Hello everyone. Welcome to our last lecture in the lecture series on Business and Human
Rights for this year, not for this semester, only for this year. So we'll continue in January.
It's my very pleasure today to welcome Grażyna Baranowska from the Herty School in Berlin.
Grażyna is a researcher who started her career, so to say, with her PhD on Enforced Disappearances.
And from that topic, so to say, then had a journey through a work on memory loss to now come to the
topic of missing migrants, which will be part of the lecture that she will be giving to us today.
She's at the moment a postdoctoral fellow funded through the Marie Curie program at the Herthe
School of Governance in Berlin, and more specifically at the Center for Fundamental Rights there.
She has also been an advisor on Enforced Disappearances for the German Center for the
Institute for Human Rights, and she's also an assistant professor
for the Academy of Science in Poland. And I'm very, very happy and very glad,
and of course also very honored that you're here, and I'm also very much looking forward to your
presentation and our discussion afterwards. Thanks for being with us, and the floor is yours.
Thank you. Thank you for having me, and it's really a pleasure to be here and to be able to
present some of my research and to get looking forward to get your questions and feedback and
discuss with you more. So the topic of my today's presentation is the human rights of migrants,
missing migrants in Europe and the role of business. And so let me try to fix that or not.
So, okay, there we are. So this is, it works. So it was enough that you came, apparently.
So the project that I'm currently working on and the beginning of which I am presenting today is,
the full name is Missing Migrants, Identifying and Shaping Obligations for Protection,
and the short acronym is NURO. It's funded by the European Union under the Marie Krzywowska
action, and I just started it recently in September, and it's going to last between
a half years. And here on the slide, you also see the basic goals of the projects I'm looking for,
obligations of state and international organization with regards to migrants that go missing
specifically in Europe, so on the way to reach the European Union or inside the European Union.
So today I will start with trying to discuss a bit who are missing migrants. So this is a term
that's actually widely used both in law and especially by policymakers, but who are they,
really what are we talking about, especially from a legal perspective. The second part of my
presentation today, I will talk about kind of a bit about state versus non-state actors
and missing migrants. So it will be divided into three parts. I will start with states, international
organization, and then non-state actors in various aspects. And then the third part of my presentation
will be specifically about businesses that I will also touch a bit upon in the first two parts when
relevant. So starting with the first part, who are missing migrants? So when I'm asked this question,
kind of what I like to start off with is that this is a term which is not defined and it consists of
two terms that are not defined because missing persons are not defined and migrants are not
defined. So basically we have a very non-defined term and this leads us really asking a lot of
questions. And even though this is a really very undefined term, it is present in highly important
documents. So we have it in the global compact. So Objective 8 specifically talks about missing
migrants and here's the part kind of introduction to it which also kind of points how missing
migrants are perceived, that there's an obligation that is perceived with regard to them, that the
families and the surge is kind of in the center of it. So the Objective 8 points us to kind of some
form of interpretation but also does not say us who missing migrants are. And the same is with the
European Parliament which has adopted numerous resolutions on missing migrants, like losing the
term without defining it and it can really apply to different people. So there was a resolution
recently on children concerning missing migrants or missing migrant children. There was a resolution
and this is not all of them but there was a resolution on identification of remains at the
borders of the European Union and it was a resolution that's long ago from 2012 but which
I singled out because it specifically talked about the right to truth of families of missing migrants.
So if we're talking about the right of the families that implies that we're talking about
a certain group that has the right to do that and kind of what I'm questioning when looking at the
term is whether we can talk about something like the right of the families of missing migrants
when we don't have this term really figured out. Then there are international organizations that
have specific programs on missing migrants and actually those programs are also aimed
at different groups of people. So the IOM has a missing migrant program which is set up to
collect data mostly on people that have died on borders. So it's a data collecting program
but it does not collect data on everyone that we would consider to be a missing migrant only those
that have died mostly on border crossing and while this is really amazingly explained on the
webpage the numbers that the IOM is producing is actually used by other actors as the number
of missing migrants which is in itself quite problematic. And here on the right side I will
from time to time point you to some literature that I found interesting on the topic and I will
try to say two sentences about every article that I post here. So here are two articles that are very
critical of the IOM program and what I found very interesting in both of them is that they show
that data collection before was done by NGOs and as the IOM kind of took over this aim of collecting
data the whole issue became depoliticized. So the NGOs collected the data kind of to bring forward
an agenda while the IOM is collecting the data without looking at the sources and the reasons
for people going missing. So the whole data collection issue has become in different aspect
because the IOM took that over from NGOs. So those kind of the two it's a chapter and an article and
they're both very interesting and kind of framing that and looking at the process how that has happened.
