European Asylum after the Lampedusa Tragedy

After ships car­rying hun­dreds of refugees sank off the Italian coast re­cently, we must de­mand a change in asylum and im­mig­ra­tion policies or sur­render to the logic of barbarism.

Between Repression and Paternalism: European Asylum and Immigration Policy after the Lampedusa Tragedy
by Javier de Lucas for Critical Legal Thinking
14 December 2013 (original post)

After ships car­rying hun­dreds of refugees sank off the Italian coast re­cently, we must de­mand a change in asylum and im­mig­ra­tion policies or sur­render to the logic of barbarism.

Coffins in the Lampedusa airport hangar
Victims lie in a Lampedusa air­port hangar, October 2013

Crocodile Tears

In the space of just over a week the world watched in as­ton­ish­ment as two ships sank off the Italian coast, giving rise to stag­gering death-​tolls (359 on the 3rd of October, more than 50 on the 11th) and various ex­pres­sions of grief. Among the mourners were those dir­ectly re­spons­ible for asylum and im­mig­ra­tion policy and its legal tools within both Italy and the EU, who trav­elled to the is­land to offer their con­dol­ences and vowed never to forget the hun­dreds of coffins heaped on the shore. However, these in­di­viduals who, on the one hand, pro­mote in­sti­tu­tional xeno­phobia and ra­cism through the con­struc­tion of walls and use of gun­boat sur­veil­lance,1 but have no trouble shed­ding a tear for the dead when the cam­eras are on, rep­resent a hy­po­crisy which has now be­come unbearable.

My first pro­posal is that we do not let ourselves be de­ceived by these cro­codile tears which in­sult both the vic­tims’ dig­nity and our own.2 The real issue is how these deaths re­late to the asylum and im­mig­ra­tion policies of the EU and its member states. We must not ac­cept these re­ac­tions which treat the deaths as if they were the result of nat­ural causes or some cruel twist of fate. The in­creasing ex­as­per­a­tion and out­rage that over­whelm European cit­izens who help­lessly bear wit­ness to these cata­strophes does not arise from a sense of power­less­ness in the face of tragic yet in­ev­it­able “nat­ural” dis­asters. These deaths are rather murders whose per­pet­rators who cannot go un­pun­ished. Our struggle is one of im­pot­ence against impunity.

It is my be­lief that there is a causal link between these mor­tal­ities and the per­sist­ence of a policy based on a fil­tra­tion system (only enough in­di­viduals are al­lowed to enter to sat­isfy the avail­able and re­quired jobs and not a single more, while those who ‘slip through’ are im­me­di­ately thrown out) com­bined with an ob­ses­sion which re­duces in prac­tice all im­mig­ra­tion policy to a ‘struggle against il­legal im­mig­ra­tion’ and ig­nores the real causes of mi­gra­tion. Because these deaths are not the first. We need only con­sider that from 1990 to the present, more than 8,000 corpses have reached the shores and sur­rounding wa­ters of Lampedusa and the most re­li­able sources es­timate the figure to be over 17,000 in the last ten years across Europe.3 Let us not forget that in the ship­wreck of the 3rd of October of 2013, the greatest dis­aster to have hit the shores of Southern Europe, the number of vic­tims rose to 500 men, women (some of whom were preg­nant) and chil­dren, the ma­jority of whom, ex­cept those of Syrian origin, had trav­eled more than 4000km in an at­tempt to flee the poverty brought about by the con­flict in Somali and the to­tal­it­arian re­gime in Eritrea. Paradoxically, the sheer mag­nitude of this tragedy placed the bar too high for sub­sequent ship­wrecks, the first just over a week later, to at­tract media attention.

There will al­ways be a voice of realism re­minding us that the re­spons­ib­ility for these tra­gedies falls not on the EU or the West, but primarily on the re­gimes and coun­tries which force these people to live in misery and hunger, without basic rights or life ex­pect­ancy. However, I re­fuse to ac­cept that our an­swer to this new com­munity of emig­rants from Eritrea, Somalia and Syria, people who live in an Anabasis like that de­scribed by Quirico, is simply ‘Try else­where, we already do more than our bit to sup­port the co­oper­a­tion and de­vel­op­ment pro­gram.’ We cannot ig­nore the shame that falls upon us, we who pride ourselves on the values of the EU; on the guar­antee and de­fense of human rights and demo­cracy yet forget those of others when they turn to us. But how can we de­liver justice? Is there a pos­sible al­tern­ative to cur­rent asylum and im­mig­ra­tion policy? Do we have to change its legal instruments?

