PERMANENT PEOPLES’ TRIBUNAL

Spanish Italian

 

Founder: LELIO BASSO (ITALY)

 

President:

PHILIPPE TEXIER (FRANCE)

Vice-presidents:

LUIZA ERUNDINA DE SOUSA (BRAZIL)

JAVIER GIRALDO MORENO (COLOMBIA)

HELEN JARVIS (AUSTRALIA)

NELLO ROSSI (ITALY)

Secretary General:

GIANNI TOGNONI (ITALY)

 

Final Document on the sessions

on the violation of human rights of migrants and refugee people

Brussels – European Parliament, 9thApril 2019

 

 

 

 

General Secretariat:

VIA DELLA DOGANA VECCHIA 5 – 00186 ROME – TEL:0039 066877774
E-mail:ppt@permanentpeoplestribunal.org
www.permanentpeoplestribunal.org

  1. The framework

The substance of the indictment submitted by a very broad network of movements and organisations, working for many years at the European level in diverse areas concerning migration, to the Permanent Peoples’ Tribunal (PPT), requesting it to promote judicial sessions according to the PPT Statute, may be summarised as follows:

  1. a) The refugee and migrant people are victims of the most heinous and systematic violations of their fundamental rights (to life, to dignity, to work, to health, to seek a future…) being perpetrated by the European Union and its Member States, in an environment of total impunity of the responsible actors, and through policies designed to punish any social actors that, individually and collectively, perform practices of solidarity;
  2. b) The right to migration has always been acknowledged as a constituent part of the history of peoples, but it is now being tragically denied and has become the expression of a neo-colonial politics, that rejects the very existence and identity of the refugee and migrant people, transversal in terms of origins and causes, and as the product of a globalization rooted in a development model based on economic, environmental, of security and wars strategies, which make migration a long-term phenomenon which cannot be contrasted with pushback or containment operations.

The PPT – which has been actively engaged for over 40 years upholding both current international law as well as the Universal Declaration of the Rights of Peoples – has recognized in the dramatic events suffered by refugees and migrants on the borders and within the European countries, a resurgence of a situation, already examined and judged in many previous sessions, and agreed to entertain the request by embarking on a formal procedure to investigate and assess crimes and responsibilities and propose actions to be taken.

Consistently with the statutory mandate of the PPT, which is not primarily to judge crimes but to promote innovative right categories and practices, the procedure has entailed convening sessions to gather evidence of the various aspects of a situation which, while highly complex, is tragically consistent in its substance and diversified in the forms it takes. The venues and the themes of these sessions (Barcelona, July 2017; Palermo, December 2017; Paris, January 2018; Barcelona, July 2018 and London, November 2018) offer a comprehensive map of the approach, the scope and the specific nature of the investigations, the complementarity of its findings with regard both to the factual documentation and to the eyewitness testimonies, as well as the types of crimes being committed, and the liability for their commission.

At the end of each of these sessions, the panels of judges of the PPT, representing different context, as well as professionals and cultural backgrounds, delivered detailed decisions, with regard to the specific facts and to the reasons and conclusions adopted.[1]

The essential elements of the process are also summarized, with a richness of information which reflect the general strategy and the field practices in the different context of the evidences submitted to the attention of the PPT, in the documents prepared for this concluding event by the movements which have promoted and accompanied the work of the PPT, carefully update to focus on the processes of criminalization of the civil society, as well as on the spaces characterized by the absence of rights where the gender and minor targeted violence finds their most dramatic expressions.

  1. Assessment and decisions of the PPT sessions

2.1 All the sessions of the Tribunal examining violations of migrants and refugees’ rights have heard numerous similarities in the treatment meted out to migrants despite the different specific situations in each country. One main fact that has emerged is that what is often called a migrant crisis is, in reality, a profound crisis within the European Union which has been shown to have arisen in every country of the Union in one way or another.

From the Palermo session onwards the contradiction in the European Union and its Member States clearly emerged: on the one hand, they proclaim the universality, indivisibility and interdependence of fundamental rights, and the other hand, they are adopting policies which ignore or violate these refugees and migrants’ rights. The right to migrate, ius migrandi, which was used to justify the conquest of America, is now being denied to the people migrating from the global South to the global North. The right to come and go, enshrined in article 12.2 of the International Covenant on Civil and Political Rights, and the right to work, provided by article 6 of the International Covenant on Economic, Social and Cultural Rights are in reality being denied by closing Europe’s borders.

Migration is an existential and political act. Ius migrandishould be accompanied by the duty to receive migrants, but this duty clashes with State sovereignty over their territorial domain. To affirm their sovereignty, States are detaining migrants on their borders, ready to violate their human rights. The sole purpose of European policy is to block immigration. This policy of closing Europe’s borders, whose prosperity has been created based on an economic system of plundering the resources of the global South cannot be considered legitimate or politically justifiable until the European Union commits to adopting another global economic model which will permit the development of the countries from which the migrants are fleeing of necessity, knowingly risking death by drowning in the Mediterranean when faced with the certainty of starving to death in their own countries.

In this context, hospitality has been turned on its head, and transformed into hostility. Proof that European policy is designed solely and exclusively to block immigration is the absence of any arrangements or provisions to guarantee legal and safe entry conditions, while clearly aware of the fact that migration is a structural phenomenon that cannot be addressed by raising physical or legal walls.

The European Union’s immigration and asylum policies, based on agreements concluded between individual EU Member States and third countries, constitute the denial of the fundamental rights of individuals and of the migrant people, denying them their human dignity and defining them as illegals and considering any action to rescue and assist them at sea to be illegal.

The decision to withdraw the Frontex and Eunafor Med vessels helps to braoden Libyan coastguard operations in international waters, blocking migrants on their way to Europe, putting their lives and their physical integrity in jeopardy, and taking them back to camps in Libya where they fall prey to financial extortion, torture, and inhuman and degrading treatment.

