Leaving Libya

As the unrest in Libya has intensified over the past week, so have the flows of foreigners out of the country. Those lucky enough to come from wealthy nations have been evacuated in droves, while poorer migrant workers have had to fend for themselves. Many of these workers have been targeted by Qaddafi's regime simply for being foreigners, making their already precarious situation even more dangerous. While most have fled by foot to Tunisia and Egypt, the spectre of migrant flows to Europe has placed increasing pressure on the common European migration system.
The International Organization for Migration estimates that there were as many as 1.5 million foreigners in Libya when the crisis began; several thousand were US citizens, most working in the energy industry. Unable to evacuate many of its citizens through the airport, the US government has also sent a ferry but its departure has been delayed by stormy seas. Turkey, which has mounted its most extensive evacuation effort to date, has so far brought 5,000 people to Turkey and continues to ferry its citizens out of Libya. The Italians, the Chinese, and the Jordanians have sent ships or planes to evacuate their nationals.
Just as Libya's booming construction industry and rich oil fields drew these foreigners to the country, it also drew poorer migrant workers, who have not received assistance from their governments. Even worse, many of these foreigners have been specifically targeted by Libyan government forces, as Qaddafi has blamed Egyptians and Tunisians for causing the violence. Those fleeing report seeing dozens of their co-nationals killed and others subject to violent attacks including rape and torture, yet complain that their governments have not stepped in to protect them. Sub-Saharan Africans living in Libya have been similarly targeted because Qaddafi's forces think they are mercenaries. A UNHCR spokeswoman stated that it's dangerous "just having a black face" in Libya right now.
Over 30,000 of these poorer migrants have fled on foot to Tunisia and Egypt. This flow has been comprised largely of Egyptians and Tunisians, though Chinese and others have also escaped. Of greater concern are the tens of thousands of South Asians and Sub-Saharan Africans working in Libya, only a handful of whom have made it out of the country. The most desperate have taken the 1,000 mile trek across the desert to Niger. The UNHCR has emphasized the importance of open borders as crucial to protection of not only the 8,000 recognized refugees in Libya but also those fleeing the violence. While Egypt and Tunisia have so far been amenable to such requests, Europe is a different story.
The Italians continue to scaremonger, claiming that as many as 300,000 to 1.5 million migrant workers in Libya could end up in Europe even though most have fled to Egypt and Tunisia. Other EU leaders from nations such as Austria, Belgium, and Germany (whose borders are unlikely to be faced with such influxes) have remained skeptical that such flows will materialize and unwilling to take steps to assist Italy in advance (apart from a FRONTEX mission to help with screening and funding for Italian boat patrols in the Mediterranean). The general consensus among northern European states seems to be that Italy can handle the 5,000 migrants they've received so far. Italy's response? Northern League leader Umberto Bossi said that if migrants arrive, they'll take matters into their own hands by sending them into other EU nations through the Schengen border-free system.
The southern European states with Mediterranean borders, including Cyprus, France, Malta, and Spain, joined Italy yesterday in requesting EU funds to assist with the influx and burden-sharing on the part of other EU countries; those discussions continued into the night yesterday. One can only hope that they will discontinue the "push-back" policies for those fleeing the violence in Libya and other North African states, and offer a genuine protection process for refugees and other vulnerable migrants.

Questioning hierarchies of harm

Many IntLawGrrls have gathered this morning to honor Judge Patricia Wald at our roundtable on "Women and International Criminal Law." I'll be participating in the first panel, entitled The Limits of International Criminal Law, and look forward to receiving comments on my paper, "Questioning Hierarchies of Harm: Women, Forced Migration, and International Criminal Law." It's available in full here; here's a preview of some of the ideas therein:

