Toward Justice Without Borders for Migrants:

Report of Phase I of the JSF-JWB project

July 2010

Projet Justice Sans Frontières

Justice Without Borders Project
Une initiative de MRI et OSIWA / An MRI and OSIWA initiative

1
Toward Justice Without Borders for Migrants:
Report of Phase I of the JSF-JWB Project

Authors: Naomi Onaga, Isabelle Caillol, and Elise Piranda

Projet Justice Sans Frontières - Justice Without Borders Project Phase I

July 2010

This report was produced through the

Justice Without Borders Project – Phase I
Alliance Justice Sans Frontières – Phase I

The Justice Without Borders Project Phase I, conducted April 2009 to June 2010, was an initiative
of Migrants Rights International (MRI) and the Open Society Initiative for West Africa (OSIWA). It
lead to the creation of Justice Without Borders for Migrants, a transnational network with 11
founding partners.

Migrants Rights International (MRI) is a non-governmental organization and global alliance of migrant
associations and migrant rights, human rights, labor, religious, and other organizations which operate at
the local, national, regional or international level.

The Open Society Initiative for West Africa (OSIWA) is part of the global network of autonomous Soros
Foundations, which promotes open societies where democracy, good governance, the rule of law, basic
freedoms and widespread civic participation prevail.

For further information,see www.jsf-jwb-migrants.org or write justice@jsfjwb.org

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 Table of Contents

Forward

Executive Summary

I. CONTEXT – A CRISIS IN MIGRANTS' RIGHTS AND HUMAN RIGHTS

1.1. Spiraling xenophobia and abuses against migrants

1.2. Fortress Europe and its African “Gendarmerie”
1.3. Massive detentions and deportations unleashed
1.4. The widening abyss: global loopholes, impunity, secrecy
1.5. The death of human rights?

II. THE “JUSTICE WITHOUT BORDERS” IDEA

2.1. Transnational violations require a transnational response

2.2. The idea of “Justice Without Borders” for migrants
2.3. Phase I Research and discussion – focus on West and North Africa & Europe

III. JWB PHASE I: RESEARCH

3.1. Overview of studies:

Violations, possible recourse, and analysis

3.2. Summary of key findings

3.3. National studies

3.3.1. Mali (AME)
3.3.2. Mauritania (AMDH)
3.3.3. Morocco (GADEM)
3.3.4. Nigeria (NOMRA)
3.3.5. Senegal (RADDHO)
3.3.6. France (Cimade)
3.3.7. France (Migreurop)
3.3.8. Spain (CEAR & MRI)

3.4.Regional and international mechanisms

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 3.4.1. African regional mechanisms (AU and ECOWAS)
3.4.2. European Court of Human Rights
3.4.3. United Nations mechanisms

IV. JWB PHASE I: INTERNATIONAL STRATEGY MEETING

(3 to 6 December 2009, Bamako, Mali)

4.1. Participants
4.2. Objectives of the meeting and agenda
4.3. Analysis and Discussion
• Defining the Problem: Violations and their Causes
• Possible Legal and Other Recourse: Africa, Europe, regional and international
• Building a Targeted Strategy: Priorities, existing efforts, needs
• What could a JWB project contribute?
4.4. Agreements: Justice Without Borders for Migrants is born

V. THE “JUSTICE WITHOUT BORDERS FOR MIGRANTS” NETWORK

5.1. Founding partners

5.2. Mission
5.3. Objectives
5.4. Methodology
5.5. Principles
5.6. Interim Structure and Activities: Committees and Working Groups

Conclusion

ANNEXES

Annex 1. JSF-JWB Migrants Founding Members

Annex 2. List of publications produced as part of JWB Phase I

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 Forward
There is a crisis today in migrants rights. As xenophobia escalates, detentions and deportations have
sky-rocketed. Human rights violations are rampant in these detentions and deportations, but impunity
is the norm, because once a person is deported, it is virtually impossible to seek justice. It was to
search for possible solutions that the Open Society Initiative for West Africa (OSIWA) and Migrants
Rights International (MRI) came together in 2009 to initiate the “Justice Without Borders” project. In
order to explore how a strategic, high-impact project that harnesses synergies might be crafted, a
Phase I planning process was undertaken from April 2009 to June 2010.