Since the conclusion of the 2 February 2017 memorandum between Italy and Libya, the work of the police and the military in Libya, in Libyan and international waters, and of the many tribal militias and the so-called “Libyan coastguards”, have resulted in deaths, deportations, disappearances, arbitrary imprisonment, torture, rape, enslavement and – more generally – the persecution of the migrant people: a crime against humanity.

By its conduct under the provisions and by implementing this memorandum, Italy and its representatives are acknowledging total liability for the actions of the Libyan forces against migrants, both at sea and on Libyan territory.

In the wake of the agreements concluded with the Libyan coastguards and in the course of coordinating their work, the episodes of aggression against the NGOs engaged in search and rescue operations in the Mediterranean also stand as proof of the liability of the Italian government, perhaps also in association with the European agencies operating in the same context.

Banning and pushing back the NGO ships from the Mediterranean, which has also been imposed by the Italian government’s mandatory “code of conduct”, has considerably weakened the migrant search and rescue operations at sea and increased the number of victims.

2.2. The Paris Session showed that the non refoulementprinciple, intended to guarantee the protection of people fleeing their country for whatever reason, was being frequently violated in metropolitan France, Mayotte, in Italy with regard to Libya, and Spain with regard to Ceuta and Melilla, giving rise to state liability. The March 2016 Turkey-EU accord made it possible to return to Turkey any “irregular” migrant arriving on the Greek islands. Turkey was rewarded for this with 6 billion euro which were used to increase the forces deployed there (coastguards, border guards) and to detain more than 3 million refugees.

The right to asylum is being constantly whittled down or circumvented by a variety of measures, such as the blanket requirement of a visa, the establishment of hotspots on Europe’s borders (Greece, Italy), the permanent establishment of what can only be called human beings’ sorting centres, and the introduction of border controls with the excuse of combating terrorism. Asylum applications are almost routinely construed as playing for time or fraudulent, and subject to a priority procedure, to afford less protection. References to such pseudo-legal notions as “internal asylum”, “first asylum country”, “safe third country”, or “safe countries of origin” are all obstacles raised to refuse recognition of refugee status.

2.3. The Sessions of Barcelona and London have focused their testimonies and provided solid documentation to the PPT more specifically on the situation of migrants and refugees in the real institutional, working, cultural contexts of each of the countries. The denial of freedom of movement deprives migrants from another right: the right of freedom from arbitrary detention. All the European countries have adopted legislation authorising the right to detain foreigners for period ranging from a few days to “indefinitely” which may be for several months, sometimes with no legal basis. It is a settled fact that inhumane acts – deprivation of liberty, murder, enslavement, forced disappearances – have been committed as part of a generalised or systematic attack specifically or deliberately targeting the civilian population of migrants.

A specifically important element emerged and extensively documented for its implications in the London Session has been the openly declared governmental policy targeted to create in UK a ”hostile environment” for migrants and refugees. Such strategy coincides broadly with the policies and the practices of all the European countries, where the manifestations of discrimination, xenophobia, racism, inhumanity have become daily and growing realities.

The EU and Member State leaders including France, and their agents, are accomplices in the commission of these crimes against humanity, by providing substantial assistance to the state or non-state authors of these crimes, in full knowledge of the facts, which therefore renders them criminally liable pursuant to article 25 of the Rome Statute.

Prosecuting those who express solidarity with migrants or refugees both in France and in other EU countries, violates the rights of those who champion the rights proclaimed by the United Nations.

The struggles of migrants must be incorporated into the struggles of marginalised citizens, where women have an important role to play. What is bad for you is bad for me. Racism against migrants becomes racism against citizens, misogyny against citizens and migrants. More than legal instruments, what we need now is unity, equality, solidarity, and workers’ rights.

  1. Europe and the people of migrants and refugees

3.1. The comprehensively argued grounds on which the PPT judgments have been reached call for two fundamental considerations which, while apparently attracting broad agreement, do not appear to have been borne in mindwhen laying down policies and practices for dealing with people arriving in Europe: a) human history, for better or for worse, has always seen migrations that have often been occasions and causes of the most atrocious wars and conflicts; b) the European Union was originally founded to combat and overcome the causes and factors of the many wars that have caused bloodshed in Europe, to fight against every kind of nationalism and racism, and to solemnly declare that genocide, concentration camps, oppression and race discrimination could “never again”occur.

Europe, based as it is on Constitutions and Charters, the civilised Europe that acknowledges the equal dignity of all people and human rights, the welcoming Europe, a haven of protection, cannot therefore become a Fortress Europe by raising physical or legal walls without betraying itself and losing its identity and its very “soul”. And this applies particularly, as the relevant United Nations Agency has recently documented, when it is faced with worldwide population shifts currently involving more than 70 million people, including 25 million refugees, who are even being hosted by small and poor countries – with only a tiny percentage heading for Europe, which is the world’s wealthiest and best-structured continent.

No country, except the USA under the Trump administration, is adopting such a rigid anti-immigration policy as the EU Member States, which are going so far as to actually deny the right to asylum, making it difficult and often impossible, for asylum seekers to submit their applications and at all events preventing judicial oversight over the rejection of asylum applications by the administrative authorities.

Not having any legal and safe channels for reaching Europe, many refugees and migrants are induced to attempt crossing by sea using boats provided by traffickers working in collusion with the Libyan militias, who are cashing in on these needy people. This is transforming the Mediterranean Sea from a crossroads of civilisations to an immense graveyard where tens of thousands of people, hoping to reach what they imagine to be a place of welcome and solidarity, have drowned or been lost at sea.