From the Akayesu case to the Revolutionary United Front decision, international criminal law has made great strides in addressing harm perpetrated against women in wartime. Though these doctrinal developments are laudable, the gendered structure of international criminal law diverts attention away from other significant harms that women endure as a result of armed conflict. In particular, international criminal law’s hierarchy of harm is deeply problematic. This hierarchy elevates crimes committed as part of a plan or pattern across political groups – for example, by members of one group against members of a second group on the other side of a political conflict, whether during war or otherwise – over equally serious forms of harm perpetrated randomly, often within political groups – for example, by men against women on the same side of a conflict. This approach is problematic because female forced migrants suffer serious harms that do not fall clearly within the framework of international criminal law. These harms include rape, sexual assault, and other forms of physical violence that are not part of a master criminal plan but are rather private and opportunistic harms enabled by situations of displacement.
Refugees and internally displaced women suffer extensive violence at the hands of husbands, boyfriends, family members, neighbors, aid workers, peacekeepers, and strangers, none of whom is acting at the behest of a state or militia or fulfilling an organizational master plan. Is the Rome Statute of the International Criminal Court applicable to these crimes? While the language of the statute does not provide an obvious basis for prosecuting opportunistic crimes against female forced migrants, international refugee law offers a potential avenue for interpreting international criminal law to cover such crimes. Even so, the fit is imperfect – perhaps unsurprisingly given that the law was created to address very different crimes. Beyond the limitations of international criminal law, a vacuum of accountability exists on several levels in situations of forced displacement. Female forced migrants cannot rely on their own governments, their host governments, and often even international humanitarian organizations to protect them against opportunistic violence.
Should international criminal law step into the void? One might argue that the purpose of international criminal law is to provide accountability for conflict-related harms that would not otherwise be addressed. From that perspective, redress for the myriad forms of violence suffered by female forced migrants – harms that usually fall outside of any legal accountability mechanisms – seems an important component of that goal. Similarly, if the central aim of international criminal law is to account for crimes of such severity that they can be considered to be harms against all humankind, violence against women in situations of displacement is so prevalent and destructive that its prosecution should be viewed as a significant component of this goal. Such a step would require quite serious reconstruction of international criminal law, namely expansion of its scope and restructuring of its focus.
It may be that a structure designed specifically to prevent and account for opportunistic violence against female forced migrants would be better equipped to perform that task. Criminal accountability might be better performed in national legal systems or informal justice systems created within camp environments. There are also solutions other than criminal accountability, such as human rights law, that might be more appropriate in addressing such harms. In the meantime, until a solution is found that places these “private” crimes on equal footing with “public” attacks currently prohibited by international criminal law, the serious and frequent harms suffered by forcibly displaced women will continue to be overlooked, relegated to the bottom of the hierarchy of harms.

On July 25

On this day in ...
... 1755 (255 years ago today), the British colonists in Halifax, Nova Scotia, decided to expel to expel their French-speaking counterparts, the Acadians, "and to disperse them among the English colonies on the Atlantic seaboard." The forced migration arose out of the refusal of the Acadians, who'd lived in the area since 1604, "to take an unqualified oath of allegiance to Britain." "Between 1755 and 1763, approximately 10 000 Acadians were deported," amid terror, burnings, starvation, and disease. Some Acadians took refuge elsewhere in Canada, including in indigenous communities. Others went back to France or to other colonies in North America, among them Louisiana, where Cajun culture persists to this day. (credit for sculpture of the subject of Henry Wadsworth Longfellow's poem Evangeline, about the Acadians' flight)

(Prior July 25 posts are here, here, and here.)