Then the next organization that has a missing migrant program is the ICRC
and it's a very different program because it's basically aiming at connecting people. So connecting
information between families and migrants that go missing and the clue in the ICRC on missing
migrants have actually national organizations so the ICRC headquarters are only cooperating a bit
and trying kind of to keep it together. So it's more what the national organization do than on
an international level. Then there is an ICMP which is an organization a treaty-based organization
that deals with missing persons and it also has a program interestingly on missing migrants and
refugees so this is the only program that has refugees also in the name and it also connects
people a bit. It does also DNA testing so kind of the scope of action of the ICMP missing migrant
and refugee program is different than the two others that I talked about. So now conceptually who I
believe who I think are missing migrants. So I would start kind of with this very broad notion
and all those whose whereabouts remain unknown and kind of in the back head are remain unknown
to their families. I do not include that in the definition because a person might be unknown to
someone from the family and the whereabouts might not be unknown to someone else so this is also not
really it's there's still questions to be asked kind of to that state and who is covered by this
under this broad term. So those that have died and whose bodies have not been recovered
and whose bodies cannot be recovered so for example shipwrecks in the open sea that
that are boys that will never be recovered and identified and this is kind of humanly impossible
to do. It's also people that have died but whose bodies were recovered but were not identified.
So those are two groups first that they were so much decomposed that it was not possible to
identify them and that kind of moves back to the first area so those efforts can be done to identify
those people and the second group are those that have been buried and identified graves
and unfortunately this is actually practice happening at European Union borders so this is
kind of migrants that remain missing although their bodies have been found and then those
that for their are alive but for various reasons cannot be identified and those will be mostly
small children that have lost cannot explain where they come from and so on. It's also people with
mental disabilities or PTSD after the the traveling and things like that so this is
kind of also people that whose whereabouts would remain unknown to their families.
And then those that went missing due to the action of others so here the action of state that would
be then victims of enforced appearance of secret detention and so on but also of non-state actors
and that would then also include businesses so this is also a group where there is
a human rights violation or a crime involved and that's why they went missing.
Then there might be migrants could be missing because they are in detention without the
possibility of communication so they're still alive in prison but cannot for some reason
communicate with their families and those reasons there can be many reasons for that.
And last not least those that choose not to be in touch with their families so this is also a group
that would fall into the group of missing migrants so kind of we're talking about this huge group and
very diversified and depending on the situation itself there might be different obligations so
the ones that are involved and highlighted are the ones where in my opinion there is the most
clear obligation under international law so if we go to children there are many provisions what
should be done and that their identity should be restored. Of course all human rights violations
and crimes there's also clear responsibility and actions that need to be taken those in detention
nobody can be kept in detention without the possibility of contact so here are very clear
kind of actions and international law is clear. Then I highlighted two where in some certain
situation international law would be clear but not in all so one is there is an obligation in
certain contexts to recover bodies so here this could be something that could be raised but not
in every situation and the same with unmarked graves so here is an argument to be made that
people cannot be buried in unmarked graves if the state can identify the person. So kind of I did
that exercise to show you that there's really the kind of obligation that we're talking about really
depends on the circumstances of the missing and as we look at the missing migrant very often we
do not really know the circumstance of the missing so this is really kind of an intellectual exercise
to think about how to approach a diverse group where different obligations might arise and here
also a small article recommendation it's an article on identifying the bodies at the shores
of the European Union and it really shows and proves that the bodies of migrants are rationalized
and in the same area where white bodies are found they are identified and when bodies are found that
are considered to be of migrants they're not identified and this is an article from 2016 but
I do not expect that the situation has changed much since. So now moving kind of to the actors
and trying to aim at responsibility or what exactly can be done and what is actually done.
