PDF Summary:My Fourth Time, We Drowned, by Sally Hayden

In My Fourth Time, We Drowned, Sally Hayden exposes the plight of African refugees and migrants trapped in Libya. She documents the systematic abuse, extortion, and torture by traffickers holding refugees hostage for ransom. Hayden reveals the inhumane conditions in Libyan detention centers, where disease runs rampant and indefinite detention takes a heavy psychological toll.

The author criticizes the European Union's migration policies that empower Libyan militias, enrich human smugglers, and condemn migrants to abuse. She explores legal efforts to hold the EU and traffickers accountable for these crimes against humanity while highlighting the challenges of dismantling a globalized human trafficking system.

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The IOM's Role in Repatriating Migrants

Hayden explores the complex and often controversial role of the IOM in facilitating the return of migrants from Libya to their countries of origin. She critiques the "voluntary" nature of the Europe Union-funded program, highlighting the pressures that make returning a seemingly inevitable choice, and the challenges faced by returnees upon arrival.

Concerns Over Voluntariness of EU Return Program

Hayden challenges the portrayal of IOM's EU-funded repatriation program as "voluntary," arguing that the dire conditions within Libyan detention centers, lack of other legal pathways to secure safety, and the agency's own "managing of expectations" effectively coerce migrants into returning home. She highlights how detainees face a limited and often deceptive binary choice: either accept repatriation or remain indefinitely incarcerated, with minimal access to aid and continual threats of further abuse.

The author also points to the pressure put on migrants by families who are already heavily indebted from paying ransoms and may now see returning as the only chance to cut off the financial drain and alleviate worries over their loved one's safety. This confluence of factors makes the choice to return anything but truly voluntary.

Other Perspectives

• The program could be seen as a response to a complex humanitarian crisis, offering a practical solution for those who wish to return to their home countries but lack the means to do so.
• The presence of international observers or human rights organizations during the decision-making process could provide a level of oversight that ensures the voluntariness of the migrants' decisions.
• The effectiveness and accessibility of other legal pathways may vary greatly, and their existence alone does not diminish the agency of individuals to make a voluntary choice based on the options they perceive as most realistic or beneficial.
• The use of the term "coercion" may be too strong if the IOM's actions are within legal and ethical guidelines designed to help migrants make the best possible decision for their circumstances.
• Migrants may choose to return due to factors unrelated to pressure, such as a desire to reunite with family or to restart their lives in their home countries.
• The concept of pressure is subjective and can vary greatly from one family to another, with some families possibly providing support and counsel rather than exerting pressure.

Returnee Challenges: Stigma, Unemployment, Insufficient Support

Hayden documents the significant challenges faced by returnees upon arrival back in their home countries, with many facing stigma, unemployment, a lack of support from both IOM and their own governments, and even the risk of further persecution. She points to the limited nature of IOM's reintegration assistance, with many returnees receiving only a small amount of cash and minimal training or support. This leaves them to grapple with existing hardships, intensified by the debt they incurred for their failed trips and the disappointment of their communities.

The author argues that the EU, by focusing on returning migrants to their countries of origin rather than addressing the root causes of migration and creating safe and legal pathways to Europe, is neglecting its shared responsibility for the wellbeing of those forced to migrate in the first place.

Context

• Many returnees incur significant debt to fund their migration journeys. Upon return, they face pressure to repay these debts without sufficient income.
• There may be a lack of coherent policies or programs specifically designed to address the needs of returnees, leaving them without a clear path to reintegration.
• Some governments may view returnees with suspicion, monitoring them for potential dissent or involvement in opposition activities.
• The International Organization for Migration (IOM) is an intergovernmental organization that provides services and advice concerning migration to governments and migrants, including displaced persons, refugees, and migrant workers.
• Creating safe and legal pathways means establishing processes that allow migrants to apply for asylum or work visas without resorting to dangerous journeys. This could involve expanding resettlement programs or creating humanitarian visas.

Effectiveness and Ethics of the Voluntary Repatriation Program

Hayden critically examines the effectiveness and ethics of the IOM's program for voluntary return, arguing that its reliance on deceptively representing repatriation for desperate detainees as a "lifeline" and its questionable results make the program deeply flawed. Although the EU touts the program as a successful solution for many migrants, she points out that many returnees have subsequently embarked on a second journey, demonstrating that the program does not address their underlying motivations or improve their situations.

The author argues that the voluntary return program serves primarily to sanitize the EU's conscience and maintain a facade of humanitarian assistance while perpetuating a system that condemns those migrating to further hardship and exploitation.