A whole range of causes have produced these outcomes, of which the most decisive has been the “externalisation” of Europe’s southern borders, accompanied by the offer of billions of euros to the Turkish dictatorial regime to close down the Balkans route, and to the Libyan militias to block African migrants using unprecedented violence and without any oversight whatsoever, as is constantly being reported by the United Nations High Commissioner for Refugees, which never tires of denouncing to the whole world the atrocities of every kind that are being perpetrated against migrants and asylum-seekers, including vast numbers of women and children, in the detention camps.

Even when no specific individuals have been personally identified as the authors of the tens of thousands of deaths and other victims to satisfy the necessary level of evidence required under criminal law, they are the foreseeable and foreseen product of “system crimes” according to the definition adopted by the PPT to categorise the tragic effects of economic policies and decisions that sacrifice fundamental rights. Tragedies that – as the United Nations High Commissioner for Refugees said on 22 March this year –  “have indelibly shamed our continent”, recalling that “in 2018 six people were drowned every day in the Mediterranean”. This is a percentage increase running parallel to the increased restrictions imposed on rescue operations, by criminalising the work of the NGOs, mainly by the Italian government which obstinately insists on the reliability of the Libyan authorities who, according to recent statements issued by the Ministry of Home Affairs, “guarantee respect for the human rights of migrants thanks to the presence of the OIM”. These are grave and unacceptable statements that paint a false picture of the true situation as the most responsible European authorities, and the OIM, know perfectly well, and deliberately ignore the recent statements issued by the United Nations High Commissioner for Refugees that, in Libya “a population of refugees and migrants are living in terrible conditions, mony of them detained in holding centres which are among the most  dreadful” he has ever visited in his long experience in dealing with humanitarian affairs.

3.2.  It is illegal to transform Europe into a fortress by closing ports and borders and refusing to rescue and assist those in need, because it violates binding International law and is unlawful because adopted using measures issued without any discussion and approval of the European Parliament and the national Parliaments.

It is above all unconscionable and unjust with regard, first of all, to the rights and needs of people who have set out on a harrowing journey, not on a whim or for their amusement, but out of necessity, fleeing from war, devastation, famine or environmental disasters, often caused or aggravated by the policies and economic decisions of the western European economic system and lifestyles.

It is a decision that not only causes enormous distress, but it is also to no avail, as we know from history and demography. Never before, in the course of millennia, have structural migrations of peoples been effectively prevented by physical or legal obstacles. Closed-door policies not only cause death and suffering to refugees and migrants, they also cause the European population to adopt rigid identity postures, and xenophobic and racist attitudes; in a short space of time, they may seem to have the backing of public opinion, but this is illusory and bound to come to nothing because these policies are incapable of addressing structural phenomena, but on the contrary, prove counter-productive because they prevent or delay any possible reasonable ways of handling the problems which inevitably emerge when these diversities meet.

And it is also an uncivil policy that militates against the interests of Europe for economic and demographic reasons. Migration flows cannot be governed, which is the most we can realistically hope to achieve, by means of violence and repression, which if foolishly pursued can only degenerate and lead to further conflicts which will be even more difficult to govern.

3.3.The PPT recognizes the unlawfulness of concluding international agreements in a simplified form between the EU Member Statesand third States (Turkey, Libya, Sudan, Niger), because it removes major decisions from public debate, from the competence of the European Parliament and the national Parliaments, and from judicial oversight, such that this practice must be considered to be radically contrary to European Union law. More especially, since these are often labelled “development cooperation agreements” they conceal their real legal nature, which is to govern the unacceptable trade-off between money and people, by delegating the blocking of the Union’s external borders to third countries, which we know from daily experience provide no guarantees whatsoever, that they will respect the most elementary human rights.

Such practices are gradually undermining the rule of constitutional law, which is always dangerous but all the more so when applied to migration, which is an irreversible phenomenon in a world where capital, goods and information are increasingly in movement, and it is unthinkable that human beings are the only exception. This process is inevitably bound to radically change our increasingly more multi-ethnic societies, which are obliged by the facts of history today to revise the very concept of citizenship, instituted in Europe to ensure peoples’ rights and freedoms, but now being used as a demarcation line to deny not only “citizenship” rights but also the human rights vested in every person regardless of the jurisdiction to which they belong.

All the most distinguished legal, social and political opinions examined by the judges of the PPT sessions have made it clear that structural policies and interventions are needed to prevent the causes that are driving migration, in order to prevent people being forced to flee from their own countries driven by persecution, war, poverty, and the effects of climate change. Only the adoption of measures of this kind, coupled with policies to receive and integrate refugees would appear to be truly consistent with the thinking underlying and the purposes enshrined in the Charters of fundamental rights adopted in Europe.

The structural character of migration and the unprecedented suffering being inflicted today on the migrant people are specific, concrete and symbolic indicators of the absolute urgency of restoring subjective priority to peoples and persons, shorn of any populist logic and goals, in a global world of states, fully taking on board the whole dimension of the values and the indications set out in the Universal Declaration of the Rights of Peoples (the Algiers Charter, 4 July 1976).

The right to life, to personal and collective dignity, personal freedom and health may never, under any circumstances, be sacrificed under the pretext of security, which is often only being used as a means of gleaning electoral support.

The PPT is fully aware of the fact that it is not enough to appeal to the law to handle such complex phenomena, which has to be done by politics which is responsible for guaranteeing and taking responsibility for the interests of the people. Those tasked with adopting political decisions must certainly bear in mind the magnitude of migration movements and cannot ignore the widespread fears running throughout European societies, or the complexity involved in implementing procedures to integrate migrants and refugees.

However, if politics is to be keep faith with the pledges of peace and respect for the dignity of people and peoples solemnly enshrined in international law (from the United Nations Charter to the EU Convention on Human Rights) it must come up with solutions which are solidly grounded in law both to guarantee the rights of refugees and migrants and clearly set out the substance and the image of European democratic society.