So starting off with me starting off with states
there are three clear obligations with regard to all missing migrants so kind of
without the necessity to look at the sources of migration. So states have to prevent people
from going missing at least in their jurisdiction so this is kind of what and if there is a strong
belief that a person should go in this circumstances there would be the possibility of the person to go
missing then there's the obligation to prevent that. Here of course the problem is with border
regions and between countries on the high sea and so on kind of in the jurisdiction there's really
human rights is quite clear. There is the obligation to establish a faith so that would
cover the search and identifying bodies and inform families and here the question arises what with
families that are not in the territory of the state that has jurisdiction and here are different
legal arguments to be made for different approaches. Then there is clearly responsibility for
a relevant human rights violation so in person appearances family separation especially in the
US so that those would be kind of really to come back from human rights and this is I think quite
clear. In certain contexts there will also be responsibility for disappearances by non-state
actors so especially there's a responsibility by the state of preventing so if the state should
have known then there is a responsibility by the state. The states are kind of trying to get out
of the responsibility for those actions by outsourcing certain migration practices in which
migrants go missing and this outsourcing goes to different actors so we have state actors where
this responsible kind of actions are outsourced so the European Union signs agreements or different
European Union states with other neighboring states on migration and then the states are
performing certain actions which the European Union is not but also non-state actors so most
states that we know have some private companies involved in some forms of migration management
and those are also form of outsourcing that might make a more complicated to point to state
responsibility and extraterritorial migration management is of course also part of that
and attributing the responsibility of actions made by non-state actors and international
organization or other states to certain states is really a challenge kind of and there's a lot of
research and strategic litigation going into that part of the question. So this slide has the most
reading recommendations because there's actually most research on this issue so the first
article is by Gabriel Cittroni and it's an article on how Mexico has dealt with missing migrants
by establishing different national laws that apply depending whether a person was possibly
disappeared or not and it's really interesting to see how something that might actually be
in line with international law plays out bad on the ground because that's kind of the thesis
and what is shown in the article and I think it's specifically relevant for missing migrants where
the sources are not clear and will never be clear and then looking specifically at enforced
appearances there's an article by Bernan Duhayn on enforced disappearances in migration and
I also put in here a report that I did on enforced disappearances and the international
convention on enforced disappearances which is a bit more in detail but also specifically about
the convention itself why the article is more also on case law and on other things that deal with
enforced appearance in migration. While I will not talk about that in the presentation a huge
issue with regard to missing migrants are of course vote migrants that go missing on
vote routes and here I would recommend this article by Itamar Mann on the law of the sea
and the last article is very interesting on framing so in this article the authors argue that
state use kidnapping as a form of deterrence at border regions and the example in the US is
family separation and kind of that they frame the family separation policy as kidnapping because the
children are separated and the arguments are actually quite good in the article and then the
kidnapping kind of in the European example is with regard to what is going on in Libya informed by
what the EU knows what is going on in Libya so it's really kind of interesting how you can talk
about different things and migrants going missing in different areas you can use different terms
on that and kidnapping is one of the terms that is proposed here on that and the argument in this
article is that kidnapping is a form of deterrence and that is how it's used. So now moving on to
international organizations as I've tried to show in the first part there are actually many actions
that international organizations already do so they're engaged in data collection so that's the
IOM identifying in DNA collection that's the ICMP and facilitating contacts as ICRC. All of those
organizations also work on standards so they regularly publish reports what states should do
and facilitate contact between states especially here the Mediterranean is something that has been
done a lot on so they bring together states from the Mediterranean region to discuss and to propose
some standards or new guidelines how to deal with missing migrants in this area of the world.
