Speech at the Council of Europe Conference on Smuggling of Migrants

Protection of the rights of smuggled migrants
Strasbourg 23 June 2017
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Dear participants,

It is a pleasure to be with you today.

Several of my fact-finding mission-reports refer to the issue of smuggling of migrants. If a lesson had to be drawn from all of them, it would be the following: restricting the right to seek asylum pushes more migrants into the hands of smugglers. It means more money for smugglers. The latter have sophisticated organised-criminality networks. More money for them means they become bigger and stronger. And this presents a serious security risk for Europe.

This is one of the ways in which human rights become linked with security. To put it succinctly: restricting the right to seek asylum presents a serious security risk for Europe.

The human rights aspects of migrant-smuggling are, of course, the topic of our session today.

Every day we receive tragic news about smuggled migrants. Migrants suffocating in overcrowded trucks or migrants whose boats were left to sink in the Mediterranean. These can be either refugees or economic migrants. They try to come to Europe because they fear persecution in their home countries or because they search a better future or, to put it bluntly, better employment opportunities. What they have in common is entitlement to human-rights protection. And for us, this should be enough!

How can we prevent deaths and ill-treatment on the way to Europe? We can try to exorcise the problem, by recalling that migration will always exist as long as political and economic instability and serious human rights violations continue in some parts of the world or even as long as substantial economic differences exist between countries.

We can also try to understand what smugglers feed on, how they operate, and how their activities become relevant for those of the Council of Europe. This might be a better, more pragmatic approach.

First, the scale of the problem: According to Europol, more than 90% of migrants travelling irregularly to the EU have used smugglers’ services. This creates a big market: Europol estimated again that, in 2015, the turnover of criminal networks smuggling people was between 3 and 6 billion euros.   

It is obvious that the profits are huge. At the same time, many migrants have limited resources. This together with hope and determination to pursue the slightest chance of a better future makes them very vulnerable to all sorts of human rights abuses. Smugglers and migrants interact before the journey begins; quite often during the journey as well, as I could witness, on a big scale, in Serbia which I visited last week. Or in Calais and Grand-Synthe, two camps in northern France, where I observed smugglers operating freely.

At every stage of the trip, the human rights of migrants are threatened. And quite often, it is difficult to separate violations that have happened before arrival to the Council of Europe space from those that happen afterwards.  

Take for example the right to life. So far, in 2017, more than 1,700 migrants are estimated to have lost their lives in the Mediterranean Sea. Quite often, they have not paid the smugglers enough for a safe passage. Or they have been cheated. To respect the right of life, states must save lives in the Mediterranean whether in their own search and rescue zone, or in the search and rescue zones of countries that do not live up to their obligations, or even in the territorial waters of failed states. In my report on Italy I have praised the Italian authorities for doing this. Saving lives, however, may not be enough. States must also refrain from punishing as smugglers, those providing humanitarian assistance.

During my missions I have also met many victims of ill-treatment by smugglers. It is quite common for migrants, especially those who have not paid enough, to be beaten into unsafe boats. Or to get burned by leaking fuel, when mixed with sea water, during the journey. The effects of ill-treatment are palpable when they arrive in Europe. And our authorities have a positive obligation to do something about it.

The same holds true for women who are exposed to violence, often of a sexual nature, during the journey. This is often the unavoidable side effect of coming into contact with criminals. Or for women who are subjected to forced marriages to be “protected” during the journey, something that transpired quite clearly during my mission to Turkey.

And what about unaccompanied or separated children, 170,000 of whom applied for asylum in the EU in 2015 and 2016? Are not our authorities under an obligation to protect them, for example, from sexual abuse by criminals?

The ways in which human rights are linked to smuggling defy imagination. I learned, for example that in some camps smugglers were charging fees for access to basic services, which in turn affected the living conditions of migrants and refugees who did not have enough to pay. Moreover, rivalry between smuggling gangs often results in violence in the camps.  

However, the purpose of today’s panel is not to present you with a litany of horrors. The main question that we have to address today is what we, the Council of Europe, can do about the issues I have just raised.

We can, of course, issue calls for safe and legal pathways for people seeking international protection. We can also try to be more effective by insisting that the right to seek asylum should be safeguarded, even in the case of those who knock uninvited on our doors. And let us bear in mind that safeguarding the right to seek asylum has many ramifications, including effective complaints mechanisms against abusive behaviour by law-enforcement agents on the border and human-rights training.

We can also insist on respect for the right to family reunification in the case of those who already enjoy protection. By doing these two things we will have given smugglers much fewer opportunities.

We can also strengthen our mechanisms against human trafficking, violence against women and the sexual exploitation of children (GRETA, GREVIO and Lanzarote). We can place more focus on the link between smuggling and corruption, as GRECO intends to do. We can also examine ways of reinforcing cooperation and mutual assistance with non-Council-of-Europe-member states. The latter is an aspect on which I have delved in my report on Italy. 

We should also make the most of a series of inspiring judgments issued by our Human Rights Court in cases concerning forced labour, detention and even the right to life of migrants, such as Rantsev v. Cyprus and Russia and quite recently Chowdury v. Greece.

Moreover, we should not forget that the last general policy recommendation of the European Commission against Racism and Intolerance (ECRI) is about safeguarding irregularly present migrants from discrimination. Its protection extends to smuggled migrants who have managed to enter member states’ territories, as long as they remain there. Nor should we neglect the fact that our Organisation has also developed standards for expulsion procedures.

This is already an impressive catalogue of rights. One of the questions that we should perhaps need to address today is whether these call for some kind of codification or systematic presentation that would place emphasis on the aspects that distinguish smuggled from other irregular migrants. Most prominent among these aspects would be the concept of States’ positive obligations: this obliges States to intervene to protect those under its jurisdiction from human rights violations committed by other private individuals. 

Of course, we must also recognise the limits of the tools that we have. For instance, the EU-Turkey deal was meant to provide an instrument for destroying the smugglers' business model, which involved facilitating the crossings between Turkey and Greece. It is not a secret that the deal carried risks, given its human rights implications for those sent back to Turkey and those in Greece. What we have always stressed in this connection is that Turkey is a Council of Europe member state. As a result, our monitoring mechanisms can play a role in making the deal work. This is something that we must bear seriously in mind before concluding that the same model or similar models can be applied to non-Council-of-Europe-member states.    

Finally, we should perhaps ask ourselves whether new tools are needed. I could perhaps think of one: The actions of smugglers typically include the deception of migrants. Lack of information, which I consider as one of the biggest challenges, may result in serious limitations on human rights. This is why the right to be informed could also be granted international recognition.

This is what I wanted to say by way of introductory comments. I realise that I might have spoken for too long already. It is now time to give the floor to our panellists, who will - I am sure – provide us with additional, probably better, insights on how to protect the human rights of smuggled migrants. And we will have the benefit of expert contributions from the UNHCR and the IOM – the two most relevant international organisations for our topic.

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