The culmination was a wealth of research and information (a list of publications produced from Phase I
can be found in Annex 2), and, the creation of the Justice Without Borders for Migrants, an
independent transnational network with 11 founding partners in Africa and Europe. Its mission is to
seek justice for human rights violations against migrants, in particular those arising from deportations,
through fostering transnational legal action, advocacy, documentation, capacity building, collaboration
and communication.

We believe that if we can join forces, think strategically, and engage in creative, collaborative action,
we can build a new world: one in which all human beings, including those who are migrants, enjoy
justice, equality, and full protections of all of their rights, regardless of nationality, culture, race,
borders or immigration status. This is the Justice Without Borders vision.

The JWB vision is no different than what has always been the human rights dream. But today, in a
world which has departed so far from human rights values, this means nothing less than changing the
entire dominant global paradigm. It is clear that our journey will not follow an easy or a quick path. But
it is our belief that with the birth of the Justice Without Borders for Migrants, we have set the stage for
a giant step forward.

As Phase I of the JWB Project closes, we are honored to join the Justice Without Borders for Migrants
network as equal partners with a distinguished group of organizations: Association Malienne des
Expulsés (AME) of Mali, the Association Mauritanienne des Droits de l’Homme (AMDH) of Mauritania,
Comisión Española de Ayuda al Refugiado (CEAR) of Spain, La Cimade of France, the International
Federation of Human Rights (FIDH), Groupe antiraciste d'accompagnement et de défense des
étrangers et migrants (GADEM) of Morocco, the Nigerian Bar Association (NBA) Human Rights Institute
of Nigeria, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) of Senegal, and the
West Africa Public Interest Litigation Center (WAPILC) of West Africa. While the initial focus of JWB-
Migrants is West and North Africa and Europe, we welcome the unfolding of solidarity and
partnerships everywhere as interest, need and capacity heighten.

It is the hope of all us, the founding members of JWB-Migrants, that the network will take
independent life, flourish and meet its potential for fostering justice and catalytic change. We are
grateful to have been part of the process that planted the seeds.

Nana Tanko Naomi Onaga & Pablo Ceriani

Open Society Initiative for West Africa Migrants Rights International

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 Executive Summary

Human rights violations against migrants are taking place all over the world, but Europe and Africa
are two areas where such violations have skyrocketed. A driving feature of current European
migration policy is the push to eradicate irregular migration, including through tightening border
controls and increasing detentions and deportations. Further, European countries have launched a
policy of “externalization of borders”, in which African governments are enticed or coerced into
collaborating in efforts to prevent migrants from reaching Europe. Many violations are reported
arising from deportations, including violations of due process, violence and degradation, death
during deportation (from mistreatment) or after deportation (from refoulement), family
separation, loss of property and social rights, and emotional harm. However, there is an almost
absolute impunity for rights violations once a person has been deported because it is almost
impossible to seek justice, due to legal hurdles, political barriers, and personal impediments. This
is threatening to destabilize the entire human rights regime.

It is in response to this need that Migrants Rights International (MRI) and the Open Society
Initiative for West Africa (OSIWA) started discussions about an initiative to explore possible
solutions. MRI and OSIWA's idea for the “Justice Without Borders” initiative was to produce
something that could help and bring together organizations that were already engaged in this
work, in order to contribute to filling needs to strengthen existing efforts, and catalyzing synergies
and greater efficiencies, with special care in seeking to avoid replicating, replacing or detracting
from existing efforts.

For the purpose of exploring whether a network that seeks “Justice Without Borders” might be
feasible (and useful), OSIWA and MRI coordinated a Phase I planning process that was conducted
April 2009 to June 2010, to bring together information and organizations engaged in this field for
an in-depth strategic discussion. There were two components to JWB Phase I. First, was to conduct
a series of studies, from the period August to December 2009. And second, to have an
international strategy meeting to discuss the results of the studies, to discuss options and
strategies, and to create a JWB network if partners thought it was useful.