War's End

While many in Sri Lanka celebrated the recent end of the country's decades-long civil war, the impact of the war's bloody finale on displaced and migratory Sri Lankans is no cause for cheer. The violence perpetrated by the Sri Lankan goverment and the Liberation Tigers of Tamil Eelam (LTTE) in the last months of the war dramatically increased forced migration within and without Sri Lanka. In an interesting twist on the typical tale of civil war-spurred migration, Sri Lankan diaspora communities, many former refugees themselves, are marshalling their political voice in support of those fleeing the violence.
In the last few months of the war, nearly 300,000 internally displaced people, including 80,000 children, were forced out of their homes and are now interned in refugee camps. Such camps are generally dangerous places, particularly for women and children, who risk not only disease but also sexual violence. To make matters worse, the Sri Lankan government has blocked the Red Cross and the UN High Commissioner for Refugees from accessing some of these camps. For those able to escape Sri Lanka, the situation is equally grim; last week, fifty-five Sri Lankan asylum seekers whose boat drifted ashore in Indonesia (en route to Australia) went on hunger strike after being placed in prison.
These floating asylum seekers followed a well-worn path; throughout Sri Lanka's lengthy civil war, Tamils have fled in large numbers to Australia and Canada. In these two nations in particular, the diaspora have prospered and grown into a powerful political force. In Canada, Tamil leaders have asked the government to tell the Sri Lankan government that it must allow aid groups to access all refugees and that it should reach a political settlement with the Tamil minority. The Canadian government appears to have acceded to these requests, and has also been responsive to the diaspora's request to fast-track Tamil refugee applications. In Australia, where the war has resulted in violence between Sinhalese and Tamil communities, Tamil groups have requested that the government reinstate a humanitarian visa for Sri Lankans, a move that would minimize the dangers of illegal border-crossing.
So what impact will the unusually strong voice of the diaspora have on the war's end? If Tamil leaders abroad can leverage their political power in their nations of residence to successfully demand a political settlement from the Sri Lankan government, this power might prove a very valuable ingredient of long-term stability. It's also possible that the well-established Tamil diaspora might enable Sri Lankan Tamils to vote with their feet by emigrating, thus draining the island of its ethnic diversity -- a less appealing result. In the worst case scenario, if the government refuses to include Tamil interests in a political settlement, Tamils abroad might enable locals to resist such a decision and even revive the long-running ethnic conflict. We can only hope for the first outcome, in which case it will be interesting to see whether and when the Tamil diaspora might return to their native land.

Human insecurity: Climate-induced displacement and international law

(My thanks to IntLawGrrls for this opportunity to guest-post on my recent article respecting displacement and climate change.)

Climate change threatens to cause the displacement of millions of people from their homes. Shoreline erosion, coastal flooding, and the particular vulnerability of small islands to rising sea levels and increased severe weather events compromise their continued habitability, impacting upon agricultural viability, vital infrastructure and services, the stability of governance, and ultimately human settlement. Whereas some people will move within their own countries, others, especially from small island States, may need to relocate elsewhere.

At present, those displaced by climate change are not recognized in international law as an identifiable group whose rights are expressly articulated, or as a formal legal category of people in need of protection, on several counts:

► They do not fit the international legal definition of ‘refugee’, which requires individuals already outside their country of origin to show that they have a well-founded fear of persecution because of their race, religion, nationality, political opinion or membership of a particular social group. As a result, their rights, entitlements and protection options are uncertain in international law.

► There is no international agency, such as the United Nations High Commissioner for Refugees (UNHCR), with a specific mandate to assist them.

► While international human rights law protects fundamental rights, such as the right to life, livelihood, health and self-determination, and the right not to be subjected to cruel, inhuman or degrading treatment, only the last of these is currently recognized as giving rise to other States’ protection obligations under international law. It remains to be seen whether courts and legislators would be prepared to recognize climate-induced displacement on this CIDT basis.

International legal definitions are often narrow: ‘statelessness’, for example, refers to those who are denied a nationality, rather than to those whose State has become uninhabitable or physically disappeared. While humanitarian aid may enable some communities to mitigate and adapt to the effects of climate change, in other regions displacement seems inevitable.

Whether the displaced are regarded as people in need of international protection, or are permitted to migrate through prioritized labour or relocation schemes, it is important to think now about how States might best respond.