Considering the issue in legal terms: one omis­sion and two sophistries

I would like to high­light one ser­ious omis­sion and two mis­ap­pre­hen­sions, or worse soph­is­tries, which in my opinion pose a bar­rier to ac­count­ab­ility on im­mig­ra­tion is­sues. They hamper cur­rent de­bate and, as in Anderson’s par­able, provide a new set of clothes for these naked politi­cians, along with no small number of media sources.

It is this omis­sion that al­lows us to con­tinue split­ting hairs over who is re­spons­ible, whether it is the EU, Italy, Malta, the fish­ermen, or the is­landers who should act. No. It must be made clear that all those who fail to as­sist the vic­tims are crim­inals through their vi­ol­a­tion of the law. If those cit­izens who break the law are deemed crim­inals so too then should those politi­cians be­longing to the EU or its member states who have breached its reg­u­la­tions. And the of­fenses of those who pre­vent or­dinary cit­izens from ad­hering to the law are all the more serious.

This is the real issue. No more talk of hu­manity, piety and solid­arity. We are dealing with a legal of­fense of the first order that de­mands ac­count­ab­ility and ap­pro­priate sanc­tions. This is es­sen­tial if we are to stop the poison of im­punity and pop­ular dis­il­lu­sion­ment spread by this tragedy be­cause nothing can be done and media at­ten­tion shifts as soon as the next dis­aster sur­passes a death-​toll of 350.

It must be made clear that it is a matter of crimin­ality, of of­fences which de­mand pun­ish­ment be­cause non-​assistance to a person in danger at the very least vi­ol­ates a cur­rent legal standard. Indeed, through the re­pressive con­trol ex­erted by Frontex and states such as Italy, Malta and Spain, the EU in its re­ac­tion to these ship­wrecks ap­pears to have re­peatedly for­gotten the legal duty to rescue en­shrined in the oldest laws of the sea, basic common laws which for ex­ample over­rule the Fini-​Bossi law; and today by com­plex treaties of in­ter­na­tional law of the sea such as the 1982 Montego Bay Convention on the Law of the Sea and the SAR and SOLAS Conventions.

The con­tinual dis­regard of these ob­lig­a­tions, which has been largely con­cealed by the tone of the media cov­erage through its em­phasis on the most en­ga­ging ‘hu­man­it­arian’ and ‘tragic’ di­men­sions of the in­cident, is sup­ported by two soph­isms. The first of these is the in­sist­ence on re­fer­ring to ‘the tragedy of im­mig­ra­tion’. No. In large part, the vic­tims of these ship­wrecks are refugees be­cause they are fleeing from failed states, civil wars and con­di­tions which put their human rights at risk, as is the case in Eritrea, Somalia, Syria or Mali. It could soon again be Libya, or ter­ri­fy­ingly even Tunisia or Egypt. And what about Eritrea? We need only read the re­ports pub­lished by The Economist, such as ‘Eritrea and its emig­rants: Why they leave’ on the ar­rival of Eritreans to Lampedusa or those map­ping the polit­ical evol­u­tion of the country such as ‘Eritrea: A State of Siege’ or ‘Eritrea: Robocall re­volu­tion which clearly out­line the reasons com­pel­ling hun­dreds of thou­sands of Eritreans to leave. Many of them fled to non-​European zones such as the 125,000 who trav­eled to Sudan, the 87000 to Ethiopia or the 40,000 to Israel. From this former Italian colony they have also set out for Lampedusa in the hope of es­caping a country which has now trans­formed into a con­cen­tra­tion camp worse than North Korea. Thus refugees, like those ar­riving from Syria, are an in­creas­ingly im­portant contingent.

Whether they are im­mig­rants or refugees is not a trivial dis­tinc­tion. Of course the ser­i­ous­ness of the tragedy changes de­pending on which group is in­volved. However, it is this am­bi­guity which re­veals the fun­da­mental pre­ju­dice upon which im­mig­ra­tion and asylum policies are founded. Indeed, of­fi­cial doc­trine con­siders im­mig­rants to be eco­nom­ic­ally mo­tiv­ated as their move­ments are primarily dic­tated by work reasons. Refugees on the other hand are con­sidered to have been forced to leave their coun­tries as a result of polit­ical per­se­cu­tion. As a result, the EU and the ma­jority of its member states have tried to reg­u­late the entry and so­journ of the former group ac­cording to a cost/​benefit eval­u­ation, fol­lowing what has come to be known as a communicating-​vessels model. According to this system, pre­cisely enough will be al­lowed enter that will sat­isfy the de­mands of the market and prove prof­it­able but not a single more, a per­fect bal­ance must be main­tained. Refugees how­ever are viewed solely as a fin­an­cial burden and policies have in­creas­ingly re­stricted eli­gib­ility for asylum ap­plic­a­tions within the EU. These in­di­viduals are simply not leg­ally able to enter our Paradise. We have made it im­possible for them and their only op­tion is to try and reach the border by whatever means pos­sible. And even those which do ar­rive we do not allow them to show it (lit they are not al­lowed present them­selves as such) they are locked up in camps under in­hu­mane con­di­tions like those seen in Lampedusa and treated as il­legal im­mig­rants that face fines of up to €4000 and expulsion.