Other Perspectives

• The program's representation as a "lifeline" might reflect the positive experiences of some returnees, whose stories could provide a different perspective on the program's impact and effectiveness.
• The term "deeply flawed" may be too harsh if there are aspects of the program that work well, which could be built upon to enhance overall effectiveness.
• The program might be designed to address immediate humanitarian concerns rather than solve systemic issues, and expecting it to address underlying motivations might be beyond its intended scope.
• The EU could be constrained by political and practical considerations that limit the scope of what can be achieved through the program.
• The program might be the most pragmatic option available given political and social constraints, and could be part of a compromise between different policy approaches.

The Challenges of Inter-Agency Coordination and Cooperation

This section explores the complexities of inter-agency coordination and cooperation in responding to the Libyan migrant emergency, highlighting the challenges faced by organizations operating within a volatile environment and the tensions that arise between humanitarian agendas and states' competing political-economic interests.

Challenges of Functioning in the Volatile Libyan Environment

Hayden points to the numerous challenges faced by organizations that provide humanitarian aid operating within Libya's volatile and unpredictable environment, including the ever-present risk of violence, shifting power dynamics between militias, and the precarious nature of accessing detention centers located within conflict zones or controlled by armed groups. Operating under these conditions requires constant assessment of risks, negotiations with unpredictable actors, and the difficult choice of speaking against rights violations, risking loss of access, or remaining cautiously silent to potentially provide at least some level of assistance.

The author also highlights the dependence of numerous humanitarian organizations on EU funding, creating a difficult dynamic where criticizing policies that directly contribute to humanitarian suffering could jeopardize vital resources.

Context

• Aid organizations must navigate complex legal and ethical issues, such as whether to engage with groups accused of human rights violations to deliver aid, balancing immediate needs against long-term principles.
• Libya has been in a state of conflict since the fall of Muammar Gaddafi in 2011, leading to a fragmented political landscape with multiple factions vying for control, making it difficult for aid organizations to navigate alliances and power structures.

Other Perspectives

• The dichotomy presented may be false; organizations might not have to choose strictly between speaking out and remaining silent, but can instead find a balanced approach that allows for both advocacy and continued assistance.
• The EU, as a major humanitarian aid donor, may also be receptive to feedback and willing to adjust policies based on evidence and advocacy from humanitarian organizations, suggesting that criticism can lead to positive change rather than just risking funding.

Tensions Between Protecting Refugees and States' Political-Economic Interests

Hayden emphasizes the crucial tension between humanitarian organizations' stated goal of protecting displaced people and the competing political and economic interests of states involved in crafting and implementing policies on migration. She points to UNHCR and IOM's entanglement in the EU's agenda to deter migration at any cost, arguing that their participation in programs like the Libyan coastguard training and funding, and the voluntary return program, compromises their mandate to advocate for the rights and wellbeing of refugees.

The author reveals how the presence of United Nations entities in Libya, while doing some essential aid work and evacuating a limited number of refugees, has also served to legitimize EU efforts to keep migrants away from European shores, despite evidence of widespread abuse and neglect.

Other Perspectives

• There is a possibility that the involvement of humanitarian organizations in state-led initiatives is a strategic move to mitigate potential harm and improve conditions within the constraints imposed by states' policies, rather than a compromise of their mandate.
• Some might argue that the voluntary return program is in line with the principle of voluntariness in repatriation, which is a recognized solution for refugees and is part of UNHCR's mandate.
• The collaboration with the Libyan coastguard might be a pragmatic response to the complex geopolitical realities, where complete adherence to ideal humanitarian principles is not feasible, and some compromise is necessary to make any positive impact on the ground.
• The UN's role in evacuating refugees from Libya could be seen as a direct response to an urgent humanitarian crisis, where the priority is the protection of individuals at immediate risk, rather than a political statement on migration control policies.

EU Migration Policies: Criminalization of Aid and Empowerment of Abusive Actors

This section delves into how EU migration policies affect vulnerable refugees and migrants, specifically its support for Libya's coastguard, the criminalization of aid, the rise of anti-immigration sentiment, and the empowerment of abusive actors within Libya.

The Consequences of EU Migration Policies

Hayden documents the devastating, intended consequences of EU migration policies, which prioritize deterring arrivals and preventing migration over upholding human rights, resulting in widespread suffering, a dramatic rise in drownings on the Mediterranean Sea, and the erosion of the fundamental right to seek asylum.