Eleven studies were conducted from August to December 2009: they explored the nature of rights
violations against African migrants and their causes, the possible mechanisms for recourse at the
national, regional and international levels (including an overview of the procedural requirements
of legal recourse mechanisms, as well as their legal postures and jurisprudence), as well as existing
civil society efforts and recommendations. Country studies were conducted on France, Spain,
Morocco, Mauritania, Senegal, Mali and Nigeria. Further, studies were conducted on the
European Court of Human Rights, the African regional human rights mechanisms (African
Commission on Human Rights, African Court of Human Rights, the African Court of Justice and
Human Rights, and the ECOWAS Community Court of Justice), and United Nations mechanisms.

Among the key findings from the studies included that:

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 1. EUROPEAN POLICY INCREASINGLY FOSTERS DEPORTATIONS: Widespread detention and
deportation of migrants is becoming a preferred policy approach in Europe, and in North
Africa, and also to some extent in West Africa.

2. DUE PROCESS PROTECTIONS AGAINST DEPORTATIONS ARE ERODING: European countries

are changing both their laws, policies and practices to facilitate more detentions and
deportations.

3. IMPUNITY PREVAILS AFTER DEPORTATION: Few perpetrator of violations against migrants

are brought to justice after a person has been deported for many reasons, including short
deadlines for appeals in Europe, insufficient legal services in Africa, legal barriers to suits
which complicate jurisdictional issues, etc. Victims also often suffer trauma and
humiliation, and are unwilling to pursue justice. This leads to impunity for even severe
human rights violations.

4. AFRICAN COUNTRIES DO NOT ADEQUATELY DEFEND MIGRANTS' RIGHTS: Many African

countries do not have any systems in place to protect the rights of their citizens who have
migrated abroad, or, the rights of migrants in their territory.

5. SOME AFRICAN COUNTRIES ARE COLLABORATING WITH EUROPEAN MIGRATION POLICY

PRIORITIES, AND CAUSING VIOLATIONS OF MIGRANTS' RIGHTS: Because of pressure from
European countries, conditioning of development aid or other benefits, and other reasons,
some African countries actively collaborate in implementing European migration policy,
causing violations of migrants' rights.

6. CIVIL SOCIETY GROUPS NEED TO BUILD CAPACITY AND TRANSNATIONAL COLLABORATIONS

IN ORDER TO RESPOND TO THESE NEW CHALLENGES. Civil society groups in Africa and
Europe have many needs to be able to respond to the quantity as well as complexity of
violations that are now arising from deportations.

The studies were presented at an International Strategy Meeting that was held from 3 to 6
December 2009 in Bamako, Mali, and intensive discussion were held.

The culmination of the research and discussions was the creation of Justice Without Borders for
Migrants, an independent network with 11 founding partners, consisting of 7 national
organizations covering 7 countries, 2 regional organizations, and 2 international network:

The founding partners of Justice Without Borders for Migrants are: Association Malienne des
Expulsés (AME) of Mali, the Association Mauritanienne des Droits de l’Homme (AMDH) of
Mauritania, Comisión Española de Ayuda al Refugiado (CEAR) of Spain, La Cimade of France,
Groupe antiraciste d'accompagnement et de défense des étrangers et migrants (GADEM) of
Morocco, Nigerian Bar Association (NBA) Human Rights Institute of Nigeria, and Rencontre
Africaine pour la Défense des Droits de l’Homme (RADDHO) of Senegal, as well as Open Society
Initiative for West Africa (OSIWA) and the West Africa Public Interest Litigation Center (WAPILC) of
West Africa which are both West African regional organizations, and International Federation of
Human Rights (FIDH) and Migrants Rights International, both international networks.

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The mission adopted for Justice Without Borders for Migrants is:
“to combat violations of migrants’ rights arising from deportations and refoulements through
transnational action that combines utilization of legal mechanisms, advocacy, documentation and
reporting of abuses, capacity building, and strengthening collaborations and communication
between partners.”

The objectives of Justice Without Borders for Migrants are:

• To seek justice for violations of migrants’ human rights arising from deportation and refoulements
by using legal mechanisms, including strategic impact litigation at the national, regional and
international level;1
• To strengthen the capacity of civil society organizations to provide multinational legal assistance
to migrants;
• To conduct transnational advocacy in order to seek reform of laws, policies and practices that
foster violation migrants’ rights linked to deportations and refoulements;
• Document human rights violations linked to deportations and refoulements, including gathering
information and processing and presenting information to courts, governments, inter-
governmental organizations, media, and the public;
• Increase capacity of partner organizations through technical assistance in legal and other matters,
assistance in search for resources, development of common tools, trainings, etc.
• To facilitate transnational collaboration and action through strengthening communication,
information sharing, joint analysis and strategy setting, and nurturing of networks and
partnerships, and other means.

