The following interview was originally compiled for the Mixed Migration Review 2018 and has been reproduced here for wider access through this website’s readership.
Having determined that the unlawful deaths of refugees and migrants fell within the mandate of her office as special rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions Agnes Callamard found that such fatalities are often the unintended consequences of governments’ actions, “humanitarian prohibition”, negligence, and disingenuousness. The result is a tragedy with momentous implications.
When did your office start to focus on refugees and migrants and why?
This mandate, which is independent from the United Nations, was established in the early 1980s, when we were in the middle of the human rights crisis in Latin America. Over the last 30 years, the mandate has largely focused on killings in the context of political repression, law enforcement and wars. When I started as the special rapporteur two years ago, we were right in the middle of the migrant and refugee crisis and the unlawful deaths of thousands of refugees and migrants. I thought I needed to explore whether my mandate would be able to cover these kinds of deaths. In many ways I was called upon by circumstances to revisit my mandate with respect to migrants and refugees. What I found looking at the data and doing my research and legal analysis was that it did indeed fall within the scope of my mandate, and nobody has since challenged the relevance of the issue to my mandate.
In August 2017 you released the report, “Unlawful death of refugees and migrants”. Was this the first detailed report on the scale of deaths and issues around treatment of refugees and migrants and is this something you personally have pushed for?
It certainly was the first report on those issues from the special rapporteur on arbitrary killings, and it was absolutely my decision.
Your report states that in the global context migration is associated with criminality, and that saving lives is sometimes “attacked, criticized and sometimes criminalized”. Can you elaborate and give some examples?
In my report in 2017 I focus very much on the death of migrants and refugees resulting from states’ actions, policies, or negligence. I insist that while the majority of refugees and migrants are killed by criminals, states bear responsibilities because they have failed to protect them when they could or failed to investigate these deaths. I have produced a new report this year , entitled “Saving lives is not a crime”. In the new report I focus on the targeting of life-saving activities in various contexts, including in the context of migration policy — in particular the criminalisation of organisations and individuals providing services to so-called irregular migrants. The report includes various examples that illustrate this issue in different parts of the world where humanitarian agencies are providing life-saving services to very vulnerable populations. I find that humanitarian prohibition results in deaths or killings that could have been prevented, had humanitarian agencies been allowed to work. It amounts to a violation of the right to life by proxy.
In such cases the government does not directly target refugees and migrants but instead targets those actors that are saving them: those providing search and rescue in the Mediterranean, but also those offering shelter, medical support, and food, which are also life-saving. In my expert opinion, the targeting or criminalization of these humanitarian actors is a violation of states’ obligations to protect life and to prevent arbitrary killing and deprivation of life. Certainly, it is happening in the Mediterranean where there’s only one NGO vessel left providing lifesaving support to refugees and migrants. There used to be more, but they had to give up because of the pressure put on them and the criminalization, or stigmatization, of life-saving humanitarian actions.
People have been arrested and sentenced throughout Europe for seeking to save lives. In Hungary, the criminalisation of legitimate activities is very broad. But many European countries also criminalise acts of life-saving solidarity. In the US too, it is a crime to provide food or water to irregular migrants seeking to enter the country. These are some of the unfortunate examples that we cite in the latest report.
You have said states are entitled to exercise jurisdiction over their borders but must do so on the basis of their human rights obligations. Do you see this as one of the major contradictions of modern times: borders versus human rights?
I don’t necessarily see it is a contradiction in terms of human rights. Generally, I welcome the role of the state as the guarantor of human rights protection. The realization of human rights requires state intervention, so states are not the antithesis of human right protection. States are central to the implementation of international human rights and refugee law, international humanitarian law, and international maritime law. States are central to the realisation of the right to life. This means there are acts they ought to do and acts they cannot do.
But I would say that there has been a clear determination on the part of too many governments to misuse national security and sovereignty to justify activities that are violating human rights. Refugees and migrants have become the hostages of electoral politics and cheap electoral gains. Governments are misrepresenting the reality of migration and of their obligations to a public eager for quick and easy responses to complex phenomena. The result, too often, is killings and deaths that could be prevented.