So looking now at responsibility if we think about when can a international organization be found to
be responsible for a migrant going missing so I would say that's three specific situations so first
there could be when it's either itself running a detention center or involved in running a detention
center and people go missing within this detention center there is a clear link in my opinion to be
made with the actions of the international organization secondly if the organization is
involved in pushbacks and the person pushed back disappears then there's also in my opinion
a link to be made and thirdly when it serves as a so this is the most specific situation where it
serves as a basic administration function of the state and here the example is UNIG which did such
functions in Kosovo and there was a human rights advisory panel which functioned
semi-court and it actually found that UNIG was responsible for clearing disappearances that had
happened before UNIG became this interim administration and found UNIG responsible for
not doing that so this is kind of a clear link that a state an international organization would
in such a situation need to clear also in situations of missing migrants or at least search for them
inform the families actually the human rights advisory panel has been very specific on what
UNIG should have done with regard to that so it's kind of a great source of looking what
what can be done and should be done. So it doesn't work again okay and then coming back to the boat
situation there is in the UN there is a working group on enforcement and voluntary disappearances
and one of the issues that it does people can submit information to the working group
search requests and then the working group gives out the press back to states and that's really
kind of in demand of the working group and when provided with a request of a family of people that
went missing after they were pushed back kind of by Frontex the working group brought this request
not only to Italy but also to Frontex and I think it's really also a strong signal and information
that the working group believes that also Frontex has information on those people might have
information and they might also rise some form of responsibility and actually Frontex replied to
this request and send information to the working group which the working group found were not
sufficient and Frontex did not deliver more but this is kind of shows an engagement of an
international organization on missing migrants basically because this is not an aspect of an
enforcement appearance most likely. Now so here my article recommendations is first this is a
really interesting article on Australia that finances the IOM actions in Indonesia for Indonesia
to deter or have a certain migration policy that would keep people away from Australia
and it's really interesting kind of so the argument in the article is that Australia
specifically financing programs by the IOM that have a certain role in Indonesia so those that
are aimed at migrants and not those that are in the refugees and this is one of the things and
it's really it's also an easy read but it's really recommendable if you're interested in that.
So then there is an article on specifically on Frontex and how Frontex could be held liable for
border actions and this is very EU specific so if you're interested in EU law even not only
Frontex that might also be something interesting for you. Frontex is actually there's a case
brought to the court in Luxembourg with regard to pushback performed by Frontex so this is a news
article and that I found kind of interesting it's also interesting to see how the court will respond
to that issue and last but not least this is a chapter that where I look into the human
rights advisory panel and how it has assessed so that's the body in Kosovo how it has assessed
the responsibility and the actions that UNMEK should have done with regard to those people that
were disappeared and again they were not disappeared by UNMEK itself they were
disappeared before UNMEK took power but there were obligations to look into that so that might be
actually the situation with regard to missing migrants where many states are not really would
not be responsible for that but I'd need to do a search and also if a migrant was went missing
because of business activities that could also play play in in that situation. So now the the
last section on on that part the non-state actors and so there are actually many non-state actors
are involved in disappearing migrants so the very classical example is Libya where non-state actors
in Libya are disappearing migrants on a widespread manner and then they are de facto authorities in
Ukraine that are also disappearing people so that's another non-state actor which
which is we're just doing that and they're organized criminal groups that are disappearing
people in Mexico and they are mostly disappearing migrants so out of those three groups we have two
like strong actors that are responsible for disappearing migrants. Then there's the issue
of enforced disappearance so in international human rights law they can enforce appearances can
be committed only by states so this is kind of at the heart of of enforced appearances.
However the lowest kind of form of support by the state is acquiescence so if an enforced
appearance is committed by non-state actors but the state shows acquiescence with regard to this
disappearance then it's an enforced appearance and the state is also responsible for that.