There was agreement that JWB-Migrants should seek to achieve stronger impact, with greater
efficiency, including through increasing synergies of existing organizations, rather than duplicating
or replacing ongoing efforts; producing a transnational collaboration that brings together
organizations in North and South, as well as in countries of origin, transit, and destination, and in
countries executing deportations and refoulements, and countries receiving deportees and
refoulees.

Policy principles were also adopted for JWB-Migrants at the International Strategy Meeting, and
preliminary committees and working groups were established.

1
“Strategic impact litigation” refers to a legal strategy focused on carefully selecting and bringing cases to domestic,
regional or international courts, with the goal of creating broader changes in laws, policies, practices, and attitudes. It
is distinguished from general “legal services”, which implies the provision of legal assistance to any individual that
needs it. Legal assistance should be offered to as any who requests it (to the extent possible), whereas strategic
impact litigation requires focusing on a carefully selected range of cases according to certain criteria (due to lack of
resources, as well as strategic considerations.)

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I. CONTEXT – A CRISIS IN MIGRANTS' RIGHTS AND HUMAN
RIGHTS
1. Spiraling xenophobia and abuses against migrants

Only the purposefully blind could fail to see that there is a crisis in migrants’ rights today.
Xenophobia and discrimination have exploded in an era in which the mass movement of people is
fueled by unprecedented globalization of economies, burgeoning inequality, and other factors.
And in many countries, migrants are utilized as the scapegoats for fears about national security,
economic uncertainty, loss of culture and identity, and societal dislocation.

Many governments have responded to, fomented, and/or manipulated this xenophobia to put
policies into place that are aimed at repression and exclusion of migrants. These include the
severe criminalization of small migration infractions, restriction of pathways to migration including
asylum procedures and family unification, racial profiling and targeting, raids, widespread
detentions and deportations, political persecution of migrant leaders, erosion of due process
rights, and militarization of borders.

The result is a vast array of human rights violations that are spinning out of control, including at
border areas, airports, international waters and airspace, as well as within “countries of
destination” including in the United States, France, Spain, Italy, Greece, Turkey, Malaysia, South
Korea, and Saudi Arabia. Further, these policies and violations have extended into transit countries
including Morocco, Libya and Mexico.

Reported violations include but are not limited to: racial and ethnic profiling; religious and cultural
intolerance; gender based discrimination and violence; labor and other exploitation, violations of
economic, social and cultural rights, the denial political rights, and the right to free expression;
harassment, arbitrary detention and raids against migrants and migrant communities; inhuman
conditions of detention and related violations, including beatings and racial insults, overcrowding,
unsanitary conditions, lack of medical care, sexual assault, and torture and other cruel and
inhuman or degrading treatment. Many violations are reported arising from deportations –
violations of due process, violence and degradation, death during deportation (from
mistreatment) or after deportation (from refoulement), family separation, loss of property and
social rights, and emotional harm.

2. Fortress Europe and its African “Gendarmerie”

This crisis is taking place all over the world, but Europe and Africa are two areas where such
violations have skyrocketed. While Africa and Europe had more fluid migration flows previously,
European policy over the last 30 years has become more and more restrictive. 2
2
Migration has traditionally occurred within the African continent for centuries due to reasons including nomadism,
seasonal migration, trans-Saharan trade, or the quest for security ; during the colonial era, there were movements of
West Africans within vast expanses of French colonial territories. After World War I and II, Africans were recruited to
work and study in Europe. Starting in the mid-1990’s, there has been progressive tightening of French legislation

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A driving feature of current European migration policy is to eradicate irregular migration, including
through tightening border controls, and increasing detentions and deportations. An astounding
array of new methodologies are being implemented to pursue this policy priority. For instance, at
the borders, European countries have implemented tougher controls to prevent irregular migrants
from entering their territories through implementing new rules and regulations within Europe like
the Schengen agreements and various European Commission agreements; within Europe, raids of
migrant African communities and racial profiling of persons that are black or have culturally
distinctive attire have become widespread.

