Porous borders: prosecuting at source

120139_0

Catriona Murdoch makes the case for an in-country approach to tackling the illegal migration trade and reports on the challenges faced in Ethiopia

Since January 2015, 1,084,625 migrants, including asylum seekers, are reported to have arrived in Europe, of which 1,048,268 arrived by sea. 


According to figures released by the International Organization for Migration (IOM), in January 2016 alone there were 36,781 arrivals reported, with 177 known to have drowned or are missing.

The focus of recent media attention has been those fleeing Iraq, Syria, Libya and Somalia, but a vast number are also leaving Ethiopia and Eritrea. Eritreans are reported to be numerically the second-largest contingent to Syrians. Many Ethiopians are also making the crossing, and the numbers are likely to increase in light of recent famine warnings across the Eastern parts of Ethiopia.

Migration patterns in Ethiopia and Eritrea

Ethiopia’s migrants and refugees hit the headlines in April 2015 when Daesh, the so-called Islamic State Group in Iraq and the Levant, beheaded 30 Ethiopian migrant men in Libya. From the end of 2013 onwards there were unprecedented mass expulsions of undocumented Ethiopians from Saudi Arabia, with Human Rights Watch estimating a 150,000 detained, forcibly expelled and ultimately repatriated. These two events in particular have prompted the Ethiopian Government’s resolve to tackle its status as a source country, with seemingly porous borders.

Situated in the horn of Africa, Ethiopia and Eritrea have been engaged in a border dispute since 1998, which escalated into full-scale conflict. The war ended in 2000 but relations remain tense. Ethiopia, a signatory to the United Nations 1951 Refugee Convention and its own Refugee Proclamation, has a generous refugee policy towards neighbouring countries, particularly Eritrea. In the last quarter of 2014, IOM figures estimated a rate of 5,000 Eritrean refugee arrivals per month. Ethiopia has thus become known as a ‘source’ country, ripe for trafficking, with smuggling routes up through Sudan and Libya, and from there into Europe.

Another potential factor contributing to illegal migration is Ethiopia’s temporary ban on overseas labour recruitment of nationals, implemented in October 2013 by the Ethiopian Government. Ethiopian employment agencies were found to practice both legal and illegal recruitment and the ban was conceived as an attempt to stem the flow of Ethiopians leaving the country, legally or illegally. The US State Department’s 2014 Trafficking in Persons Report considered that following the ban, illegal labour migration through Sudan has increased.

Ethiopia was ranked as the third poorest country in the world, according to the Global Multidimensional Poverty Index published by Oxford University in 2015. Ethiopians tend to migrate in search of employment, send money home and then return to Ethiopia after a few years. A study by the Danish Refugee Council and the Regional Mixed Migration Secretariat in 2012 noted that while many Ethiopians are classified as economic migrants, the migration is also brought on by political oppression.

Eritreans tend to look for asylum and permanent resettlement in Europe, largely as a result of the human rights violations they face in a country with indefinite forced conscription and poor socioeconomic conditions.

UK initiatives to tackle immigration crime

The National Crime Agency (NCA), which replaced the Serious Organised Crime Agency in 2013, leads the UK in tackling serious and organised crime such as immigration crime. It operates a multi-agency partnership with police and lawyers, as well as the public, private and international sector. In particular, the Crown Prosecution Service (CPS) is very much at the ‘coalface’ in tackling immigration crime at source. Its International Division delivers a broad array of in-country work around the world, offering legal expertise and rolling out the UK’s Organised Crime Strategy. Launched alongside the NCA, this strategy is applied to immigration crime, with a four-point mandate to ‘pursue, prevent, protect and prepare’:

  • to prosecute and disrupt people engaged in serious and organised criminality;
  • to prevent people from engaging in this activity;
  • to increase protection against organised crime; and
  • to reduce the impact of serious and organised crime where it takes place.

 

Prosecuting and disrupting those engaged in immigration crime are central to in-country initiatives in Ethiopia. The UK strategy is being developed and progressed in Ethiopia with the assistance of the British Embassy in Addis Ababa, the Department for International Development (DFID) and criminal justice advisers employed by the CPS, amongst others. Training programmes for prosecutors, judges and law enforcement officers in Ethiopia could act to strengthen the legal and criminal justice systems, enabling a foundation for collaborative and targeted work between the UK, Ethiopia and Eritrea.