EU Support's Impact on Libyan Coastguard Interception and Refugee Returnees to Libya

Hayden argues that European Union financial, material, and logistical assistance to Libya's coastguard has created a deadly cycle of interception, forced return, and indefinite detention for refugees and migrants attempting to cross the Mediterranean. By outsourcing border control functions to a country notorious for violating human rights, the EU has effectively externalized its responsibility for people seeking asylum while simultaneously circumventing international law that prohibits pushing people back to locations that put them at risk.

The author details how this support, including training, equipment, and real-time intelligence provided by European agencies like Frontex, has enabled Libya's coastguard to seize thousands of vessels, often using violent tactics, before returning those on board to Libyan detention facilities where they are routinely subjected to torture, extortion, and forced labor. This cycle has resulted in a dramatic increase in drownings, compounding the suffering of people seeking asylum while empowering those responsible for abusing them.

Context

• The principle of non-refoulement is a cornerstone of international refugee law, prohibiting the return of individuals to a country where they may face persecution or serious harm. By supporting Libya, the EU is criticized for potentially violating this principle.
• The increased interception efforts have forced migrants to take more dangerous routes across the Mediterranean, contributing to higher mortality rates.
• This involves the use of satellite imagery, drones, and other surveillance technologies to monitor migrant movements in the Mediterranean. The intelligence is shared with Libyan authorities to intercept boats before they reach European waters.
• The focus on interception rather than rescue can delay humanitarian efforts, reducing the chances of timely assistance for boats in distress.

Rise of Anti-Immigrant Sentiment and Influence of Right-Wing Extremists in European Countries

Hayden describes the surge in anti-immigration sentiment as well as the rise of far-right political movements across Europe following the so-called "migrant crisis" of 2015 and 2016, with millions of refugees fleeing wars and persecution seeking safety on the continent. Fueled by a rhetoric of fear and scapegoating, these movements capitalize on anxieties around national identity, security, and resource scarcity, portraying people fleeing war and persecution as a danger to European societies and successfully influencing political agendas.

The author highlights the successes of ultra-conservative factions, the normalization of xenophobic rhetoric and practices, and the increasing adoption of their narratives within mainstream political discourse. This has resulted in shifting public opinion, a hardening of policies around migration, and a reduction in European willingness to take responsibility for those seeking international protection.

Context

• Shifts in demographics, such as aging populations in Europe, can lead to debates about immigration as a solution to labor shortages, which can be contentious.
• The European Union struggled to formulate a unified response, leading to tensions between countries advocating for open borders and those pushing for stricter controls.
• Initial responses varied, with some countries like Germany adopting open-door policies, while others erected barriers and tightened border controls.
• The use of scapegoating in times of economic or social stress is not new. Historically, minority groups have been blamed for broader societal issues, a tactic that far-right movements continue to use.
• Portraying refugees as a threat can be a strategic move to gain political support by appealing to nationalist sentiments and promising to protect the nation from perceived external threats.
• They have organized and led public demonstrations that draw attention to their causes, further amplifying their visibility and impact.
• Normalization of xenophobia can lead to increased discrimination, social exclusion, and violence against immigrant communities, affecting their integration and well-being.
• Economic downturns or high unemployment rates can exacerbate fears about immigration, as people may perceive immigrants as competition for jobs and resources, making far-right narratives more attractive.
• The rise of social media has allowed for the rapid spread of misinformation and fear-mongering about migrants, which can influence public opinion and reinforce negative stereotypes.
• Policies have been introduced to restrict the ability of refugees to bring family members to join them, impacting family unity.
• Populist leaders often use anti-immigrant rhetoric to gain support, influencing mainstream parties to adopt stricter immigration policies to retain voters.

Rise in Mediterranean Sea Drownings and Crossing Dangers

Hayden documents the dramatic increase in deaths of people making the journey across the Mediterranean, highlighting the consequences of the EU's decision to prioritize deterring migration over saving lives. By withdrawing its own search and rescue operations and shifting the responsibility to Libya's coastguard, the EU has condemned thousands of people to a brutal fate, with many drowning or dying due to the increasingly dangerous nature of these journeys.

The author notes that the EU’s decision to support the destruction of migrant boats that the Libyan coastguard intercepted led to smugglers using cheaper, flimsier vessels, exacerbating the risks and leading to even more fatalities.

Context

• Many of those attempting the crossing are fleeing conflict, persecution, or extreme poverty in countries across Africa and the Middle East, making the journey out of desperation.
• The Mediterranean Sea can be treacherous, with unpredictable weather and strong currents, making the journey perilous, especially in inadequate vessels.

