Amicus Curiae Brief

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Amicus Curiae Brief

Interests of the Amicus Curiae

Violation against migrant’s rights has been a common occurrence in recent times especially among EU members (Ammaturo 2018). We, the “Refugee and Migrants Rights Team” coordinate with the different states and organizations to ensure that the migrant’s rights are upheld. We also collaborate with other civil rights organizations to ensure the migrants’, and refugees’ rights across nations are upheld and that they are treated with dignity and in a humane way. This amici curia is in support of the migrants who have for so long been subjected to torture and great suffering by the EU.

The Refugee and Migrants Rights Team has roots back in 1999 when we presented the first court case as amicus curiae. Since 1999, the team has been involved in over 50 cases ensuring refugees’ and migrants’ rights are safeguarded with the coordinated effort of other civil societies organizations (Amnesty International 2021). The main duty is to ensure individuals with irregular migration status are accorded proper treatment by the member nations including access to health care and other essential services as per the international human rights regulations.

Exercising Jurisdiction

Based on the latest numerous human rights violations in the EU borders, the ICC should open an investigation and determine the perpetrators of the crimes against humanity that meet its jurisdiction. The ICC should exercise its mandate on the case of crimes committed against migrants Proprio motu.

EU Migrants Amicus Curiae Brief

In recent times, migration into foreign borders without proper documentation has become a major problem (Ammaturo 2018). In 2015, Europe recorded one of the greatest influx of migrants most of who crossed the Mediterranean in a life-threatening journey as they sought to escape harsh conditions in their home countries (Weatherhead 2018). Most of these immigrants make these journeys trying to escape from problems such as wars, famine, persecution, and even harsh living conditions with the hope that life in their destination countries will lead to their betterment and that of their future generations. According to a recent publication on Migration. (2021), the migrants’ problems don’t end there but they are welcomed with harsh pushbacks both on land and in the sea from European countries. Brutality, forced deportation, and endless torture have now become the order of the day as these migrants continue to suffer and their human rights are violated (Guarch-Rubio et al. 2021).

In a recent media report, hundreds of migrants paraded the city of Europe in a bid to protest against the deadly ‘pushbacks exhibited by their host nations’ (InfoMigrants 2021). According to the migrants, they have been subjected to inhumane acts and believe it is high time various stakeholders came together and ensured that their fundamental human rights are upheld. It is estimated that 281 million which accounts for approximately 3.6% of the world population live outside their countries of origin(InfoMigrants 2021). It is high time that the international bodies take necessary measures to ensure that this large population is well catered for and that their fundamental human rights are upheld.

For a long time, the protection and rights accorded to the migrants have been heavily dependent on the treaties a state chose to ratify. However, this ununiform treatment has been a clear violation of the basic rights of these migrants and in some cases leading to the disappearance and death of some of these individuals. It is high time that the ICC intervenes to ensure that the migrant’s fundamental rights are safeguarded as per part 2 of the Rome Statute of the ICC 1998 (United Nations 1998).

International Laws safeguarding Migrants

Under International law, migrants have a right under their humanity. The migrants’ rights are both implicitly and explicitly highlighted in the International human rights and the public law instruments. The evaluation of migrants’ rights could be conducted either using a human rights-based approach or a rights-based approach (Goodwin-Gill 1989). The human rights-based approach focuses on the international human rights instruments. On the other hand, the rights-based approach goes further detailing the rights migrants are accorded by the human rights law and also through treaties and international public law including but not limited to;

• Humanitarian law,

• Refugee law,

• Labour law, and

• Transnational criminal law (Goodwin-Gill 1989).

According to part 2 of the International Criminal Court (ICC), the crimes against humanity have been well documented as falling within its jurisdiction (ICC 2021). In recent times, there have been massive reports of murder, forceful deportation, and even brutal treatment of illegal migrants. All these crimes are international human rights violations as documented in the ICC crimes against humanity. According to Article 7 part 2 of the ICC, the court has jurisdiction against aggression against migrants (ICC 2021). The ICC also reserves the jurisdiction to safeguard migrants in against;

a) Murder,

b) Torture,

c) Forceful transfer of persons (Deportation),

d) Inhumane acts that cause great suffering to both physical and mental health.

ICC Jurisdiction: Crimes Against Humanity

This brief will focus on two of the most rampant crimes that have been committed against individuals illegally found in the EU member states;

1. Forceful deportation,

2. Unlawful prosecution

According to Eilstrup-Sangiovanni (2021), the EU has a strong policy against illegal migrants and these have seen an increased case of pushbacks as these migrants try to penetrate foreign borders in search of more favorable conditions.

1. Forceful Expulsion of Migrants

The prohibition of the collective expulsion of aliens is part of customary international law and is bound to be adhered to by all states. American Convention, art. 22(9); ArCHR, art. 26(2); African Charter, art. 12(5); ICRMW art. 22(1). Article 22(1) of the ICRMW prohibits the collective expulsion of migrants and requires States to decide each migrant worker’s case individually (Immigration & Migrants’ Rights. 2021). According to Article 13 of the ICCPR documenting procedural expulsion of persons; collective expulsion of migrants could amount to a crime against humanity. The ICC reserves the mandate to prosecute any nation that forcefully and collectively expels migrants failing to observe due procedures (Kouvaras 2019). The crime of deportation could emanate from the forcible displacement of migrants within a country through physical force or coercion.