You have stated that the frequent absence of investigations into these deaths is an additional violation and contributes to an international regime of impunity. Impunity for whom?
It is certainly the obligation of every government to investigate deprivation of life within their territory and sometimes outside. The failure to investigate any deprivation of life or unlawful death amounts to a second violation of the right to life. I want to emphasize that investigation is of paramount importance to the rule of law, to the bond of trust that must be there between government and the governed, to the functioning of civilised society more generally. In the case of refugees and migrant fatalities, in most cases proper investigations just don’t take place. There are an extremely small number of cases where murder of refugees and migrants leads to proper investigation leading to any prosecution.
The consequence is tragic: it is leading to a regime of impunity for the traffickers and smugglers responsible for killing migrants and refugees. But there is also impunity for border guards and other law enforcement [agents] that kill refugees and migrants, and impunity for the states where their policies contribute to these deaths by breaching their responsibility to respect the right to life and protect against arbitrary killings.
Your report often refers to “aggravated smuggling”. Can you explain what you mean by this term?
It’s important to remember that “aggravated smuggling” is actually included in the Palermo convention on trafficking and smuggling,6 which is why I refer to it. It is called smuggling with “aggravating circumstances” and I’ve summarised it as “aggravated smuggling”. The important point is that under this convention we have the notion that not all smuggling is equal, that there are smugglers who are guilty of torture, rape, and murders. I do recognise the very real challenges that prosecutors and police face when investigating aggravated smuggling because the victim is in one country, the witness maybe in another country, the perpetrator may be in a third country and members of the victim’s family live in a fourth country. But these challenges mean more investment, more training, more collaboration, more commitments. Not less.
In the current polemic around refugees and migrants there are academics and activists who sometimes downplay the violations by smugglers and state officials in transit countries and point to restrictive government policies, normally in the global North, as the real cause of violations and deaths. Where do you stand on this?
I am fully aware of this context but I will only get involved in the debate to the extent that it impacts on my mandate: arbitrary killings. Looking at the evidence, it’s clear that the vast majority of the deaths have to be attributed to criminal organisations that kill by commission or omission. But this does not mean that states bear no responsibilities. They do. Large ones. I have already said that most of these killings are not investigated. My belief is that these killings are allowed to act as deterrent factors, even though governments may not articulate it in these terms. At the end of the day, migration deterrence is what governments are after. I suspect this plays a large role in explaining why governments are not responding to the killings and preventing them as their human rights obligations require.
Your focus is ending the loss of life of refugees and migrants. Are you sympathetic to policies such as the Australian “no boats policy”, the EU-Turkey Statement, or EU externalisation policies which have lowered, or intend to lower, the number of irregular migrants and thereby also reduced the number of deaths?
These policies have [in the short term] reduced the number of migrants or refugees. But there is limited evidence of the effectiveness of these policies in the long run and beyond specific border crossings. There is evidence that those kinds of policies have an impact in the short term because clearly people can’t take the route affected by the policies, but in the medium-to long term it’s not effective. New routes are created, more dangerous ones. Furthermore, this approach is predicated on the refugees and migrants being held or detained or restricted in transit countries or countries of origin. So, although it’s very good that people are not dying by crossing oceans and borders, because of these policies they are at great risk of being held in inhuman conditions, victims of arbitrary detention, victims of torture and victims of killings. So these are not a proper response to the management of migrations, let alone to refugee movements.
Do you assume most of those on the move are unaware of the risks they face when deciding to move, or have no other choice but to move despite the risks involved?
Whether people are aware of the risks and the extent of this awareness does not impact on their right not to be arbitrarily deprived of their life. From the standpoint of states’ obligations, it does not matter whether migrants and refugees are engaged in hazardous or dangerous activities. In fact, in another context, even when people may do something dangerous, or even attempt suicide, if they need assistance it is still the obligation of the state to give them protection and assistance. That is the human rights framework and that’s my mandate.