African Migration to Europe

President Geoge W. Bush’s trip to Africa last week (he visited Benin, Tanzania, Rwanda, Ghana, and Liberia) also stimulated some media attention on African migration to Europe. (At left, a 2007 photo of Bush with Liberian President Ellen Johnson-Sirleaf.)
African and European policymakers came together at an international conference in Accra, Ghana, to strategize on ways to prevent thousands of deaths and human rights abuses involved in irregular migration flows between the continents. (It's a problem about which IntLawGrrls previously posted here and here; also see report of a similar meeting held in Accra in 2005.)
Migration is not new, nor is it necessarily a “problem.” (See, e.g., a 2007 OECD Report arguing that migration can help improve economic standards in host countries as well as in countries of origin.) Scientists and historians attribute our ancestors' early migrations across Africa and beyond to survival strategies (in response to climate change, hunting patterns, or agricultural needs) and to the desire for conquest, trade, or exploration.
The reasons for contemporary African migrations are familiar: nomadic migrations to follow natural agricultural patterns or trading opportunities, displacement resulting from political persecution or instability, war, famine, or natural disaster.
The Accra conference also focuses on “irregular” economic migration to Europe and the loss of life and human rights abuses that accompany it. Intermittent news stories recount stories of overcrowded and rickety boats going down with dozens of African migrants; estimates put the number of such deaths at more than 1000 per year. Many migrants who arrive by boat come from North Africa. However, due in part to a previously liberal Libyan immigration policy and other recent events, migration from from sub-Saharan Africa is on the increase. Some make dangerous journeys across the Sahara in search of work in North Africa or to boat smugglers who will take them to islands off the mainland of Spain or Italy. More than 20,000 Africans made the boat passage to Italy in 2006 alone. The Migration Policy Institute estimates that 7 to 8 million African irregular migrants now live and work in Europe. No one really knows how many have died in the Sahara or on the seas.
Some migrants came from educational and economic backgrounds that allowed them (or their families) to save enough money for the trip. Others simply made their way the best they could.
Migration flows are often gendered in nature—based on the “push” from the home country and the “pull” from the host country. Women and children, for example, make up a large percentage of refugees escaping armed conflict. Male migration seems to predominate in the boat migration to Europe through North Africa.
The complexity of irregular migration status is often ignored by officials in host countries. “Economic migrants,” no matter how difficult their circumstances, are often disparaged and their economic and social rights marginalized. And many such “economic migrants” might also be political asylum seekers who have been persecuted in their home countries. According to the Oxford-based migration researcher Hein de Haas, human rights NGOs have criticized European and Libyan governments for violating the international legal principle of non-refoulement by returning asylum seekers to countries in which they might be tortured or persecuted.
Those who do make it become substantial economic supports for their own families and for home country economies. The World Bank estimates that remittances from African migrants (not all of whom leave the continent) can constitute a significant portion of a home country's GDP. (See World Bank Remittances Factbook 2008 and an AllAfrica.com article discussing the possibility of a World Bank sponsored Diaspora Remittance Investment Fund.
According to the BBC, the Accra conference prioritized two strategies:
1st, the policymakers plan to publicize the life-threatening risks of the migration itself as well as the alienating or abusive conditions many African migrants with irregular status experience while living and working abroad.
2d, conference delegates discussed proposals to increase legally authorized migration targets for African workers with specified skills. Instead of promoting the well-known “brain drain” in which the Global South exports nurses, doctors, and teachers to Europe and North America, some argued for ways to enhance “brain circulation” or “circular migration”—temporary labor migration of skilled workers. The latter approach is not based in altruism; some European countries face labor shortages in certain fields.
Publicizing the dangers is an important start. On the other hand, large-scale temporary work programs may be as controversial in Europe and Africa as they are in the United States. (See 2007 Council on Foreign Relations report on “circular migration.”) But such measures would not address the root causes of large-scale African migrations—the yawning economic and social development gap between Europe and Africa, political instability and the trade in small arms, as well as the human will to risk everything to ensure the survival of those we love.