Further, European policies have now expanded their reach outside of Europe. European countries
have launched a policy of “externalization of borders”, in which African governments are enticed
or or coerced into collaborating in efforts to prevent migrants from reaching Europe, such as by
signing bilateral agreements on various arrangements, including to facilitate repatriation
(including forced deportation, sometimes of Africans to a country that is not their own) 3; passing
law making it illegal for Africans to attempt irregular migration 4; utilizing African security forces to
prevent migrants from transiting into Europe 5; and allowing European forces or FRONTEX (the
nebulous new border security force of the European Union) to operate in African territories 6.

Human rights violations against migrant proliferate in the implementation of these policies.
Excessive force and brutality against persons attempting to migrate, and even those merely
suspected of having the intention to migrate, are common in the prevention efforts. Arbitrary
detentions, deportations, killings, and mass expulsions are just of the few violations reported in
North African countries including Morocco, Mauritania and Libya. An infamous case was the
incident on October 2005 near the Spanish enclave of Ceuta and Melilla (which is located within
Moroccan national boundaries), in which 11 attempted migrants were killed and hundreds injured
by Moroccan security forces. Unfortunately this is not an isolated case.

3. Detentions and deportations unleashed

Detentions of suspected irregular migrants, or those attempting to migrate, have become so

widespread that in 2008, there were 224 migrant detention centers in Europe 7, and many centers
in Africa. Many migrants that are detained are subsequently deported, as part of a targeted policy

against African migration, under the leadership of right-wing parties. See Cheikh Oumar Ba, Irregular Migration in
West Africa: Case Studies on Ghana, Mali, Mauritania and Senegal, OSIWA: 2008, p. 13 and 16, 18.
3
Since mid 2007, at least seven African countries have signed agreements with France to assist in the combating of
irregular migration: Senegal, Gabon, Congo, Benin, Burkina Faso, Tunisia, and Cameroon. See La Cimade, “Les accords
relatifs à la gestion concertée des flux migratoires et au codéveloppement”, updated version 20 October 2009
available at http://www.cimade.org/assets/0000/1659/DOC_ANALYSE_La_Cimade_-
_note_accords_gestion_concert_e_-_oct_09.pdf
4
Senegal for instance passed a law in 2005 that criminalizes attempting irregular migration.
5
Morocco and Libya are notorious for cooperating with European countries to prevent sub-Saharan migrants from
transiting into Europe. See Section 3 of this report, as well as the reports by Gadem and AME listed in Annex 2.
6
Mauritania for instance has allowed the operation of Spanish forces in its water. See Marine I case in Section 3.2.8
(CEAR Study) of this report.
7
Caroline Brothers, « EU Passes Tough Migration Measure » , New York Times, June 19, 2008,
http://www.nytimes.com/2008/06/19/world/europe/19migrant.html

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to increase deportations. France, for instance, has been setting annual quotas for the number of
deportations per year that it carries out; in 2008, it surpassed the quota set by President Sarkozy
of 28,000 deportations, by deporting 29,796 people that year. 8 These numbers reflect a radical
increase in the number of deportations compared to years past: for instance, in the first 5 months
of 2008, the number of migrants who were returned increased to 14,660, representing an 80%
increase over the number reported for the same period in 2007. 9 Similarly, African countries
including Morocco, Mauritania, Libya and Gambia have been deporting Africans alleged to be
would-be migrants to Europe. For example, from 2003-2005 alone, the Libyan government forcibly
returned 145,000 Sub-Saharan migrants to their countries. 10 Morocco has been widely reported to
arbitrary detain sub-Saharan migrants in raids, and dump them, without any kind of legal
procedure, at desert borders without food and water.11

Human rights violations are reported throughout the process of detention and deportation. Racial
and cultural discrimination is an underlying feature; with arbitrary detentions often racially
targeted against those that “look” foreign, particularly against black Africans; many deportees
report being subject to racial insults.12 Reports of inhuman conditions in detention were
widespread, and physical as well as emotional abuse are widely reported. In her study sponsored
by OSIWA in 2008, Hélène Nguyen Van Cissé reports that a Médecins Sans Frontières
spokesperson estimated that 25% of the 10,000 migrants who were detained after 2003 have
been victims of aggressions committed by security forces of the transit country or the home
country.13

