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June 21, 2012 Open Society Justice Initiative
The United Nations Committee Against Torture (UNCAT) has recently added its voice to the range of bodies that have reminded European Union countries that their efforts to prevent migrants and asylum seekers from entering “Fortress Europe” must respect international human rights. In its Sonko v. Spain ruling last November, UNCAT examined claims that Spanish officials had deliberately failed to protect the life of a migrant and rendered a decision in support of migrants’ rights.
The case was brought by the sister of a Senegalese man, Lauding Sonko, who died in 2007 while trying to enter Spanish territory by sea. On the night of September 26, Sonko and three others attempted to enter Ceuta, the Spanish enclave on the North African coast surrounded by Moroccan territory, by swimming along the coast assisted by inflatable dinghies. According to survivors, at about 5:05 a.m., a Spanish Civil Guard vessel intercepted the migrants, and brought them on board. The Spanish Civil Guard picked them up near a Moroccan beach, and, after puncturing their dinghies, forced them to jump back into the water at a place where the water was too high for them to stand.
Sonko could not swim, but was nevertheless forced into the water and left to flounder. The Civil Guard officers ignored his calls for help. By the time one eventually jumped into the water, brought him to shore and attempted to resuscitate him, it was too late. Sonko was buried in an unmarked grave in Ceuta.
Spain’s examination of Sonko’s death was shelved in 2009, after a very brief investigation that consisted of taking statements from five witnesses, none of whom were survivors, and accepting the volunteered statement of one survivor. No one in Sonko’s family was notified of the Spanish investigation until 16 months after it began, and they were never party to the legal proceedings.
Spain’s conduct demonstrated the minimal value it placed on Sonko’s life, and UNCAT found that it violated the Convention Against Torture (CAT). UNCAT held that Sonko was “placed in a situation that caused his death” by the Spanish Civil Guard officers who forced him into the water, and that this exceeded the threshold of cruel, inhuman or degrading treatment, in violation of Article 16 of the CAT. However, although UNCAT recognized that Sonko was in a particularly vulnerable position as a migrant, and that this would have aggravated his suffering, it did not rise to the level of torture. Nevertheless, based on the extremely limited nature of Spain’s investigation into Sonko’s death, UNCAT also held that Spain had also failed to undertake a prompt and full investigation into the incident, in violation of CAT Article 12.
The ruling echoes the recent decision of the European Court of Human Rights in Hirsi v. Italy. In that decision, the court ruled that where ships of a Council of Europe state intercept migrants at sea and bring them on board, the flag state of the intercepting ship assumes responsibility for those migrants, and the migrants come under protection of the European Convention on Human Rights. It is now clear that the UN and European human rights systems have spoken with one voice, affirming that states cannot shirk their basic human rights obligations in order to prevent migrants from entering their territory by simply moving those operations out from their border to the sea.
The issue of state responsibility for the lives of migrants at sea raised by this case remains vitally important, given that approximately 1,500 migrants died in the Mediterranean while trying to reach European shores in 2011, according to the UN High Commissioner for Refugees. This was the highest number of deaths since the UNHCR started keeping such statistics in 2006. The most egregious example of a failure to respond to obligations to assist migrants in trouble occurred in March 2011, during the Nato air campaign against Libya, when Nato naval failed to rescue a boat of 72 migrants, leading to the death of 63.
In a step towards preventing serious violations of the human rights of migrants, the European Court of Human Rights (ECHR) recently decided in Hirsi v. Italy that where ships of a Council of Europe state intercept migrants at sea and bring them on board, the flag state of the intercepting ship assumes responsibility for those migrants, and the migrants come under protection of the European Convention on Human Rights.
A summary of Sonko v. Spain is now available on the Open Society Justice Initiative’s website, together with summaries of all other decisions on individual communications taken by the UN Committee against Torture at its 47th session. The Justice Initiative is providing these digests to bring the decisions of global human rights tribunals to the widest possible audience.