(photo above right courtesy of Office of U.N. High Commissioner for Refugees)

Mbeki, Mugabe, and the Politics of Migration

In severe political crises, such as the one we see in Zimbabwe today, forced migrants often become enmeshed in complex political games, sometimes in unexpected ways. South Africa's Thabo Mbeki has been roundly criticized for his failure to impose sanctions against or even publicly condemn Zimbabwe's Robert Mugabe despite leadership so astronomically poor that last month saw inflation over 4500% and unemployment exceeding 80%. Earlier this year, the Southern African Development Community selected Mbeki to mediate between Mugabe and the opposition Movement for Democratic Change party. While Mbeki has kept details of the negotiation out of the media, rumors abound that he intends to set up a transitional government between Mugabe and the opposition. Critics are skeptical of the plan, which in any case comes too late for the estimated 3.4 million Zimbabweans, one quarter of the population, who have already fled the country. Despite severe obstacles including crocodiles and lions, thousands of Zimbabweans pour across the border into South Africa each week. But because Mbeki's government will not recognize the human rights abuses of Mugabe's regime, it refuses to protect these forced migrants, deporting almost 16,000 Zimbabweans each month. (Almost half of these deportees immediately turn around and try to re-enter South Africa, in some cases jumping off moving trains to avoid being returned to Zimbabwe.) And these numbers don't include the uncounted masses of Zimbabweans who remain in South Africa. Hard as it is to imagine, Zimbabwe's economy would be in even worse condition without the remittances sent by these forced migrants, who may be inadvertently propping up the Mugabe regime. In turn, this means that Mbeki's deportation policy, grounded in his refusal to recognize the human rights abuses perpetrated by Mugabe, likely has a negative impact on Zimbabwe's economy, similar to the sanctions that he refuses to impose. A newspaper run by Zimbabwean exiles goes so far as to speculate that if Mugabe fails to agree to Mbeki's transitional government proposal, South Africa will speed up mass deportations of Zimbabweans just before the 2008 elections in Zimbabwe in order to vote Mugabe out of office. Whether or not this particular tidbit is true, it is high time for Mbeki to stop playing political games and protect these forced migrants as South Africa's obligations under the UN and OAU refugee conventions require.

Immigration everywhere

Pundits in the States no doubt will devote this weekend to the demise of the immigration compromise that a bipartisan group of Senators'd cobbled together. We knew the bill was doomed when: opponents on 1 side dubbed it the Asian and Latino Exclusion Act of 2007; opponents on the other side broadcast 3 septuagenarians wandering 'round Arizona asking "Where's the Fence?"; and no one in the middle could find a good thing to say about the package as a whole.
Listening to the debate, you'd think that everyone in the world is trying to move to the United States. In reality, though, migration to, and from, the United States is part of a pattern playing out all over the planet.
Recent events in the Eastern Hemisphere stand as reminders that larger truth. 1st, a "Spanish tug collected a group of 26 migrants in distress within Libya’s search and rescue zone and while the Armed Forces of Malta had supplied humanitarian aid to the vessel, permission to land the migrants in Malta was apparently denied on the basis that rescue had been undertaken outside Malta’s search and rescue zone." Then "27 shipwrecked Africans" clung for days "to tuna nets in the Mediterranean while Malta and Libya argued over who should rescue them." Not long after their rescue by the Italian Navy, a "French Navy ship found 18 bodies floating south of Malta." Days earlier, Maltese authorities'd "lost contact with a boat that was photographed carrying 53 African migrants."
The predictable response to the tragedies? Fingerpointing. Spanish immigration secretary María Consuelo Rumí (right) announced that Spain's filed a complaint against Malta respecting the 1st incident. The European Commissioner responsible for migration matterss said Malta's "failing to meet its international responsibilities to save lives at sea." Maltese officials' retort: the European Union's reneged on its promises to patrol boats headed to Malta, an island state of 400,000 people where 2,000 Africans landed last year. That's 6 times more "illegal migrants than, say, the Netherlands."
There, here, and elsewhere, it's time not only for the "burden-sharing" of which all Europeans seem to speak, but also for a migration policy that is fair and humane and that, like migration itself, spans the globe.