Migrant ‘Push Backs’ at Sea are Prohibited ‘Collective Expulsions’
In the early hours of 20 January 2014, a boat coming from Turkey carrying twenty-seven Afghan and Syrian migrants was intercepted by the Greek coast guard near the isle of Farmakonisi, in the southeast Aegean Sea, and later capsized. Eight migrant children and three migrant women drowned. While this operation was described by the Greek authorities as a rescue, the migrant survivors adamantly alleged that it was, in fact, a ‘push back.’ ‘Push back’ is a widely-used term that has overshadowed the legal term, ‘collective expulsion,’ the prohibition of which was expressly provided for in 1963 in the one-sentence, oft-forgotten, Article 4 of Protocol No. 4 (‘Article 4-4’) to the European Convention on Human Rights (‘ECHR’).
In the case of Becker v. Denmark, the former European Commission of Human Rights defined collective expulsion as any measure ‘compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.’ The purpose of Article 4-4 is to enable migrants to contest the expulsion measure, thereby guarding against state arbitrariness and safeguarding fairness in forced return procedures.
Under the Strasbourg Court’s established case law, the fact that members of a group of migrants are subject to similar, individual expulsion decisions does not automatically mean that there has been a collective expulsion, insofar as each migrant is given the opportunity to argue against this measure to the competent authorities on an individual basis.
Moreover, there is no violation of Article 4-4 if the lack of an expulsion decision made on an individual basis is the consequence of applicants’ own ‘culpable conduct’. For example, in Berisha and Haljiti v.“the former Yugoslav Republic of Macedonia,” the applicants had pursued a joint asylum procedure and thus received a single common decision. Another example is the case of Dritsas v. Italy, in which the applicants had refused to show their identity papers to the police and as a result, the latter had been unable to issue expulsion orders to the applicants on an individual basis.
The locus classicus case involving interception at sea is Hirsi Jamaa and others v. Italy. This case concerned the 2009 interception and forced return to Libya of a large group of African migrants by Italian navy ships in the Mediterranean, based upon relevant bilateral agreements between Italy and Libya. The Court in this case noted that Article 4-4 is applicable not only to migrants lawfully within a state’s territory but also to all foreign nationals and stateless individuals who pass through a country or reside in it. The Court found Italy to be in violation of the above provision on the grounds that the migrants’ transfer to Libya was carried out without any examination of their individual situations, there was no identification procedure conducted by the Italian authorities, and the staff aboard the transporting ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.
State responsibility in this context also arises under Article 2 ECHR (right to life), as demonstrated in another, earlier Strasbourg Court case, Xhavara and fifteen others v. Italy and Albania. This case concerned the interception in 1997 of a group of Albanian irregular migrants in the Mediterranean by an Italian navy ship. Fifty-eight migrants drowned as a result. The Court held that, given that the fatal accident was caused by an Italian navy ship, the Italian authorities were under an obligation, pursuant to Article 2 ECHR, to carry out an investigation that was ‘official, effective, independent and public.’ On this point, the Court concluded that the criminal investigation initiated by the Italian authorities had provided adequate safeguards with respect to the effectiveness and independence requirements.
The tragic migrant interception operation in the Aegean Sea last January is part of the long list of tragedies in the Mediterranean and a consequence of long-standing European migration policies and practices that make migrants’ lawful entry into Europe overly difficult. Although European states have no legal obligation to change their policies, they are nonetheless under a clear legal obligation to provide adequate redress to migrants who have undergone such painful odysseys due to ‘push back’ or rescue attempts.