You have said, “states are themselves guilty of the unlawful killings of refugees and migrants, either by excessive use of force or by policies and practices that are intended to deter migration but increase the risk of death.” This is a fierce accusation. Are you prepared to name situations where this occurs?
I wouldn’t argue that every instance of migration deterrence amounts to an arbitrary taking of life. But in situations where the government has sufficient evidence and knowledge, and where studies show that policies can result in deaths and killings, then states’ responsibilities are engaged. So, for example, in the Mediterranean when the rescue ships are unable to perform operations for a number of reasons that are connected to state intervention or regulation, states can be held responsible for deaths. In the United States, it’s prohibited to leave water and food in the desert along the Mexican-US border and so the people that do provide such services can face criminal charges. When US Border Patrol [agents] take away the food and destroy the water points in the middle of the desert, they do that with the full knowledge that it is likely that some people are going to die. This is an example of deterrence going too far, of deterrence that kills. Europe’s migration policy is based on migrants and refugees being held and stopped in Libya. But there has been repeated, well-documented evidence of migrants and refugees in Libya subjected to massive human rights violations, including arbitrary killings. These migration policies have gone too far. These migration policies kill. While the situation in Turkey is certainly different from that in Libya, a number of observers do not regard Turkey as a safe third country for many asylum-seekers.
You are quoted as saying, “mass killings of refugees and migrants constitute an international crime whose banality in the eyes of so many makes its tragedy particularly grave.” Can you describe what you mean by “banality” here given the extensive media and humanitarian coverage it receives?
I used the word “banality” because these deaths do not generate adequate responses and outcry, they do not generate disgust or even much anger, and they certainly do not result in national or international interventions to remedy them. Unfortunately, the prevailing public discourse, and not just in the West, but in many countries around the world, denies migrants and refugees equal humanity. They are stigmatised. Dehumanised. Not our equals. So that’s what I mean about the banality of their death or the banality of evil: for too many people, too many policy-makers, there is no reaction. There is no outrage to these killings. They have become banal. We have become accustomed to them being killed.
How outraged or concerned do you think senior political leaders are about refugee and migrant deaths?
It’s too difficult to generalise. I have no doubt that some policy makers and elected leaders are incensed and deeply, deeply concerned and moved by all these deaths. But there are many who are not. And amongst those, far too many who stigmatize refugees and migrants. Remember we do not know where this kind of dehumanization is going to stop. As I’ve said, too many states don’t seem to mind much about their dying, and use deaths as a deterrent. But who will be next? There are no reasons to believe that our societies will just stop now. There is plenty of historical evidence to fear that dehumanization will continue, applied to other groups or individuals for some other reasons. The situation is currently a tragedy, whatever the reasons behind it. It is a tragedy and it has serious, dangerous implications for the moral character of our societies.
As the international community comes close to finalising the global compacts for refugees and migrants, how optimistic are you that these non-binding agreements will be implemented or change things?
I am cautiously optimistic. The last version of the draft that I saw had many recommendations that I entirely agree with as far as saving lives are concerned, so we’re starting with a good draft. Of course, I know that some states have proclaimed that they will not be bound by it but these are states that have already taken positions against multilateralism, so we just have to learn to work without them. Even in these countries, there are a lot of people on the ground, including humanitarian organisations, activists, academics, lawyers, local authorities, who are committed to the global compact, who know that this will be a very good tool for them to manage migration and provide services for their communities, including migrants and refugees, irrespective of what their central governments are doing. I don’t know whether the global compact will be enough. I don’t whether it will be good enough. But I know we cannot afford not to try to make it work, irrespective of what their central governments are doing.
 1 For more information on this role, see: https://www.ohchr.org/EN/Issues/Executions/Pages/SRExecutionsIndex.aspx
 This vessel, Aquarius, operated by SOS Méditerranée and MSF, is now unable to operate following Panama’s decision to withdraw its registration.