Assessing acquiescence is of course a case-to-case issue. Under international criminal law it can
also be committed by state not only by states but also by political organizations which are however
mostly armed national liberation groups separatists rebels political parties so there's also a question
like what would which group exactly could commit and force appearances under international criminal
and I will come back to that in the last slide of my presentation. And with regard to international
criminal law what I think is a really interesting development is that with regard to Libya the ICC
prosecutor says that she's also looking into violence perpetrated against migrants which is
not specifically mentioning disappearing migrants but this is really one of the major issues that
is happening in Libya with regard to migrants so this might also be one of the things that comes
out of the process with regard to Libya and that would be really interesting looking like at the
connection of non-state actors, state actors, migrants going missing in the in the column of
criminal law. And while it doesn't really fit this slide I wasn't sure where to put that information
in another place but I think it's really interesting to follow there is a there was a submission to the
ICC on Australia migration policies as a crime against humanity it was not accepted in the end
but it's a really interesting submission and it kind of shows how Australia's migration policies
that are very specific can be framed and the arguments put forward in the submission are
actually really interesting and good and I think it's if you're interested in criminal law that
might be something worth kind of checking out and looking at. So the first I think recommendation
here on reading is specifically on this case actually it's on criminal law and Australia
and the second one is on Mexico and this goes more into the non-state actors so they are
basically mafias in Mexico are widespread disappearing migrants for various reasons most
of them are eventually killed and the argument in this paper is when and under which circumstances
can we make a state responsible for that and that the actions in Mexico are that widespread
that the Mexican authorities cannot say that they're not involved in that even if it's done
through the hands of a non-state actors and kind of this argumentation could be mirrored with regard
to Libya as well kind of so this is really something that could be could be. So now moving
to businesses and missing migrants so what is kind of the connection that we can make here
and where do we see our businesses or could businesses be relevant in this context and
before I go into that I would like to remind you of that this is really a white group so with
respect to some missing migrants businesses will never be relevant like with those migrants that
do not want to contact their families this is not really relevant but with almost any other category
that we have there could be some implication of businesses so it's really kind of a case specific
thing and it might be relevant in some case and in another not. So starting with the involvement
of private non-state actors immigration control which is really a widespread practice as we know
and there is this is really kind of what the the undirect privatization as has been called is really
a long-lasting thing so it's not a development I think over the last years we have talked more
about it because of artificial intelligence and other things being used at borders themselves but
it's really a process that's had been going on for quite some time so it's not a new a new development
and some examples of those forms of privatization are carrier sanctions so the sanctions on airlines
that bring in someone that should not be brought in and it's also the implementation of visa policies
and and those two issues would be kind of actually hard to connect to responsibility of
of like per se but it is clear that migrants go missing because of those
those policies so because they cannot enter a plane they choose a different route and that's
why they disappear they go missing so kind of where there's no responsibility link there's a
clear link and causal effect of of migrants going missing with the second two things that could be
in my opinion depending on of course what they do a more clear responsibility link being made so
with heading security checks at the borders depending on what the the companies do at the
borders that might be in violation of law and I mean we know what is happening on borders and
also state officials are very often violating laws so this is this is where responsibility would arise
and implementing immigration detention so that's kind of the most opaque issue that is happening
we talked earlier a bit about private prisons so that's kind of exactly what to where the slippery
slope really starts and deportation and removal is kind of the same the same thing so the very
specific issue and not all of the businesses fell into that category are something that is called
private military and security companies and their action is kind of specifically relevant and
important in migration management and some of what they do is they do research and security
dimensions of migration but this research of course is done for certain goals as well so this
is this this can be also highly problematic providing security service for reception and
transfer centers so this is not like running a transfer center but providing services in there
and here they of course operate on guidance and agreements signed with the state and last not
least providing and managing border technology infrastructure accommodation food cash backs
refuge and asylum seekers so this can really be a very small kind of service provided where where
the business is involved or it might be an overall running detention center overall running of the
of the of the entire operation and depending on that and what is actually has happened that the
migrants are missing their responsibility and the actions claimed would be would be of first
so here what would clearly play out would be due diligence and here it would be important for to
ensure to ensure that a company assesses actual potential adverse impact so first the assessment
secondly taking actions thirdly tracking and communicating the actions of stakeholders and
