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Migrant smuggling and trafficking as crimes against humanity: growing calls for crimes to be heard before International Criminal Court
3.11.17
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A recent editorial in Der Spiegel by two legal academics supports the call recently made by a UN Special Rapporteur for the International Criminal Court (ICC) to "consider investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met." This approach is also being pursued by the EU's military mission in the Mediterranean, Operation Sophia, which has sought contacts with the ICC and has produced a "non-paper" on the topic that was recently obtainedby Statewatch.

See: The Banality of Crimes against Migrants (Der Spiegel, link):

"Agnes Callamard, UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, presented animportant new report to the UN General Assembly on Friday. The report is on "Unlawful Death of Refugees and Migrants" -- already an unordinary focus for her mandate. In recent years, her office has focused nearly exclusively on counter-terrorism, particularly on deaths by drone attacks.

As she explains, the report concerns "an international crime whose very banality in the eyes of so many makes its tragedy particularly grave and disturbing." The contention is rather dramatic, and we believe that it is indeed historic, at least as far as reports by UN bodies are concerned.

Callamard spells out the practical implications: "The International Criminal Court should consider preliminary investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met." It is particularly out of the ordinary for a UN body to recommend to the International Criminal Court what cases it should consider, but that is exactly what Callamard has chosen to do.

Against the backdrop of constant militarization of borders, her recommendation is urgent; yet without some contextualization, it can be easily misunderstood."

The UN report: Unlawful death of refugees and migrants (pdf): Report of the Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions, Agnes Callamard:

"The present report focuses on the mass casualties of refugees and migrants in the course of their flight. It addresses killings by both State and non-State actors, and denounces a quasi-generalized regime of impunity, worsened by an absence of accurate data on the dead and missing. The Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary killings calls urgently on States to address this human rights crisis by prioritizing the protection of the right to life in their migration and refugee policies."

And the: Non-Paper about Migrant Smuggling/Human Trafficking as a Crime against humanity (pdf) produced by the SHADEMED (link, Shared Awareness and De-confliction in the Mediterranean) Legal Working Group:

The migrant journey is very dangerous and migrants are subject to systematic violations of human rights. They are kept in inhumane conditions, deprived of the freedom and of the choice over starting the travel towards Europe, recurrently beaten, sexually abused, and forced to work.

So, the line of demarcation between migrant smuggling and human trafficking is becoming thinner and thinner. Such a new phenomenon, requires a new answer at the international level. The international community cannot remain indifferent to this large scale violation of human rights.

It is analysed whether they may be deemed as crimes against humanity, going beyond the traditional categorizations. First it is explored whether they can fit with the existing definition contained in Article 7 of the Rome Statute of the International Criminal Court. Then other options are taken into account, especially in a treaty making perspective.

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