Politics must, under all circumstances, respect the fundamental rights of people and peoples, for the guarantee of fundamental rights is a sacrosanct borderline for everyone, including lawmakers and governments, who must ensure that these needs are being met, and offer perspectives and solutions which, while fully respecting the dignity and equality of all men and women, make human rights and the aspiration to peaceful coexistence between different people, a reality.

  1. Conclusions and recommendations

Based on its findings and judgments, the PPT has concluded that taken together, the immigration and asylum policies and practices of the EU and its Member States constitute a total denial of the fundamental rights of people and migrants, and are veritable crimes against humanity: even though they may not be personally ascribable to individual perpetrators according to commonly agreed criminal law definitions they must be recognised as “system crimes”.

This definition requires the European Union to take responsibility for simultaneously changing its economic and asylum and migration policies and regulations, on a strictly interactive basis, and to adopt public and transparent procedures for concluding treaties and conventions, fully involving the European Parliament. Secondly, being system crimes does not relieve the EU and each of its Member States of their specific liability for failure to comply with the obligation to offer assistance, for complicity in murder, torture and inhumane and degrading treatment, and for the other serious violations of human rights resulting from by pushback.

The PPT is adamant that, in order to be effective and rational, every necessary and rational measure to regulate migration and reallocate the migrants must be taken by the European Union as such, since individual Member States tend to pander to sovereigntist tendencies and fuel fear and public sentiment caused or aggravated by the lack of effective reception policies, whereas only the Union itself can adopt and sustain a raft of policies to deal with the root causes of migration, and ensure compatibility between the rights of those already living in the European countries and the rights of the migrants, particularly with regard to the right to asylum, opening communities to foreign residents, appreciating the value of cultural diversity, taking care of vulnerable people, and humanising social relations.

It is urgently necessary to impose a moratorium on all the agreements which, like the EU-Turkey and Italy-Libya agreements, lack any public oversight and render the parties jointly liable for violations of the fundamental human rights of migrants. These agreements must be radically renegotiated and amended.

Consistently with the positions adopted by the relevant United Nations Agencies, the PPT deems it essential to put an end to any hostilities and criminalization against the NGOs engaged in rescuing shipwrecked persons and migrants in difficulty. To ensure compliance with the duty to protect paramount human rights, any measures designed to obstruct any individual and collective actions by civil society solidarity organisations, in any way whatsoever, must also be suspended. And decisive action must be taken to counter any practices that fuel xenophobia and hatred and create a hostile environment.

***

The PPT’s sessions have been convened as a forum for listening to the migrant and refugee people, and they have also given voice to the grief caused to families of the countless, and nameless, dead and missing persons. The institution of an international observatory, independent and organised with the widest participation of the families, with the mandate of the recuperation, whenever possible, of the bodies of the victims and, in any case, of the reconstruction of the identity of the disappeared would be a minimal token response to the right to be remembered, to truth, and to grieve, which is an essential component part of all human civilisations.

According to the tradition of the PPT, this document is first of all the voice of the victims and of their families and communities. It represents however also the voice of the hundreds of organizations, which together with the countless testimonies, have been the true protagonists of the process opened in Barcelona in July 2017: they did not simply share the sufferings of the victims, but have declared their willingness and readiness to continue their active solidarity with those who choose Europe as the place where their legitimate life projects could become a reality.

The PPT has presented today the results of its work to the highest institution of democratic representativeness of the Europe of the Rights, with the wish that they could be received as a contribution to the activities of the Parliament emerging from the forthcoming elections.

It has become dramatically urgent to give an identity and visibility to the migrant people, as one way of sensitising our collective awareness of the close linkage between the fundamental rights of migrants and refugees, and the future of our democracy.

 

Bridget Anderson (UK)

Perfecto Andrés Ibáñez (Spain)

Luciana Castellina (Italy)

Mireille Fanon Mendes France (France)

Franco Ippolito (Italy)

Claire-Marie Lievens (Belgium)

Luis Moita (Portugal)

Patricia Orejudo (Spain)

Philippe Texier (France)

 

[1]
[1]http://permanentpeoplestribunal.org/45-session-on-the-violation-of-human-rights-of-migrants-and-refugee-people-2017-2018/?lang=en

Time for a New Transnational Solidarity  in favour of the
Rights of Migrant People

 Permanent Peoples’ Tribunal Hearing On the Human Rights of Migrant and Refugee People  EUROPEAN PARLIAMENT, BRUSSELS  

Tuesday April 9, 2019

Spanish French

Presentation

Migrant organisations, trade unions, migrant solidarity groups, scholars and NGOs from the European Union (EU) participated in a collective effort between 2017 and 2019 to give visibility to and denounce the systematic violation of the rights of migrant and refugee peoples with impunity as a result of the migration policies developed by the EU.

Close to 500 organisations from Spain, Italy, France, the United Kingdom and various African countries asked the Permanent Peoples’ Tribunal (PPT) to organize a series of hearings dedicated to the rights of migrant peoples and hear the testimonies of women, men and youth that have been the victims of these policies.

Time for a New Transnational Solidarity in favour of the Rights of Migrant People”is the result of work carried out between 2017 and 2018. This publication presents the main elements of our organisations’ analysis and the demands that we submitted to the Permanent Peoples’ Tribunal.

 

To Permanent People’s Tribunal

— General context

The history of the development of mankind, its advances, crises and wars is closely intertwined with the history of migrants and refugees. As in other turbulent times in history, migrants and refugees are being subjected to discrimination and their rights, violated, while politicians from various countries promote and organise xenophobic campaigns against them. Also, as in the past, thousands of people are mobilising today in solidarity with migrants and refugees, as they are aware that if their rights are not recognised, sooner or later, the rights of the rest of the population will be curtailed.