Many deportations are carried out in violation of international human rights law. The right to due
process of law including a right to a fair hearing is often not respected. This results in wrongful
returns, including the refoulement of those that have the right to apply for asylum because they
face serious threats if returned to their country. Long-term residents of Europe are also being
deported, even those that have children or spouses there, often causing family separation,
emotional trauma, and financial hardship for the deportee as well as the members of his or her
family (and sometimes community). Many deportees also have assets such as moneys in bank
accounts or properties in Europe, but are not allowed to recover these before deportation. There
are numerous reports of inhuman treatment during the deportation process – deportees can be
shackled and gagged, have their heads or bodies covered, and be denied medical attention,
sometimes causing death. According to the Association Malienne des Expulsés of Mali, 61% of the
deportees that they assisted in 2008 reported having been subjected to physical violence and
insults during their deportation.14

8
“France deported nearly 30,000 illegals last year”, New Europe, 19 January 2009, at
http://www.neurope.eu/articles/92076.php
9
Hélène Nguyen Van Cissé, “Deportations forcées et mauvais traitements infligés aux migrants africains en situation irrégulière:
Plaidoyer pour une approche “Droits Humains”, OSIWA: 2008, p. 4.
10
Human Rights Watch. Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees. September 12, 2006.
http://www.hrw.org/en/reports/2006/09/12/stemming-flow-0
11
See Gadem, The Human Rights of sub-Saharan Migrants: Morocco (JSF-JWB I: November 2009)
12
According to the Association Maliennes des Expulsés (AME), about two-thirds of the persons that were detained and
deported to Mali that they were in contact with report that they suffer racially targeted verbal abuse by security
forces. Association Malienne des Expulsés (AME), Rapport d’observation, October 1, 2008, p. 10.
13
Hélène Nguyen Van Cissé, “Deportations forcées et mauvais traitements... », footnote 6.

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European Union countries and institutions, rather than fulfilling their obligation to defend human
rights, have been working to further weaken protections for migrants. For instance, in June 2008,
the European Parliament adopted the European Return Directive despite international outcries by
human rights groups that it eroded international human rights protections; for instance, it
establishes that migrants could be held in detention for up to 18 months without hearing, even
though many European countries had higher standards about length of permissible detention.

4. The widening human rights abyss: global loopholes, impunity, secrecy

One of the reasons that detentions, deportations and abuses proliferate is because there are
essentially “loopholes” in the existing international and national legal system. In the current
system, protections and rights are based on citizenship to a state, thus, there are insufficient
protections at both the national and international level for persons that are not citizens of the
territory in which they are present. Thus migrants, refugees, and their family members are
permanently in a compromised state of rights.

Many people and governments, rather than seeking to adapt to new global realities of
transnational interconnectedness, are clinging to archaic system which do not provide adequate
protections for migrants' rights, and thus are creating a deeper and deeper human rights abyss.

The intensifying policy of widespread deportations is one of the most critical “loopholes.”
Deportations are a coup de grace that seals a virtual guarantee of impunity for the perpetrators.
Currently, there is an almost no possibility of pursuing remedy or recourse for a rights violations
once a person has been deported because it is almost impossible to seek justice, due to legal
hurdles, political barriers, and personal impediments. 15 And while there are a number of
organizations that seek to help deportees seek justice for human rights violations, they are clearly
unable at this time to fully fill the need caused by the epidemic of deportations. This is both
because the organizations lack sufficient resources, capacity, information, and international
partners to fully provide the needed services, as well as because the national and international
legal systems are flawed and must be changed in order to facilitate transnational justice.

