The Guidelines rest upon and repeatedly stress the importance of the Special Procedures of the UN Commission on Human Rights (OHCHR), including the UN Special Rapporteur on Human Rights Defenders and commit to use outputs and reporting from these Special Procedures to guide their own actions on protection for HRDs. The current Special Rapporteur, Mary Lawlor, in her first report in 2020, outlines migrants rights defenders (MRDs) as an area of priority for the duration of her mandate due to the high level of exposure to violent attacks and human rights violations that they have been faced with. In concordance with this, the first communication she issued in her position was to the Government of Greece regarding the detention of a MRD and the intimidation and criminalisation of NGOs working to provide humanitarian aid on the Greek islands. Mary Lawlor’s most recent report, ‘Refusing to turn away: human rights defenders working on the rights of refugees, migrants and asylum-seekers’, again brings into focus the situation of MRDs particularly in EU Member States (MS).
In spite of the repeated prioritisation of MRDs in EU MS under Mary Lawlor’s mandate, including in her recent country visit to Greece6, the Guidelines at the EU level retain a focus on HRDs outside of the bloc. All the provisions laid out in the Guidelines refer to actions that can be taken in third countries by EU Missions, Delegations and MS representatives. There is still no protection mechanism for HRDs working on the territories of EU MS, except for those outlined with reference to transnational attacks against Third Country National (TCN) HRDs who are residing on EU territory but still subject to reprisals by their home States.
BVMN puts forward the position that HRDs acting on the territory of EU MS must also be granted protection at an EU level and have access to the protection mechanisms presented in the Guidelines for HRDs from third countries. This should be done with a particular emphasis on MRDs working within EU MS.
In recent years, securitisation discourses have shifted the framing of migration as a human rights issue bound up with Cold War politics, to an issue of criminality and the fight against transnational organised crime. This has, in turn, led to an increasing overlap between criminal law and migration management at the transnational level in the European Union (EU) which is reflected by the increase in legislation governing the movement of people. Nothing reflects this phenomenon more clearly than the cases of strategic litigation brought against people-on-the-move (POM), and the lengthy prison sentences that accompany them. The criminalisation of movement in general has been in the focus of the Border Violence Monitoring Network’s (BVMN) advocacy work since its conception in 2017.
When analysing the relevant policy documents provided in the timeline above, there is a clear distinction between international human rights instruments at the UN level, and the ways in which such rights are provided for in EU legislation. In 2000 when the UN established the Convention Against Transnational Organised Crime, ratified by all EU Member States (MS), there was a clear emphasis on dividing the definitions and charges of ‘smuggling’ and ‘trafficking’ through the establishment of two separate protocols. Furthermore, the former protocol clearly outlined the rights of POM being smuggled and prohibited the criminalisation of individuals who were subject to smuggling. At the EU level, the distinctions between smuggling, trafficking, and illegal migration are ill-defined. The creation of an internal free market and free movement as put forth by the Schengen acquis required, inter alia, a commitment to strengthening the EU’s external borders as a means of protecting the internal body of MS. In fact, the offence of facilitation of illegal entry is first mentioned in Article 7 (1) of the Schengen Convention (1990). In 2002, the Facilitator’s Package furthered this agenda by putting forward the goal of the Commission to combat both illegal migration and the aiding of illegal migration. The package even stands in direct contradiction to the UN definition of smuggling; it doesn’t consider financial gain as intrinsic to this definition, simply an aggravating circumstance. Again, the mechanisms behind this are somewhat blurred with the terms used in the policy document such as ‘smuggling’, ‘financial gain’, and ‘humanitarian assistance’ left open and undefined, with full discretion being left to MS to decide how sanctions are transposed into national legislation (Article 3).
Summary and analysis of pushbacks and internal violence documented by BVMN during the month of September
In September, the Border Violence Monitoring Network (BVMN) shared 25 testimonies of pushbacks impacting 557 people-on-the-move (POM) across the Balkans and Greece. This report brings together first-hand testimonies from a range of countries in the region to look at the way European Union states and other actors are affecting systemic violence towards people crossing borders.
Since its inception, BVMN has collected 1,575 pushback testimonies, affecting an estimated 24,990 people (BVMN, 2022). During pushbacks, BVMN has noticed a trend of ongoing and systematic violations of the fundamental rights of people on the move, constituting serious violations of the EU Charter of Fundamental Rights in Frontex operational areas. BVMN seeks to bring to the Commission’s attention information with regard to potential fundamental rights violations perpetrated with the acquiescence, complicity, or knowledge of Frontex. Through this submission, BVMN seeks to show that Frontex’s mandate is not in full compliance with its 2019 Regulation and that an expansion of its mandate at the expense of accountability mechanisms has provided the Agency with more powers and a toxic culture of impunity.
The European Commission will address at the end of the consultation process, in particular, the evaluation criteria of effectiveness, efficiency, coherence, relevance, and EU added value. In the absence of criteria of respect for fundamental rights, BVMN seeks to submit evidence that Frontex is not compliant with its fundamental rights obligations and the Regulation leaves a large margin to the Agency to act with impunity.