development Germany Gerd Muller said it is an “expression of our will and our optimism that we can truly find a path to peace and development in our cooperation between Europe and Africa”.
German officials are anxious to stop growing numbers of migrants risking their lives crossing the Mediterranean Sea, are pushing for increased public and private investment in Africa.
Minister Muller was on a two-day visit to Ethiopia, where he launched the &#8220;Marshal Plan&#8221; for Africa.
The plan has 10 principles, including a new equal relationship with the continent, the creation of African solutions to Africa&#8217;s problem, job creation for the youth, focus on entrepreneurship instead of aid, the avoidance of exploitation of African resources without real benefit, among others.
&#8220;Human dignity shall be inviolable,” the plan reinstates.
The minister pinpointed the need to invest in the youth and Germany’s commitment to invest and help create employment. He reflected on Ethiopia&#8217;s industrial parks as great examples in this regard.
He hoped the Ethiopian textile industry, with the right combination of investment, will help create the jobs of the future.
&#8220;The textile industry of Ethiopia has 50,000 people working in it today and maybe in five years, 5 million can and will work in the industry,&#8221; he reflected.
During his visit, the minister was accompanied by the president of the Somali region and officials of the UN children agency, UNICEF and the Head of OCHA (Office for the Coordination of Humanitarian Affairs, part of the United Nations Secretariat.
At the end of his visit, he spoke of the need for Europe and the rest of the world to be involved and help in the historic drought that has so far destroyed animals and displaced many people.

migrants

Migration in the Mediterranean: It’s time for the ICC to put European leaders on trial, here’s why

Africa’s new slavery

What’s next for Nigerian returnees from Libya?

Nigerian migrant describes horrifying experience in Libya

Returning migrants to The Gambia: the political, social and economic costs

Dealing with migration in Africa

Germany encourages aid for drought-striken Ethiopia

News Tips

Advertise With Us

migrants

Migration in the Mediterranean: It’s time for the ICC to put European leaders on trial, here’s why

Africa’s new slavery

What’s next for Nigerian returnees from Libya?

Nigerian migrant describes horrifying experience in Libya

Returning migrants to The Gambia: the political, social and economic costs

Dealing with migration in Africa

Germany encourages aid for drought-striken Ethiopia

News Tips

Advertise With Us

Newsletters