contributing if relevant to remedy in them so this is really what each company involved in those
actions should should be doing however how that plays out kind of in practice again is then a case
to case issue and here the the guiding principles could be of relevance as well and one of the
papers that i will recommend a bit is exactly on the guiding principles and kind of how they play
out in the migration control i'm looking in because there was a question on the guiding principles
from online exactly okay so and so the first article that i'm recommending is beyond the
governance gap by diana leviti and it's uh it's really looking at accountability per se and how
that could be legally uh legally you saw that um yeah that was one article that i'm recommending
okay so and this here i'm starting with the combination because actually this slide is based
on this paper and it's uh because i'm not an expert on australia and this is a really
fascinating case concerning australia so gabby are wholly published last year an article on
strategic litigation in australia and specifically on a company involved in an attention center
so the facts are that australia has something that's called regional processing centers and the
services in those centers so not the service the service itself but the services provided in those
centers are contracted out to service and security providers so to private companies and um what is
interesting in that context is that there's actually a law in australia law that disclosing
information observed in those centers by employees or in subcontractors so both by people that work
in the companies and the companies itself is a criminal offense punishable by harsh penalties
so it's really kind of hard to get information and to bring those cases forward and the the second
and problematic issue kind of which makes it hard to bring this case forward which made it hard is
that there's actually no direct cause of action for violation of human rights standards under
australian law and the courts can accept jurisdictional claims concerning extra territorial
human rights violations framed as civil suits it's extra territorial because the centers are not in
australia itself they are on islands that are non-australia so this is kind of what the legal
argument that needs to be made so basically the human rights violations need to be framed as
court claims so it's not human rights violations towards claims that's the the case so the case that
actually was more or less successfully brought forward is called um commissi versus the commonwealth
and it's an iranian national he was detained after during his attempt to travel to australia for
from indonesia to ask for asylum i think he was for a couple days in australia and then he was
transferred to a detention center where she was for 11 months and the the conditions in the
detention center were fears and we would claim them a call him as human rights violation amounting
to inhuman treatment and and there are many specifics in that case what has happened also
in those detention centers and and what's interesting is that the case was brought both
against australia and company and two companies that um that were service providers during his
time at the reception center that were there so for some unfortunately for him but unfortunately
from a legal perspective the the the case closed with a settlement without admission of liability
so it kind of does not bring us forward with regard to both liability of the contractors and
of australia but the people that brought the case got to settlement so that's that's that's more
or less the end of of the story it does show however possibilities kind of to bring it forward
and the argumentation was also accepted on the part of of the business so my last slide is i'm
closing up with enforced disappearances and there are two kind of arguments that i think could be
made forward with regard to businesses and and enforced disappearances of migrants because what
i said in the beginning the first disappearance of migrants will also fall into the category of
missing migrants but that's a very specifically violation of of of human rights at least when
they are performed by states so first under criminal law they can be committed as i said by
states and political organizations so this is at least our national liberation group separatist
rebels political party so this is kind of a clear thing how do how would businesses fall into here
so kind of the the question i would ask here is what when the organization which is not a political
organization but performs a disappearance for a political reason so the situation i would see here
um is a climate more or less climate change violation case a big oil company for example
in a in a state where there's a lot of oil and there is indigenous communities protesting against
this oil company is disappearing one of the leaders of this indigenous community
so here we don't have a political organization but the disappearance is clearly for a political
role and i think under criminal law that would be an enforced disappearance so this is more an
argument to bring forward and then something that is established in law but i do think that
there are enough arguments for that to be made under international human rights law the situation
is a bit more complicated because enforced disappearances can only be committed by state
but there is oliver de fervier who is a member of the of the committee of the first
appearances recently published a chapter where he makes an argument a really interesting argument
that i think is very useful in migration context so he says that um disappearances can also be
attributed to non-state actors so then they also can be called enforced disappearances and the
legal framework will apply if um there is a pattern of disappearances so if a non-state actor or
a company is disappearing people in the form of a pattern and you can connect that then that would
still be an enforced appearance even if the state was not involved and the example that he gives here
is specifically migrants that are that are disappearing in a particular context and because
the state knows that this is a pattern that is happening and is not preventing it here is the
the argument for calling this event an enforced disappearance and here is the chapter of where
this argument has been and so this is all from my side and i'm looking forward to your comments
and questions