It was once said that the beginning of the 21stcentury was the beginning of the end of history. Victorious over other ideologies and social classes, capitalism was to provide all people with opportunities, as long as they knew how to adapt. Yet, even before the first decade of the new century was over, it became clear that this was merely a mirage. And this mirage turned into a nightmare. The wars in Iraq or Afghanistan, the financial and economic crisis of 2008 (the worst one since the Great Depression of the 1930s), devastation, the rapid depletion of the planet’s resources and the acceleration of climate changeare some of many elements of proof that if no radical change is made to the policies being pursued today, humanity is heading for disaster. The denial of the rights of migrants and refugees – the main victims of these policies – foreshadows a return to times when human rights did not exist.We are now witnessing a global drive to commodify all areas of life in which authoritarian and unsustainable capitalist, patriarchal and colonial dynamics are exacerbated by the privatisation, co-opting or negation of democratic institutions. The result is a process that destroys peoples’ sovereignty and seizes countries and territories, integrating them as if they were part of a large corporation’s internal structure or one of its branches. Human rights are being emptied of their effectiveness as a fundamental category, as they lose policy space to the commodification of life.

Some examples of this are the deregulation of social, labour and collective rights as an ongoing process, which is justified as being necessary in order for the capitalist system to continue functioning. Together with this, communities and individuals are being dispossessed and forced to leave their territories so that all kinds of corporations – oil, energy, mining, tourism, etc. – can earn profits. The wars promoted by imperialist and neo-colonialist policies, which serve as an operation of destructing-reconstructing domination and wealth, constitute another example. Finally, the devastation of ecosystems is aggravating and accelerating the impacts of climate change.The combination of these variables explains the essential reasons for the migration flows around the world. Not only are the victims of commodification and deregulation stigmatised and their rights, violated, but they are also forced to join the ranks of millions of migrants whose exact number is unknown and turned into a new commodity that can be bought, sold or discarded. Or die in the process.

The crisis in Europe

The European Union (EU) abolished the death penalty years ago. But it allows thousands of people who try to reach its territory to die. The EU claims to be a standard-bearer and promotor of human rights around the world. Yet, it violates these rights by creating non-law zones within its own borders. The EU is the world’s leading economic power and is constantly promoting trade agreements. But it has developed a sophisticated and horrifying system to externalise its borders: it builds railings, fences and walls, like a fortress under siege, while large EU transnational corporations and capital pillage the wealth of other countries and impose advantageous trade conditions in the EU’s own favour. The EU reaffirms the rights of women and children, but denies them these rights by separating families, locking up children, deporting women, denying them the right to asylum and facilitating rape, torture, human trafficking and forced prostitution. The EU has laws that guarantee the right to asylum and migrants’ rights. Yet, it refuses to sign the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, has created and/or reinforced repressive measures against migrants, and criminalises organisations and individuals who act in solidarity with them. The EU has been a driving force in the making of the non-binding Global Compact for Safe, Orderly and Regular Migration, recently signed in Marrakesh (December 2018), which reduces the agenda of the human rights of migrants to a technocratic management issue.

The EU was to be a political project capable of satisfying the needs of social development, environmental sustainability and the consolidation of democratic rights. However, this project has been going through a profound crisis for years. The EU’s policy on migrants and refugees has led to a human and humanitarian disaster of unimaginable proportions.

The Italian police’s cooperation with governments such as Sudan’s or with the Libyan coast guard; the billions of euros that the EU handed over to the authoritarian and repressive Erdogan government in Turkey to control the movement of tens of thousands of women, men and children on its territory who had left their homes to flee war, poverty or environmental disasters; the strengthening of the system of fences and railings built along Spain’s southern border in an attempt to stop the flows of migrants coming from Africa; the approval of laws that make assisting refugees a crime, as in Hungary, Italy and France; the creation of pseudo legal concepts such as “safe third country”; the closure of ports, the refusal to allow boats transporting migrants to dock or to save people at sea, which is in blatant violation of international law, or the seizure of boats to prevent them from saving people who are in danger, as occurred in Malta or Italy; threats to impose sanctions or use repressive measures against mayors or other legitimately elected authorities when they support migrants; the abolition of residence permits issued on humanitarian grounds or the cancelling of economic resources allocated to migrant reception centres; and the creation of biometrics systems for unaccompanied children held at youth detention facilities as if they were criminals or had committed a crime, as France or Spain do, are some examples of the anti-migrant policies developed in recent years by European governments and the European Union. It is clear that we are witnessing the development of necropolitics, as these policies are sentencing thousands of innocent people to death. We argue that the European Union and its member states are responsible for crimes against humanity.

The crisis of the EU as a space for defending, promoting and developing human rights becomes more evident when one looks at the growing support for and the multiplication of governments led by neofascists, populists and nationalist xenophobes, or vulgar conservatives or “socialists” who mention, on a daily basis, the “waves of refugees” or an “invasion of foreigners” that must be stopped to avoid the “loss of European values” and because the EU “cannot take in all the misery of the world”. In 2018, the number of migrant arrivals in the EU was the lowest in 5 years. Even so, none of the European countries have relaxed their migration policies.

Borders have become zones dominated by war imaginaries where rights violations and impunity are systematic practices, and where women’s bodies are turned into weapons of war that are used to defeat and humiliate enemies in order to destroy their social basis and as tokens of exchange.

We strongly denounce the sexual violence that women, boys and girls suffer while in transit at the hands of the men that they meet along the way: travel companions, police officers, gang members, etc. Spaces where violence against women occur are also “no rights” spaces.

Women refugees and migrants must be political agents. They often have to fight against the stereotypes of the places of destination and to free themselves from the control of their community of origin. This situation is made worse by the pressure on women to maintain the identity of their community, which is usually imposed on them by patriarchy. However, migrant women are not passive subjects who receive help; they are the protagonists of their own migration process.