Other Perspectives

• The EU's support for the destruction of migrant boats may be part of a broader strategy to combat human trafficking and smuggling networks, which exploit vulnerable populations and put lives at risk.
• The use of cheaper, flimsier vessels by smugglers may not be solely attributed to the destruction of boats; economic factors or availability of materials could also influence the quality of vessels used.

The Criminalization of Refugee Aid Efforts

This section addresses the alarming trend of increasingly criminalized individuals and organizations trying to provide humanitarian help to those migrating and seeking refuge in the ocean and on European borders.

Legal Challenges and Investigations Concerning Aid Organizations and Voluntary Workers

Hayden documents the growing criminalization of humanitarian efforts to aid people seeking refuge or migration, highlighting how governments are increasingly targeting volunteers, NGOs, and rescue groups through legal challenges and investigations, with the accusation being that they are complicit in smuggling or encouraging migration. She cites prominent cases involving rescue ships like the Iuventa and the Sea-Watch, and the arrest of individuals who have offered transport, shelter, or food to those in need.

The author emphasizes that these efforts, largely driven by anti-immigration sentiment and far-right political influence, create a hostile environment for those who provide humanitarian aid and deter organisations from engaging in essential life-saving operations.

Context

• Specific legal cases, such as those involving the Iuventa and Sea-Watch, set precedents that can influence future legal interpretations and actions against humanitarian groups.
• Media narratives can shape public opinion by framing humanitarian efforts as part of a larger problem of illegal immigration, influencing governments to take legal action against aid organizations.
• The threat of legal action can deter individuals and organizations from engaging in rescue operations or providing aid, potentially leading to increased suffering and loss of life among migrants.
• Far-right influence can affect international cooperation on migration, with some countries withdrawing from or renegotiating international agreements that protect refugees and migrants.
• Constant legal scrutiny creates an unpredictable environment, making it challenging for organizations to plan and execute missions effectively.

NGOs Labeled a "Transport System" and "Pull Factor" for Refugees

Hayden reveals how the EU and its member states have deliberately manipulated public discourse around refugee rescue efforts, painting NGOs as a "pull factor" and likening them to chauffeurs for smugglers. This rhetoric, designed to undermine the legitimacy of humanitarian efforts and justify the criminalization of aid, falsely suggests that rescuing migrants at sea encourages further migration, ignoring the root causes and realities of why people are forced to embark on these perilous journeys.

The author exposes how this narrative serves the EU's agenda of deterring migration at all costs, deflecting responsibility from their policies that drive suffering, and contributing to an absence of accountability for those perpetrating acts of harm on migrants and refugees.

Other Perspectives

• Officials from the EU might assert that their communication strategies are designed to inform the public about the difficult realities of migration and the limitations of what can be done to help, rather than to deliberately manipulate public opinion.
• NGOs operate under the principle of humanitarian assistance, which is to provide aid to those in distress without discrimination and irrespective of the circumstances that led to their situation.
• Some argue that a clear distinction should be made between providing humanitarian aid and facilitating migration, which could lead to a debate on where to draw the line between the two.
• It is possible that the criminalization of certain types of aid is aimed at ensuring that assistance is provided in a way that aligns with the receiving countries' immigration policies and capacity to integrate new arrivals.
• Data could be analyzed to determine if there is a correlation between the presence of NGO rescue operations and the number of attempted sea crossings, which might suggest an unintended consequence of these humanitarian efforts.
• Highlighting the role of NGOs could be an attempt to address one aspect of the complex migration issue without necessarily denying the existence of underlying causes.
• While it is crucial to understand the root causes of migration, it is also important to consider the full spectrum of factors that influence an individual's decision to migrate, including the perceived availability of rescue services.
• Some might contend that the responsibility for suffering lies with the countries of origin, due to conflict, economic instability, or human rights abuses that force people to flee.
• The EU has supported and funded reception and integration programs for refugees, indicating a commitment to accountability for their well-being.

NGOs' Ability to Operate and Protect People

Hayden emphasizes how the EU's efforts to criminalize refugee search and rescue, alongside the expansion of legal and operational constraints faced by NGOs operating in the Mediterranean, greatly hinder their life-saving work and contribute to the tragically high death toll on the world's most lethal migration route. She notes how NGOs face constant scrutiny, bureaucratic hurdles, legal difficulties, and even physical threats, which can result in ships being impounded, missions being stalled or canceled, and volunteers facing prosecution, financial penalties, or jail time.