Deportations have become rampant from Europe, as well as from North Africa because of the
externalization of European borders. And there is little accountability for European authorities for
the violations that result: if an African suffers abuses during detention or deportation from
Europe, the violations are swept under the rug by the deportation, and when abuses are
committed by African security forces, Europe can turn a blind eye 16. Even when abuses are

14
Association Malienne des Expulsés, The Human Rights of Persons Deported and Refouled to Mali: Violations and
Possible Recourse, Section 1.2. See also other parts of the report for descriptions of the violations.
15
Legal hurdles include for instance limitations on jurisdiction and admissibility of complaints by a victim who is
outside of the country where the violations occurred, or the barriers to gathering evidence and taking actions in
multiple countries; political barriers can include that the governments of the nationality of the perpetrators, and
sometimes even that of the victim, seeking to impede or hinder the filing of complaints; personal impediments can
include inability to afford a lawyer, or trauma.
16
Italy, for instance, has been criticized for refusing to accept boat people into its territory and instead making an
agreement with Libya ship them there, despite the fact that it was likely they would be subjected to human rights
violations there. For example, on 10 May 2009, it sent approximately 500 migrants intercepted at sea to Libya.

12
committed by European forces operating in African territory, European agents seek to escape
responsibility by claiming lack of legal jurisdiction, or benefit from ineffectiveness or unwillingness
of the African courts to prosecute.17

The transnational nature of violations intensify lack of accountability and undemocraticness,

because one of the most important checks on government – civil society – is less empowered:
European civil society is less able to monitor and mobilize on acts of their governments committed
abroad, and European officials are less responsive to African civil society. Further, the lack of
accountability and democraticness is enhanced because in many cases European and African
governments are operating in a shroud of secrecy and clandestineness. There is widespread
criticism for instance, that bilateral agreements between countries on migration enforcement is
negotiated and implemented in secrecy, without any review by civil society. FRONTEX as well as
many African security forces operate without transparent and clear rules. Some detention centers
(such as Nouadhibhou in Mauritania) have no operating guidelines. Such lack of clear rules are also
impediments to pursuing justice in an individual case, because it is impossible to appeal against
rulings or allege an illegal act has been committed when there are no defined rules.

5. The death of the international human rights system?

The Universal Declaration of Human Rights, as well as a multitude of United Nations treaties upon
which the international human rights system is based, declare the inherent dignity of the human
being. It also proclaims inalienable the right to freedom from discrimination. But an Africa law
professor, viewing the state of affairs for migrants' rights today, declared, “Human rights is
finished.”

That the crisis in migrants' rights is destabilizing the rule of law and the entire human rights regime
can be observed clearly in at least three ways:

First, migrants are estimated to number over 250 million persons around the world, so that if
counted together, they would make up the fifth most populous country in the world. What
meaning does human rights have if migrants are systematically excluded?

Second, the insufficiency of protections for migrants' rights is not due merely to a practical
problem of difficulty of implementation. They are underlied by a deep xenophobia, combined with
racism and cultural and religious discrimination. And this is rotting away the core principles upon
which the human rights system is built. For instance, European states and institutions are well
along an astounding course of defining migrants as not having full rights to fair hearing and due
process.18
17
For instance, in the Marine I case, in which there were allegations of inhuman treatment and other violations by
Spanish security forces operating in Mauritanian waters, the Spanish appellate court dismissed the complaint under
the theory that there was no jurisdiction, and the case should be tried in Mauritania. This is currently being reviewed
by the Spanish Constitutional Court.
18
The European Court of Human Rights has ruled, for instance, that the due process protections in the European Convention of
Human Rights do not apply to many migrants (for instance, that article 6 of ECHR on fair trial does not apply in deportation
proceedings, and that article 1 of Protocol 7 on due process in deportation procedures only applies to regular migrants but not to
irregular migrants.)(See FIDH & MRI, The European Court of Human Rights and the Rights of Migrants Affected by Deportation

13
Third, the growing crisis in migrants' rights represents a paradox that is deepening the schism
between the North and South, as well as destabilizing cooperation between Southern countries. It
does not escape Southern observers that Northern governments now appear to consider that all
human beings are created equal in dignity and rights -- except for migrants --- and, the targeting of
migrants is correlated with discrimination against Southern peoples based on race, national origin,
culture, religion and other factors. This is exacerbating global tensions in an international context
where there have long been allegations that the human rights system favors Northern countries
and disproportionately targets Southern countries 19. This type of imbalance cannot but erode the
legitimacy and effectiveness of the international human rights system, which depends on moral
authority, state consent, and mutual monitoring between governments as a great part of its
enforcement.