In both cases, the EU main­tains con­trol and vi­gil­ance as its highest pri­ority. This is the role of FRONTEX which co­ordin­ates the re­in­force­ment and even re­lo­ca­tion of bor­ders to third coun­tries des­pite their du­bious human rights re­cords such as Morocco and Lybia. As a result, ef­forts are fo­cused on con­trolling il­legal im­mig­ra­tion and its net­works, as well as pre­venting the misuse of asylum pro­ced­ures by those who are ‘just im­mig­rants’. The closure and re­in­force­ment of these bor­ders (Cueta, Melilla, Malta, Sicily and its sur­rounding is­lands or Evros and the is­lands of the Aegean Sea) res­ults in the rise in il­legal jour­neys and changes of route. The ma­jority of refugees today travel an av­erage of 4,000km to reach the same ports where crowds of im­mig­rants pre­pare to make the leap. And a sig­ni­ficant pro­por­tion (al­most 20,000 in the last 10 years ac­cording to the Libération re­port) die in the at­tempt. The twin cata­strophes at Lampedusa are just an­other two examples.

This re­veals the second soph­istry pro­duced by those who sug­gest that the issue is a lack of hu­man­it­ari­anism or al­truism and claim that our ca­pa­city for solid­arity and gen­er­osity is weakened in times of crisis. They in­sist that Europe (Italy and Spain) cannot carry the weight of the world’s misery on its shoulders and that we already do enough. But this is simply un­true. Not only are we guilty of failing to save lives, which is our most fun­da­mental duty, but in the case of refugees we are talking about the vi­ol­a­tion of spe­cific legal ob­lig­a­tions which should carry sig­ni­ficant legal consequences.

We must re­member that the EU and its member states have very real legal ob­lig­a­tions to­wards those seeking asylum and must be held ac­count­able should they fail to fulfill them. These re­spons­ib­il­ities were ori­gin­ally set out in the International Covenant on Civil and Political Rights (see art­icles 5 and 6), such as the prin­ciple of non re­foule­ment, the duty to not re­ject those who re­quest asylum as stated in art­icle 33.1 of the United Nations Convention re­lating to the Status of Refugees from the 28th of July 1951 fol­lowed by the Protocol of the 1st January 1967 which lead to the Advisory Opinion on the Extraterritorial Application of Non-​Refoulement Obligations under the 1951 Convention re­lating to the Status of Refugees and its 1967 Protocol. If any more evid­ence was needed, we may also note that this in­fringe­ment also breaches the pro­vi­sions of art­icle 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the 10th December, 1984.

In the case of the refugees fleeing Eritrea and Somalia, the EU has not even con­sidered the es­tab­lish­ment of hu­man­it­arian cor­ridors or rescue op­er­a­tions in the Mediterranean beyond the Mare Nostrum op­er­a­tion funded by the Letta gov­ern­ment. Similarly, the ques­tion of im­mig­ra­tion routes which cur­rently pass through central Africa and re­cently res­ulted in a hun­dred deaths in the desert of Northern Mali, still goes unanswered.

It is the duty of us, the cit­izens, to de­clare that the states which main­tain these asylum and im­mig­ra­tion policies do not de­serve the title of demo­cracy or even to be con­sidered law-​abiding states as they fail to re­spect the basic human rights which are the very core of the law. As they have rat­i­fied and in­cor­por­ated the in­ter­na­tional con­ven­tions on refugees and on the laws of the sea into do­mestic law, their vi­ol­a­tion of their own laws is a crime for which they must be held ac­count­able. If these il­legal acts are to be stopped we must de­mand a change in asylum and im­mig­ra­tion policies and ac­cord­ingly as­sess the agendas pro­posed at the next European elec­tions. Otherwise we are sur­ren­dering to a logic of bar­barism, and we will be the savages.

Javier de Lucas is Pro­fessor of Philo­sophy of Law and Polit­ical Philo­sophy at the Human Rights Insti­tute, Uni­ver­sity of Valencia.

Translated by Lucy O’Sullivan

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