The author argues that these efforts, driven by a political agenda to deter migration and appease anti-immigrant voters, ultimately prioritize a false image of border security over the fundamental right to seek asylum and the imperative to save lives.

Other Perspectives

• Stricter regulations could be intended to prevent abuse of the system by traffickers who might exploit NGO operations to facilitate illegal entry into the EU.
• Legal and operational constraints may be in place to ensure that search and rescue operations are conducted safely and in accordance with international laws, which could potentially reduce the risk of accidents and fatalities.
• The impounding of ships and prosecution of volunteers might occur due to specific legal violations rather than as a systematic approach to deter NGO activities.
• The legal difficulties faced by volunteers could sometimes stem from a lack of understanding or adherence to maritime laws, which are in place to ensure safety and order at sea.
• Some argue that open or poorly regulated borders can lead to social and economic challenges, including strain on public services and increased competition for jobs, which governments have a duty to manage.

The Empowerment of Abusive Actors Within Libya

This section examines the unintended consequences of the EU's migration policies, arguing that they contribute to the empowerment of abusive actors, such as smugglers, people traffickers, and paramilitary groups, within Libya, exacerbate human rights abuses, and undermine any efforts to create a more stable and humane environment.

EU Financing Libyan Groups Committing Rights Violations

Hayden exposes how EU funding and support have been directed towards Libyan entities with clear ties to human trafficking, smuggling, and mistreatment of asylum seekers and migrants, despite numerous reports documenting these crimes. She points to instances where European funds intended to strengthen border management in Libya have ended up enriching militias, those implicated in violence and extortion, or facilitating the transfer of detainees from official detention centers back into the hands of smugglers.

The author presents a critical analysis of the EU's efforts to legitimize their collaboration with these actors, arguing that they prioritize deterring migration over upholding human rights and contribute to a climate of impunity for those exploiting vulnerable individuals.

Context

• Investigative journalism by outlets such as The Guardian and BBC has uncovered evidence of collusion between Libyan coastguards and human traffickers, often funded indirectly by international aid.

Other Perspectives

• The EU's collaboration with local entities is necessary for practical reasons, as they are the actors on the ground, and the EU is working to improve these partnerships rather than abandon them, which could lead to even worse outcomes for migrants.

Criminal Acts Against Refugees Go Unpunished in Libya

Hayden highlights the persistent impunity for crimes against people fleeing their homes who are in Libya, where smugglers, traffickers, militias, and even those within government-associated detention centers, operate with little fear of legal repercussions. This lack of accountability is due to a combination of factors, including a dysfunctional justice system, ongoing political instability, and a culture of normalized abuse fueled by the EU’s focus on preventing migration above all else.

The author criticizes United Nations agencies and global entities for failing to hold perpetrators accountable or ensure that victims have access to justice. She points to how their own entanglement with states’ political agendas often prevents them from pursuing meaningful investigations or applying real pressure to enforce rights obligations. This has resulted in a situation where those responsible for the most egregious offenses toward migrants and refugees continue to operate with impunity, their business model seemingly validated by European inaction.

Context

• Global powers and international organizations often prioritize diplomatic relations and strategic interests over human rights advocacy, leading to a lack of pressure on Libyan authorities to reform their practices and protect vulnerable populations.
• Significant EU resources are allocated to border control and surveillance technologies, which may detract from investments in humanitarian aid or legal pathways for asylum seekers, potentially exacerbating the plight of those stranded in transit countries.
• Many global entities face financial and resource constraints, which can hinder their ability to conduct thorough investigations or provide adequate support to victims.

Eu's Role in Libya's Human Rights Crisis

Hayden argues that the EU's focus on deterring migration at all costs, combined with their collaboration with Libyan authorities complicit in the systematic abuse of migrants and refugees, makes them complicit in perpetuating a profound human rights crisis. By funding and supporting practices like the Libyan maritime interceptions, despite ample evidence of subsequent torture, enslavement, extortion, and even extrajudicial killings, the EU prioritizes preventing arrivals on European shores over taking responsibility for safeguarding the rights of those in need of international protection.

The author reveals how this approach not only enables abuses within Libya, but also undermines efforts to create a more stable and accountable environment. She concludes that the EU must acknowledge its complicity in the suffering of displaced people and radically rethink its migration policies to prioritize human rights and accountability over an agenda of deterrence and containment.

Other Perspectives

• Some might contend that the EU is working within a complex international legal framework and that its actions are a balance between humanitarian concerns and legal obligations to control borders.

