Europe’s Border Crimes: Bridging the Impunity Gap for the Enforced Disappearance of Migrants in the Mediterranean Graveyard

Guest post by Pat Rubio Bertran, Program Lead at the civil search and rescue NGO Refugee Rescue. Pat holds an LLM in Human Rights Law, where she specialised in legal research and advocacy regarding migration and border violence.

In the past decade, over half of the border deaths, globally, happened in Europe. Only in 2021, over 1,864 people have died or gone missing in the Mediterranean sea, attempting to reach Europe. In addition, over 4,016 victims have been recorded on the Atlantic route to the Canary Islands, Spain. According to the International Organisation for Migration (IOM), the true number of fatalities and disappearances is “undoubtedly higher” as most deaths are not officially recorded. The number of fatalities at sea sometimes leaves out the fact that most border deaths are actually disappearances. For example, only on the sea routes to Spain, 94,89% of the dead are actually disappeared, as their bodies and identities have not been recovered. These deaths and disappearances have not pushed European states to set up policies of justice or reparation, on the contrary, Europe has continued investing in policies of deterrence and mobility control.

Drawing on my Master's dissertation, this post explores, through international criminal law, a way of reclaiming victimhood status for people on the move by demonstrating that European actors are the perpetrators of crimes, not migrants. In particular, I assess how criminal liability can help bridge the impunity gap for the death and disappearances of migrants in the Mediterranean, by framing them as enforced disappearances as defined under Article 7 of the Rome Statute of the International Criminal Court (ICC).

Necropolitics: Protecting the “European Way of Life”

In 2019, Ursula Von der Leyen, President of the European Commission, decided to change the title of the migration commissioner to “Vice-President for protecting our European way of life”. To create a bonded community, EUrope uses racist and xenophobic discourses to fabricate an “imagined shared identity” and endorse the idea that migrants and refugees are a threat to Europe and the so-called European “lifestyle”. This change also justifies preventive measures that block access to Europe. In the context of deaths and disappearances in the Mediterranean, mainstream discourses continue to uphold the belief that the fates of migrants at Europe’s borders are a consequence of their criminal actions. Framing migration under an illegality framework contextualises border deaths as a kind of a “passive capital punishment”. The result of this is that thousands of racialised persons dying and disappearing at Europe’s borders do not seem like tragedies we can avoid, creating zero guilt or remorse. To challenge this framework we need to uncover the violence within these normalised and legitimised border practices.

Enforced disappearances in the Mediterranean

The Rome Statute of the ICC outlined the crime of enforced disappearance in Article 7, paragraph 1(i) and defined the crime in paragraph 2(i) as:

“the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”.

As provided in the Elements of Crimes of the ICC, a person might be liable if they deprived someone of liberty and refused to acknowledge it, or if they refused to disclose information on the fate of those missing. However, while the perpetrator does not need to fulfill both types of conduct, they need to be aware of the context, of the fact that they are acting as part of a “widespread or systematic attack against a civilian population”.

At sea, Europe has created a legally ambiguous space, similar to that in detention sites and carceral facilities. The EU’s strategies to “deter, capture, and contain” migrants have turned the Mediterranean Sea into what Maurice Stierl refers to as a “carceral seascape”, where migrants disappear and die. For example, Frontex, the European Border and Coastguard Agency, replaced its ships with airborne operations and surveillance drones above the Libyan coast, which live-stream images to their Warsaw headquarters. These operations suggest that the EU is fully aware of most migrant boats leaving the coast of Africa, as well as of most shipwrecks and distress cases. However, the main policy, according to survivor testimonies, is that of non-assistance. In this way, Europe holds the monopoly on “what is visible, by whom and under what conditions” and survivor testimonies become key as they are, most of the time, the only ones able to account for the events that occurred at sea.

Europe does not only fail to account for the number of dead and missing migrants, but it also refuses to do its best to identify the victims. The information on shipwrecks in the Mediterranean is scarce and inconsistent, as Europe has not set up an official system for collecting and publishing accurate data on mass tragedies in the Mediterranean. Such tactics not only contribute to failing to count these deaths and disappearances as crimes but even to count them as deaths. This lack of accountability delegitimises the pain and lived experiences of the victims’ families and communities. Thus, the border is created and maintained as an instrument to deny both, the death of the person as well as a dignified and decent goodbye for their families and communities.

International Criminal Law as a remedy for border violence

Europe’s tactics at sea have proven to be effective since deaths and disappearances happen daily but completely off the public radar and any official system of justice or accountability. Framing border violence as an international crime can present an opportunity to document the “systematic and structural effects of transnational migration control”. As shown through extensive research, border deaths and disappearances are part of the industry of movement control, tied to security and war industries. The collaboration of State actors, governments, and for-profit organisations has created a whole new market in the enforcement of border violence. Under the Rome Statute, company directors, executives, and employees could be prosecuted, making for-profit industry workers responsible for international crimes. However, international law is known for the role it has played in maintaining systems of racial domination and imperialism. In that sense, it can be that justice can only be achieved through a decolonial project, “envisioning new legal principles capable of achieving reparations”.

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How to cite this blog post (Harvard style) 

Rubio Bertran, P. (2022) Europe’s Border Crimes: Bridging the Impunity Gap for the Enforced Disappearance of Migrants in the Mediterranean Graveyard. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/04/europes-border [date]