Legal distinction: smuggled vs trafficked

Given the clandestine and multi-jurisdictional nature of the crime, prosecuting traffickers and smugglers is inherently complex. Many victims are unwilling to co-operate, fearful of the repercussions and of their own involvement in the criminal conduct.

In order to prosecute fairly it is essential that prosecutors and those involved in the criminal justice system appreciate the legal distinction between persons who are smuggled and those who are trafficked. Indeed, concern has been levied by the United States Department of State in its 2015 Trafficking in Persons Report, about the absence of a clear legal definition of human trafficking, thus preventing a clear understanding of the distinction between human trafficking and smuggling, and the consequent impediment on Ethiopia’s ability to police and prosecute trafficking cases effectively.

Trafficking is defined by Art 3 of the United Nations Convention Against Transnational Organised Crime 2000 (also known as the ‘Palmero Protocol’) and supplemented by the Protocol Against the Smuggling of Migrants by Land, Sea and Air. Smuggling of migrants is defined by the supplementary Protocol also under Art 3. The two hallmarks of smuggling are the consent of the migrant and the illegal border crossing. Trafficking does not have to involve a border crossing and typically involves coercion or violence.

Raising in-country capacity

The Ethiopian Government has recently intensified its focus on smugglers, particularly in the north-west of Ethiopia, which is a common route into Sudan, Libya and then Europe. Statistics fromThe Guardian estimated that approximately 250 migrants were crossing the border daily into Sudan (‘Despite border crackdown in Ethiopia, migrants still risk lives to leave’, The Guardian, 25 August 2015).

In June 2015, the Ethiopian Ministry of Justice placed a Bill before Parliament proposing more severe penalties for traffickers and smugglers, including the death penalty in cases where victims suffer severe injury or death. This new legislation introduces significant fines and sentence increases, provides immunity to victims, has created a Victim Fund and also proposes the formation of a national committee led by Ethiopia’s deputy prime minister to coordinate anti-trafficking activity.

The Bill’s drafting was an opportunity to discuss with legal and policy-makers amendments in the prosecution of organised immigration crime and suggested penalties, which accord with other international statutes and instruments. The United Nations Office for Drugs and Crime’s Regional Office in Eastern Africa has now trained 70 Ethiopian judges, prosecutors and police investigators on the contents of the law, its potential for implementation and witness and victim protection.

Adopting the right approach

Such in-country initiatives invariably face challenges. Sustainable efforts to improve the investigation and prosecution of organised immigration crime in Ethiopia and Eritrea will demand a level of regional co-operation to ensure cohesive implementation of the UK’s Organised Crime Strategy. Securing this co-operation, given the history between Ethiopia and Eritrea, will be a vast challenge.

Historically, the Ethiopian authorities have shown a reticence towards the intervention of outside bodies, particularly Western ones, in internal affairs. Investigatory and prosecutorial approaches, which might be seen as ‘soft-touch’ or overly dependent upon the protection of human rights, are also likely to meet opposition. Adopting the right approach is essential, balancing an offer of expertise and assistance with any perceived sense of criticism being levied against the relevant Government bodies and law enforcement.

Capacity will also be an issue. Both countries’ systems, legal or otherwise, are limited, with a consequently low level of legal training and human rights standards. They have very different standards to the UK in terms of investigation, prosecution, trial and detention, for example the imposition of the death penalty in cases where victims suffer severe injury or death. Care must be taken to ensure than any interventions made in-country do not fundamentally contradict our own human rights standards. The UK’s Department for International Development, for example, partially suspended its Community Security and Justice Program in 2014 in Ethiopia, amid potential concerns of human rights violations by the Ethiopian Government.

Offering training and seminars on organised immigration crime, with a multi-agency approach, could improve overall cohesion between the relevant actors. Holistic training of police officers, prosecutors, defence lawyers, judges and politicians could ensure sustainability by incorporating and responding to the challenges faced by each part of the criminal justice system.

The potential benefits derived from a campaign of fair and effective investigation and prosecution of those involved in the illegal migration trade are significant. Fair and successful prosecutions are likely to have a wide-ranging deterrent effect in Ethiopia that could reduce the number of migrants reaching Europe.

Contributor Catriona Murdoch is a barrister at 1 Crown Office Row

Category: 
Issue: 
Author details: 
Catriona Murdoch

Catriona is a member of 1 Crown Office Chambers. With a domestic mixed practice, in recent years she has focused on her international practice. She has worked at the ICTY and ICTR and recently returned from Ethiopia.