The lack of safe routes for migrants and refugees means that they are confronted with grave situations of direct and indirect violence while in transit. This problem is even more serious for certain social groups, namely girls, women and people with different identities and genders. These people often suffer from sexual abuse, humiliation, trafficking and other issues that must be addressed according to their specificity.

On numerous occasions, non-state agents such as certain churches, families or community members are the ones who engage in persecution based on gender and/or sexual orientation. This type of persecution must be recognised as a form of violence and the concept of agent of persecution must be broadened to include these actors.

Why we asked the Permanent Peoples’ Tribunal to intervene

Since its inception nearly half a century ago, the Permanent Peoples’ Tribunal (PPT) has been consolidated as a body that gives voice to the voiceless, to people who have been denied the opportunity to speak or whose opportunity has been taken from them. Its actions have given visibility and analysed in legal terms all those situations where the massive violation of fundamental human rights has received no institutional recognition or response, neither at the national nor the international level.

As an international opinion tribunal, the PPT affirms that states are not the only rightful representatives and interpreters of norms, their implementation and their enforceability. Its founder, Lelio Basso, concluded that “the need for public awareness can be recognised as a source of law”.

The PPT itself emphasises that “the objectives and specific challenges of a session of the Permanent Peoples’ Tribunal should take the political and legal scenario at the time of the first PPT session in 1979, held on the basis of the statute of the Universal Declaration of the Rights of Peoples (Algiers, 1976), as a reference for its general framework”.

In December 2016, several organisations requested that the PPT hold a hearing on the violations with impunity of the human rights of migrant and refugee peoples. The goal of this first session was to give greater visibility to migrants as inviolable subjects of rights; identify and judge the “chain” of co-responsibility along migratory routes that lead to the violation of migrant people’s human rights; and urgently provide and promote adequate measures to ensure access to justice.

As indicated in the presentation of the 38 organisations that co-convened the first PPT session on the violations with impunity of the human rights of migrant and refugees persons, with the endorsement of 100 networks and organisations, the PPT aimed to:

  • Receive and rigorously document the proposals and testimonies of the communities of migrants and refugees;
  • Listen and give visibility to cases of violations of the rights of migrants and refugees;
  • Jointly analyse the root causes (including trade and investment agreements, global extractivism as well as the global production and labour chain) of the forced displacement of migrants and refugees;
  • Determine the responsibilities of governments, including the European Union and other official European bodies;
  • Focus on the role of transnational corporations in the global production chain and in border regimes.

After the first PPT session on this issue was held in Barcelona in July 2017, the situation for migrants and the repeated violation of their rights got worse. We therefore agreed with the PPT to hold more hearings on the issue.

In December 2017, with the support of over 100 international non-governmental organisations and associations, the Palermo hearing was held. It focused its analysis on the human rights violations and the policies developed by the EU and its member states at Europe’s southern “border”.

In January 2018, a third PPT session was held in Paris. The 32 French organisations and associations that participated in the organisation of the session asked the PPT to analyse the impacts within EU borders of the policies that seek to restrict migrant arrivals, favour their interception outside the EU and accelerate the deportation process. The PPT heard 38 testimonies from migrants, representatives of organisations who act in solidarity with migrants, researchers, parliamentarians and local authorities.

In July 2018, with the endorsement of close to 50 organisations, the fourth PPT session was held in Barcelona. On this occasion, the work and testimonies were focused on “non-law” spaces and three fundamental issues: Europe’s border to the south, gender and diversities, and minors and youth.Finally, in November 2018, the fourth PPT session was held on the violations of the human rights of migrant and refugee peoples. With the endorsement of over 100 organisations, including trade unions such as UNITE, the PPT was asked to examine the economic, security, migration and labour policies of the EU and its member states. It was also to evaluate the “hostile environment” policy that the UK government had been using against all migrants and refugees, both with or without permanent residency status in the country.

More than 500 organisations, groups, movements such as La Via Campesina, trade unions such as UNITE and LAB  and representatives of public officials have been involved in these two years of work and PPT hearings. The rulings issued at the end of each session demonstrated that the PPT’s work is fundamental for reversing the regulatory asymmetry that prevails between the protection of the rights of transnational corporations and the protection of human rights. It is also key for gathering legal and political proof that could be used in legal action against the EU and its members states and for promoting the creation of new rights.

 

The EU and its member states continue to violate international law

Between the first and the final TPP hearings on the violations of the human rights of migrant and refugee peoples (from July 2017 to November 2018), the EU and its member states implemented several repressive measures to detain migrants and prevent them from reaching Europe. Many of these measures have directly or indirectly caused deaths, as well as the kidnapping, torture and rape of men, women, youth and children.

According to the UN High Commissioner for Refugees (HCR), in 2017, the year the PPT began to work on this issue, close to 3,140 migrants died or were reported missing while attempting to cross the Mediterranean. This confirms that this region, which is the doorway to the EU, has become the biggest sea cemetery in the world.

In 2018, as mentioned earlier, the number of migrant arrivals in the EU was the lowest in 5 years. However, according to UNHCR data, the number of deaths continues to be outrageously high (2,275 deaths, with an average of 6 deaths per day) and the number of people involved in shipwrecks is unknown. European leaders have opted for closing their borders and, in some cases, organising deportations instead of developing policies on protection and rescue.

In the Mediterranean, serious crimes against humanity are being generated. People who are fleeing war, extreme poverty or sexist or religious violence are being abandoned in supposedly “safe” or “peaceful” regions, such as the Mediterranean. This comes very close to a new kind of crime that can be codified as “crimes of peace”.