Holding Smugglers and the European Union Accountable for Rights Violations Against Refugees and Migrants

This section examines the various efforts being taken to hold both the EU and human smugglers accountable for the human rights abuses and crimes committed against refugees and migrants in the context of the EU's attempts to keep them away from European soil.

Legal Challenges Targeting the European Union

This section addresses the significance, challenges, and limitations of legal cases and complaints aiming to make the EU accountable.

Hirsi Case: European Court Ruling on Illegal Refugee Returns to Libya

Hayden uses the 2012 European Court of Human Rights ruling on the "Hirsi" case as a landmark example of successful legal action that challenged the EU's policy of directly sending refugees back to Libya. The Court ruled that Italy, as a representative of the EU, violated international law by returning people to a nation in which they face a real risk of serious human rights violations, and this practice was therefore prohibited. This decision exposed a key flaw in the EU's efforts to externalize its responsibility for people seeking asylum. However, the EU found a loophole by shifting this function onto Libya's coastguard.

Context

• The Hirsi Jamaa and Others v. Italy case involved 24 Somali and Eritrean migrants who were intercepted at sea by Italian authorities and returned to Libya without being given a chance to apply for asylum or protection. This case highlighted the practice of "pushbacks," where migrants are forcibly returned without due process.
• The ruling underscored that Italy, by acting on behalf of the EU, was accountable for ensuring that its actions did not lead to human rights violations, even when operations occurred outside its territory.

S.S. V. Italy: Italy's Responsibility for Intercepted Refugees

Hayden documents the case of "S.S. et al. v. Italy" as another important legal effort to challenge the EU's migration policies and its support for the Libyan coastguard. This case, brought before the European Human Rights Court and spearheaded by the Global Legal Action Network (GLAN), attempts to establish Italy's responsibility for the fate of refugees intercepted through the Libyan coastguard, arguing that European Union financial, logistical, and operational support makes Italy complicit in the systematic abuse that follows. The author highlights the importance of this case, explaining how a successful verdict could force EU countries to rethink their collaboration with Libya and their responsibility for those trapped within a brutal and inhumane system of detention.

Context

• GLAN is an organization that uses legal strategies to address transnational human rights abuses. It often collaborates with other NGOs and legal experts to bring cases to international courts.

Other Perspectives

• Italy may argue that its cooperation with the Libyan coastguard is a necessary measure to manage the flow of migrants and prevent human trafficking.
• There may be an argument that the case could undermine the sovereignty of Libya by challenging its right to manage its own borders and intercept individuals attempting to leave the country illegally.
• The verdict could be interpreted in a narrow legal sense, allowing EU countries to make minimal adjustments to their policies without fundamentally changing their approach to collaboration with Libya.
• There could be a legal distinction between providing support to a coastguard and being responsible for that coastguard's subsequent actions, which may limit the direct responsibility of EU countries.

Complaint to EU Auditors on Misuse of Funds in Libya

Hayden details GLAN's complaint to the European Court of Auditors, which aims to expose the EU's misuse of funds earmarked for managing migration-related issues in Libya. The complaint alleges that EU funds have been poorly handled and even used to support activities that violate human rights, such as operating facilities notorious for widespread torture, extortion, and labor under coercion. The author explains how this legal challenge seeks to not only highlight the EU's complicity in these abuses, but also to force greater transparency and accountability over how its funds are being spent, arguing that financial pressure could be a powerful tool in forcing the EU to confront its responsibility for those affected in Libya.

Context

• The European Court of Auditors is responsible for auditing the finances of the European Union, ensuring that EU funds are properly accounted for and spent in accordance with legal and financial regulations.
• By targeting the financial aspects of EU policies, GLAN aims to leverage economic accountability as a means to drive policy change, suggesting that financial scrutiny can be an effective tool for enforcing human rights standards.

Other Perspectives

• The legal challenge could potentially overlook the efforts and measures the EU has implemented to address and mitigate the risk of human rights abuses in its funding programs.
• Imposing financial pressure could have unintended consequences that may worsen the situation for those affected in Libya, such as reducing the overall funds available for humanitarian aid.

Presentations to the ICC

This section delves into the legal submissions made to the ICC seeking to hold EU institutions and personnel accountable for atrocities and highlight the challenges of prosecuting institutions in international law.