According to part 2 of the Rome Statute of the ICC deportation amounting to humanitarian violation is defined as; “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law” (ICC 2021). Forceful mass deportation of individuals without following due procedures could result in a crime against humanity and therefore necessitates the intervention of the ICC of Justice.

2. Unlawful Persecution

This is one of the regulations documented under part 2 of the ICC jurisdiction laws. According to the regulation, subjecting individuals to suffering is one of the international crimes. According to International Criminal Court (2013), it is against international criminal law to subject individuals to unlawful prosecution.

According to the ICC, humanitarian violations occur when an individual is subjected to both mental and physical suffering through methods that contravene international laws (Robinson 1999). Unlawful persecution is one of the most rampant humanitarian violations to which migrants are subjected. The Rome Statute defines persecution as, “The intentional and severe deprivation of fundamental rights contrary to international law because of the identity of the group or collectivity” (justice in conflict 2021). The general reference to humanitarian crimes denotes persecution as one of the most severe crimes that migrants have to endure. By virtue of definition, the ICC reserves the mandate to intervene in such cases especially where the fundamental human rights of individuals are infringed. According to the Nuremberg Charter, persecution falls under its distinct category as a major crime against humanity (International organization 1950). At the core of the persecution, crime is discrimination that offers a great distinction between how the citizens and their irregular migrants are prosecuted.

According to the American Convention, art. 7; African Charter, art. 6; ECHR, art. 5; ArCHR, art 14; ICCPR, art. 9, an individual should not be subjected to arbitrary arrest and prosecution. Article 9 of the ICCPR provides that before detention, a state should try other channels and an arrest method should only be adopted when inevitable (Immigration & Migrants’ Rights. 2021). It is an international crime to arbitrarily arrest individuals subjecting them to physical and mental torture. Such arrests and prosecution of migrants are perceived as discriminatory and are classified as crimes against humanity as per the Rome statute of the I CC (International Criminal Court 2013).

Conclusion

For the reasons stated above, the ICC should intervene in the migration woes and exercise its jurisdiction to ensure that the international migrants’ rights are not contravened as per the international laws.

DATED: August 2021

References

Ammaturo, F. 2018. Europe and whiteness: Challenges to European identity and European citizenship in light of Brexit and the ‘refugees/migrants crisis. European Journal of Social Theory 22(4), pp. 548-566. DOI: 10.1177/1368431018783318.

Amnesty International 2021. Going to court to protect the rights of refugees and migrants. Available at: https://www.amnesty.org/en/latest/research/2020/08/going-to-court-to-protect-the-rights-of-refugees-and-migrants/ [Accessed: 10 August 2021].

Eilstrup-Sangiovanni, M. 2021. Re-bordering Europe? Collective action barriers to ‘Fortress Europe’. Journal of European Public Policy 28(3), pp. 447-467. DOI: 10.1080/13501763.2021.1881585.

Goodwin-Gill, G. 1989. International Law and Human Rights: Trends Concerning International Migrants and Refugees. International Migration Review 23(3), p. 526. DOI: 10.2307/2546427.

Guarch-Rubio, M. et al. 2021. Violence and torture against migrants and refugees attempting to reach the European Union through Western Balkans. Torture Journal 30(3), pp. 67-83. DOI: 10.7146/torture.v30i3.120232.

ICC 2021. Welcome to the International Criminal Court. Available at: https://www.icc-cpi.int/ [Accessed: 9 August 2021].

Immigration & Migrants’ Rights. 2021. Available at: https://ijrcenter.org/thematic-research-guides/immigration-migrants-rights/ [Accessed: 10 August 2021].

InfoMigrants 2021. Migration to Europe in 2020: The year in pictures. Available at: https://www.infomigrants.net/en/post/29181/migration-to-europe-in-2020-the-year-in-pictures [Accessed: 10 August 2021].

International Criminal Court 2013. Rules of procedure and evidence. 2nd ed. Enschede: PrintPartners Ipskamp.

International organization 1950. 4. Principles of International Law of the Charter and Judgment of the Nuremberg Tribunal, Formulated by the International Law Commission, Second Session. International Organization 4(4), pp. 714-721. DOI: 10.1017/s002081830002974x.

justice in conflict 2021. Justice in Conflict. Available at: https://justiceinconflict.org/ [Accessed: 9 August 2021].

Kouvaras, I. 2019. Evidentiary Burden of Proof regarding Exclusion Grounds for Asylum: The Case of the Turkish Military Asylum Seekers in Greece. International Journal of Refugee Law 31(4), pp. 567-579. DOI: 10.1093/ijrl/eez031.

Migration. 2021. Available at: https://www.ecchr.eu/en/migration/ [Accessed: 10 August 2021].

Robinson, D. 1999. Defining “Crimes Against Humanity” at the Rome Conference. American Journal of International Law 93(1), pp. 43-57. DOI: 10.2307/2997955.

United Nations 1998. United Nations: Rome Statute Of the International Criminal Court. International Legal Materials 37(5), pp. 999-1069. DOI: 10.1017/s0020782900012420.

Weatherhead, K. 2018. Migrants, Irregular Migrants, or (Irregular) Migrants?. Anti-Trafficking Review (11). DOI: 10.14197/atr.201218118.