According to HCR figures, between 2014 and 2018, close to 18,000 people perished or disappeared in the Mediterranean Sea. Given that the EU and its member states continue to approve and implement increasingly drastic repressive measures, these numbers will continue to rise. Some of these measures are:

 

— Italy.The imposition of a “code of good conduct” on organisations that rescue people at sea. It bans them from entering territorial waters and if they do go out, their boats are seized and impounded in the ports. The same is true in Malta. As the Italian organisations that promoted the PPT session in Palermo observed one year after the session (December 2017), “the government has escalated its war on NGOs at sea”. The Italian navy strengthened its collaboration with the Libyan coast guard to send people who are trying to escape the hell in Libya back to the country.

 The expulsion or transfer of people to Libya was denounced in late 2018 by the Office of the UN High Commissioner for Refugees. According to this UN body, “This climate of lawlessness provides fertile ground for thriving illicit activities, such as trafficking in human beings…and leaves migrant and refugee men, women and children at the mercy of countless predators who view them as commodities to be exploited and extorted for maximum financial gain”. It adds that “migrants detained in the centres are not given enough food and are systematically subjected to beatings, burning with hot metals, electrocution or subjected to other forms of abuse with the aim of extorting money from their families”.

Based on numerous testimonies and reports, one can say that the treatment of migrants in Libya can be classified as crimes against humanity.

Furthermore, Italian authorities obtained another “victory” at the end of June 2018: official recognition of the International Maritime Organisation (IMO) for Libya’s SAR area. For the Italian government, this meant it could implement a new policy of “closing its naval ports”. As for Libya, on the Libyan side, the country could conduct operations to intercept, instead of rescue, migrants and, consequently, restrict assistance in international waters and continue accusing NGOs of acting in collusion with traffickers.

The interceptions and forced return of migrants to Libyan detention centres – where they are held in infernal conditions, as denounced by several reports and testimonies – mean that none of the migrants have been able to request asylum and no one has been able to assess their need for protection or any kind of assistance. This practice is called deportation or expulsion.

This means that not only the Italian government, but also other European governments are violating the principle of non-refoulement, which is a fundamental principle in international law. In fact, according to article 33 of the Geneva Convention, refugees cannot be denied entry to a territory, nor can they be expelled or transferred to territories where their lives and freedom are threatened.

The case-law of the European Court of Human Rights determines that the prohibition on refoulement applies regardless of whether the individual has been recognised as a refugee and/or has formalised this status by submitting a request to obtain such recognition. In essence, refoulement is any form of forced removal to an unsafe country.

Libya is not recognised, nor can be recognised, by any international organisation or body as a safe third country and as being capable of guaranteeing a safe port for rescue (POS – place of safety).

The Italian government’s new policy on migrants and the people and/or organisations that work in solidarity with them is particularly troubling due to the repeated violations of the norms enshrined in the Italian constitution, European treaties and international laws.

Moreover, the government’s new decree on security and immigration was converted into Law no. 132/2018. It restricts rights and due process even further, as well as the cases in which recognition of legal status is granted. It also eliminates protections on humanitarian grounds and introduces highly discriminatory criteria on immigration and security. 

— France-United Kingdom.In December 2018, Paris and London approved a “strengthened plan of action”. The plan includes the creation of a new joint information and coordination centre in Calais with the goal of limiting the flow of migrants as much as possible and “fighting crime”. In France, a new asylum and immigration law was adopted in the second half of 2018. It imposes restrictive measures and additional controls to limit entry into the country and banalise expulsions. Prefects are ordered to favour expulsions (deportations) without waiting for the appeal courts’ rulings. Detaining migrants in administrative detention centres (CRAs, for their acronym in French) when they have not committed a crime is a clear violation of law. The situation is made worse by the countless problems reported inside the centres: there have been several suicides or suicide attempts in the CRAs.

— Spain.The Law on Foreigners and the Law on Citizen’s Security serve to repress and restrict the rights of migrants. Foreigner detention centres (CIEs for their acronym in Spanish) are a tool used to maintain people who are already living in difficult conditions in a state of extreme vulnerability. The centres also facilitate the exploitation of the victims and keep them silent. The violations of migrants’ rights committed at the country’s southern border are systemic. The Government of Spain recently decided to stop a boat used to rescue people in danger (Open Arms) from setting sail.

It is worth noting here that other EU countries committed to taking in dozens of migrants rescued from the boats, but have not fulfilled their commitment. What is worse, 16 EU states continue to refuse to receive migrants (with a certain profile) in their country. At the same time, the EU and its member states have massively increased funding for Frontex, the EU agency in charge of policing the EU’s coasts and borders, whose budget is to increase to 1.3 billion euros between now and 2020 and its staff, to 10,000 workers. Brussels has recommended these measures without any previous assessment of this agency’s impact on the violation of human rights.

European governments and EU institutions are not only eliminating and suspending rights, but also redefining who are subjects of rights and who are excluded from the ‘human beings’ category. This is giving rise to a new phase in the deregulation of the international human rights system. All this is strongly connected to the colonial and racist logic that recognises different rights for different categories of people.

— The widespread criminalisation of solidarity

Solidarity is at risk of being permanently criminalised. In our case, this criminalisation has been concretised by EU Council Directive 2002/90. This directive stipulates that member states must impose sanctions on anyone who assists a person who is not a national of a member state to enter or transit across the EU. It also establishes that it is up to member states to decide if they will penalise people who provide such assistance for humanitarian reasons. On one hand, this is causing regulatory chaos, which, in turn, generates a lack of legal security, depending on the state in which aid to migrants and refugees is provided. On the other hand, it leaves the decision on when to apply the humanitarian clause almost entirely up to the state, thereby allowing the criminalisation of solidarity in EU territory to continue. Why do European institutions not adopt regulations that explicitly and clearly establish that under no circumstances and in no EU country can humanitarian aid and solidarity efforts in support of refugees and migrants be penalised?