Accusing EU of Atrocities for Role in Libya's Refugee Crisis

Hayden recounts how lawyers Juan Branco and Omer Shatz made a comprehensive filing with the ICC in 2019, accusing the EU of committing crimes against humanity through its migration policies. The submission argues that the EU’s deliberate effort to deter migration and prevent refugees from reaching Europe, manifested in their collaboration with the Libyan maritime security forces and their support for detention centers rife with abuse, constitutes a "policy of forced transfer to detention facilities where crimes are committed."

The author highlights how this landmark submission argues that EU policies have resulted in a systematic and inhumane attack against migrants and asylum seekers, exposing them to a vast array of crimes, including torture, enslavement, rape, and murder.

Context

• These lawyers are known for their work in international law and human rights. Their involvement in the submission indicates a legal strategy to hold powerful entities accountable for policies that may violate international law.
• This term refers to certain acts that are deliberately committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, and can include acts like murder, enslavement, and torture.
• The ICC is an international tribunal that prosecutes individuals for crimes such as genocide, war crimes, and crimes against humanity. The filing mentioned in the text seeks to hold the EU accountable under these legal frameworks.

Global Criminal Law Views Migrants as a Persecuted Group

Hayden explains how the proposal submitted to the ICC by Shatz and Branco challenges traditional interpretations of crimes against humanity by arguing that migrants, despite their diverse backgrounds and nationalities, should be considered a persecuted group under international law. The lawyers argue that the EU's deliberate targeting of migrants, manifested in the refusal to conduct rescue operations, the funding of Libyan authorities who routinely abuse migrants, and the dehumanizing rhetoric used to justify these policies, constitutes a systematic attack against a specific group, meeting the criteria for crimes against humanity.

The author highlights how this reinterpretation of persecution holds implications beyond the immediate circumstances in Libya, potentially laying the groundwork for future prosecutions of states and institutions that deliberately target and mistreat migrants based on their migratory status.

Other Perspectives

• The proposal may face practical challenges in enforcement, as states may be reluctant to support a precedent that could subject them to international legal scrutiny for their migration policies, which are often considered a matter of national sovereignty.
• Dehumanizing rhetoric is not an official policy and may not reflect the views of the EU as a whole, but rather the opinions of individual politicians or groups.
• The definition of a "specific group" under international law traditionally requires characteristics such as ethnicity, nationality, religion, or other similar identifiers, and it may be argued that migrants as a collective do not inherently share such characteristics.
• The principle of complementarity in the International Criminal Court (ICC) dictates that the court can only prosecute when national jurisdictions are unwilling or unable to do so, meaning that states could potentially avoid prosecution by demonstrating their own efforts to address any mistreatment of migrants.

The Challenges Of Prosecuting Institutions Versus Individuals

Hayden discusses the significant legal challenges of attempting to prosecute institutions like the European Union using international laws against criminal activity, which traditionally focus on holding individuals accountable for crimes. She explains how a primary argument against the ICC submission by Shatz and Branco is that it fails to explicitly name specific individuals within the EU who are responsible for these crimes. She also highlights the political complexities of the ICC attempting to prosecute such a powerful entity, noting how doing so might have severe repercussions on international relationships and potentially undermine the Court's legitimacy in the eyes of state members.

The author explores how these procedural and political challenges highlight the constraints of existing international legal mechanisms in addressing systemic crimes, illustrating the difficulty of holding states and institutions accountable for policies that have a devastating effect on people.

Context

• Institutions, such as governments or organizations, are complex entities with diffuse decision-making processes, making it difficult to pinpoint individual culpability within a collective body.
• Naming individuals within powerful entities like the EU could lead to diplomatic tensions, as these individuals often hold significant political influence and are backed by their respective governments.
• There is a risk that prosecuting a powerful entity could be perceived as politically motivated, which might lead to accusations of bias and impact the ICC's perceived impartiality and credibility.
• The EU is a significant economic bloc, and legal actions against it could disrupt markets, affect trade agreements, and lead to economic instability both within Europe and globally.
• International courts often lack the enforcement power to compel states or institutions to comply with rulings, relying instead on the cooperation of member states.
• Demonstrating a direct link between a state’s policy and its devastating effects can be complex, requiring extensive evidence and often facing political resistance.

Attempts to Make Human Smugglers Accountable

This section examines attempts to hold prominent smugglers accountable for their actions while analyzing the difficulties and limitations of domestic prosecutions in a globalized system.

The Importance of the Trials of Kidane and Welid in Ethiopia

Hayden examines the importance of the 2020 trials of Kidane Zekarias Habtemariam and Tewelde Goitom (Welid) in Ethiopia, highlighting the rarely acknowledged attempts to hold high-profile smugglers accountable. She recounts how both smugglers, notorious for their brutality and exploitation of African migrants, were captured and extradited to Ethiopia, where they faced charges related to smuggling and abuse.

Despite the significance of these cases, the author laments the limited scope of the prosecutions, focusing on only a handful of victims, and the lack of interest from international organizations and the media, illustrating how even when perpetrators are apprehended and put on trial, the complexities of the global smuggling industry and the dispersed nature of their operations and victims make it difficult to achieve comprehensive accountability.

Context

• Kidane Zekarias Habtemariam and Tewelde Goitom (Welid) were part of extensive human smuggling networks that operated across multiple countries, exploiting migrants seeking to reach Europe through perilous routes.
• Gathering evidence and testimonies from victims is crucial but challenging, as many are dispersed, in hiding, or fearful of retribution.
• Ethiopia's role in these trials is significant given its geographical position as a transit country for many migrants from the Horn of Africa, making it a focal point in regional anti-smuggling efforts.
• The charges were based on international and national laws against human trafficking and smuggling, which aim to protect the rights and safety of migrants.
• Existing legal frameworks may not be fully equipped to handle the complexities of smuggling cases, often resulting in prosecutions that address only the most clear-cut instances of abuse.
• Media outlets may prioritize stories that are more sensational or have immediate visual impact, leading to less coverage of complex legal proceedings or systemic issues like smuggling trials.

Challenges of Collecting Proof and Ensuring Witness Participation

Hayden highlights the considerable challenges faced by Ethiopian prosecutors in collecting proof and ensuring witness participation in the Kidane and Welid trials. She describes how the transnational nature of the smugglers’ operations, the dispersal of victims across Africa and Europe, and the ongoing fears of retaliation from the smugglers’ associates all present significant obstacles to a thorough investigation and a successful prosecution. She notes the complications of remote testifying being unavailable, a limitation cutting off essential voices.

The author points to how these issues demonstrate the drawbacks of trying high-profile smugglers in one country, arguing that a more coordinated and robust international effort is needed to effectively tackle human trafficking and smuggling networks.

Context

• Witnesses in such cases may fear for their safety due to potential retaliation from organized crime groups, which can deter them from participating in legal proceedings.
• The trauma experienced by victims can affect their ability to recall events accurately or their willingness to relive experiences through testimony.
• In some communities, there may be cultural or social pressures that discourage individuals from cooperating with authorities, especially if smugglers are seen as benefactors or protectors.
• Establishing the identity of a remote witness can be difficult, raising concerns about the authenticity of the testimony.
• Gathering evidence from multiple countries can be difficult due to differences in legal procedures, privacy laws, and the availability of technology for secure communication and data sharing.
• International cooperation can facilitate training programs for law enforcement and judicial officials, enhancing their ability to handle complex trafficking cases effectively.

Domestic Prosecution Limits and Gaps in Global Cooperation

Hayden illustrates how the Kidane and Welid trials expose the limits of domestic prosecution within a globalized human trafficking system, where cooperation between states can be fraught with political agendas and procedural hurdles. Despite international condemnation of their crimes and possible European demands for extradition, Ethiopia opted to try the traffickers domestically, while facing accusations of corruption and deliberately weakening their case. Moreover, they declined to cooperate with Italian authorities due to concerns that the convicts might face capital punishment.

The author emphasizes how these challenges illustrate the need for a more effective international framework for prosecuting people smugglers and human traffickers, arguing that a stronger commitment to sharing information, coordinating investigations, and facilitating witness participation is crucial to dismantling these networks and holding those responsible for crimes against refugees and migrants accountable.

Context

• Concerns about the treatment of suspects and the fairness of trials in other countries can prevent cooperation, especially if there are fears of human rights violations.
• Countries often choose to prosecute crimes domestically to maintain legal sovereignty and demonstrate their judicial capabilities, even when international pressure exists.
• Corruption can manifest in various forms, such as bribery, manipulation of evidence, or interference in the judicial process, which can undermine the integrity of legal proceedings and lead to unjust outcomes.
• Ethiopia has retained the death penalty, although it is rarely carried out. The country's reluctance to extradite could stem from a desire to maintain control over legal proceedings and outcomes.
• Effective international cooperation requires strong political will and commitment from all countries involved, which can be influenced by diplomatic relations and other geopolitical factors.
• Holding traffickers accountable serves as a deterrent, potentially reducing the incidence of trafficking by increasing the risks for perpetrators.