The impacts of this criminalisation are generalised: it affects sea rescue missions, doctors and teachers, neighbours, students, retired persons, farmers, firemen and firewomen, etc. all throughout Europe. The effectiveness of the criminalisation of solidarity as a deterrent can be measured more by the amount of fear being spread than by the actual number of convictions.

This criminalisation goes beyond migrants who attempt to cross a border themselves to involve the people in their immediate surroundings. There are many cases where authorities do not distinguish between the self-organisation of migrants, on one hand, and human trafficking, on the other. When migrants hide in trucks or other vehicles, a third party has to close the door. By doing so, these individuals can face the same liability as traffickers, when in fact, they belong to the same group of migrants or have been paid an insignificant amount of money for the help they provided, which is to cover the costs of gasoline and similar expenses. In other cases, migrants who are given a GPS and a mobile phone and navigate the boats on the Mediterranean are themselves poor people who do not have money to pay for the trip. They often end up being detained and deprived of the legal defence that they need to contest the charges of being a gang member. The tendency to automatically assume that migrants who act in solidarity with other migrants are involved in the crime of human trafficking stems from the institutional racism instilled in the authorities of the EU and its member states.

In addition to being widespread and extended to migrants’ surroundings, criminalisation hits migrants particularly hard. Their protests, hunger strikes, roadblocks, lorry blockades, etc. result in disproportionately severe charges against themselves. For instance, the UN Special Rapporteur on the situation of human rights defenders stated in his 2018 report that the Government of Hungary convicted a migrant from Syria for terrorism for having used a megaphone to ask the police to communicate with the refugees and migrants at the border and for having thrown three heavy objects at police officers. The Rapporteur urged states to allow migrants to exercise their freedom of information and of expression, association and assembly, among other rights.

— Proposals

A new migrant people. The Universal Declaration of the Rights of Peoples of Algiers establishes that every people has a series of inalienable rights: the right to existence, the right to the respect of its national and cultural identity and the right to retain peaceful possession of its territory and to return to it if it is expelled. It also declares that no one may be subjected, because of their identity, to massacre, torture, persecution, deportation, expulsion or living conditions that may compromise the identity or integrity of the people to which they belong.

This does not correspond at all to the current context where millions of migrants are wandering from one place on the planet to another, with no rights whatsoever. To alter this situation, the Algiers Declaration must be updated to reflect the situation in the world today. It is not a matter of considering these subjects of rights as if they were “a new people” with heterogenous, transnational identities and that the international community must protect and endow with rights and obligations, wherever they live. It is a question of reinterpreting and adapting the Algiers Declaration to new transnational realities and under no circumstance leaving out the forcefully displaced, as they are ultimately the ones who have lost the most in the neoliberal capitalist system.

We demand that the fight against human trafficking not be used as an excuse to adopt racist policies and tools to close and protect borders. European institutions are being tarnished with new and obvious forms of racism which must be eradicated immediately. Migrants’ bodies are being turned into a “body-border”, as defined by Cameroonian philosopher Achille Mbembe, who analyses modern means of control used against Africans migrating to Europe. The body-border draws the line between us and them and permits us to abuse ‘them’ with impunity!

We ask the PPT to give its opinion on our demand for changes to the EU and its member states’ system for asylum and migration and for its compliance with international human rights law.

We demand the cancelation of bilateral agreements with countries that violate the rights of migrant persons: Turkey, Libya, Morocco, Sudan and Niger.

We demand that the search and rescue capacity in the central Mediterranean be strengthened, restrictions on NGOs be eliminated and all types of humanitarian assistance and rescue at sea, on land and within EU borders be eliminated. According to reports from UNHCR and other bodies, the ships that participated in EUNAVFOR MED Operation Sophia between June and December 2018 only carried out one rescue operation. NGOs are currently forced to keep their ships docked because if they do not, they will be seized, as we explained earlier. Even cargo ships are now afraid to help. This decrease in search and rescue capacity has not affected departures from Libya and more human lives are being lost in the Mediterranean.

We demand that we equip ourselves with tools and better forms of protection and assistance for accompanied and unaccompanied foreign minors, survivors in general and survivors of sexual and gender violence, trauma and torture. We must guarantee them that trained and multi-disciplinary teams of specialists will be sent and that they will not commit more institutional violence and marginalisation.

Open humanitarian corridors and other safe routes to protection and authorise embassies and consulates to issue visas.

Fulfil commitments on relocation and resettlement.

Put an end to illegal deportations to the borders of Ceuta and Melilla, for example, and to Libya.

Eliminate the European Border and Coast Guard Agency (Frontex) and, where appropriate, withdraw its operating procedures.

Demand compliance with the Treaty on the Functioning of the European Union which guarantees that border control respects and protects fundamental human rights.

End the so-called “Dublin Agreement”.

An end to the detention of migrants and refugees

As a result of the sessions on the violations with impunity of the human rights of migrant and refugee persons, the Permanent Peoples’ Tribunal should also present legal proposals that aim to end forced displacements (related to the causes of forced displacements).

We request that the PPT write the UN Secretary General, the president of the UN General Assembly, the UN High Commissioner for Human Rights and the president of the European Commission to request a meeting with a delegation of members appointed by the PPT to present the verdict and the conclusions and recommendations from its work.

As co-convenors of the 45thsession of the Permanent Peoples’ Tribunal, we are aware of the challenges raised by the strategies of resistance and the alternatives that migrant and refugee peoples are building, despite their exclusion in “non-rights zones”. We will continue working on the demands formulated during the PPT hearing process and strengthening our alliances to converge towards a new era of transnational action and solidarity. The fight for the full recognition of the rights of migrants and refugees is as important now as the fight to end slavery was at the time and the ongoing fight for the recognition of women’s rights.

Brussels, April 9th, 2019