Policies: Procedures and Jurisprudence (JSF-JWB Project:December 2009).) These are absolutely astounding legal conclusions: the
right to due process and fair hearing are the foundational defensive tools to check against arbitrary government exercise of power
– they are fundamental, inalienable human rights, and their being cut away from migrants cannot be rationalized under any pre-
existing conception of human rights or rule of law.
19
Such criticisms led to the transformation of the UN Human Rights Commission into the UN Human Rights Council in
2006; there are heightened tensions amongst African countries because of criticisms that the International Criminal
Court has so far opened prosecutions only against Africans.

14
II. THE “JUSTICE WITHOUT BORDERS” IDEA

2.1. Transnational violations require a transnational response

The near-absolute impunity that exists for violations linked to deportations means there is almost
no cost for European and African officials for implementing bad laws, or for acting outside of the
law. Thus norms and practices violating human rights proliferate.

As the world and life has become transnational, abuses by governments have become
transnational. It is clear that a transnational response is necessary: what must be achieved, in
order to avoid the rule of law and human rights being forever lost in the widening abyss, is global
justice and global accountability.

2.2. The idea of “Justice Without Borders” for migrants

Global justice and accountability require global civil society monitoring of violations, transnational
advocacy, and multi-national legal action, including the pursuit of justice at the individual level and
as well as at the policy level.

It is in response to this need that Migrants Rights International (MRI) and the Open Society
Initiative for West Africa (OSIWA) started discussions about an initiative to explore possible
solutions. MRI is an international alliance of local, national and regional organizations that
advocate for the human rights of migrants, and the Open Society Initiative for West Africa (OSIWA)
is a part of the global network of autonomous Soros Foundations, that promotes open societies
characterized by democracy, good governance, the rule of law, basic freedoms and widespread
civic participation. Both were engaged in seeking innovative and dynamic responses to the
spiraling violations of migrants' rights.

One idea that MRI and OSIWA was interested in exploring, was whether international
collaborations could be built in order to strengthen the individual search for justice, and channel it
together with a legal strategy and advocacy aimed at impacting broader change in policy and
attitudes. Legal cases can exert pressure to reform laws and practices; they can also be used as a
centerpiece in advocacy campaigns to educate government officials as well as the public. And
whether or not they ultimately succeed, they raise the costs for governments of committing
violations, because it makes their wrongdoing public and it forces them to defend in court.

MRI and OSIWA were aware that many highly effective organizations were already engaged in
work to defend the rights of deportees. However, many of them themselves articulated the need
for additional support in order to be able to respond effectively to the new reality of transnational
violations. While many understood the need for transnational collaborations, it was clear that
there are insufficient systems in place that allow migrant rights defenders to communicate and
work together fluidly across borders. This is particular true in the legal realm. Most organizations
that provide legal assistance to migrants are local or national organizations that were set up to

15
pursue remedies in national fora. Thus they were struggling to respond to increasingly complex
cases in which the victims, perpetrators and intellectual authors of policies could all be of different
nationalities and the violations had occurred in various territories, and, in which the victim had
been deported and was now in a location that was different from that of the violations,
perpetrators, evidence, and the appropriate remedy. Such cases often require the victim
assistance, gathering of evidence, legal research and analysis, legal representation, and even the
filing of legal actions in multiple countries.

MRI and OSIWA's idea for the “Justice Without Borders” initiative was to produce something that
could support and bring together organizations that were already engaged in responding to this
need, in order to strengthen existing efforts and to catalyze synergies and achieve greater
efficiencies, with special care in seeking to avoid replicating, replacing or detracting from existing
efforts.

2.3. Phase I Research and discussion - Focus on West and North Africa and Europe

For the purpose of exploring whether a network that seeks “Justice Without Borders” might be
feasible (and useful), OSIWA and MRI created a team to jointly coordinate a Phase I planning
process to be conducted April 2009 to June 2010.20

While the JWB idea is applicable everywhere, the choice was made to start the project in a
targeted manner with a focus on a specific region. A focus on West and North Africa and Europe
was selected, with a special focus on West African deportees, because a major “migration
trajectory” passes through West Africa, into North Africa and then to Europe, while the new
“deportation trajectory” is occurring on a massive scale from Europe and North Africa to West
Africa. Thus France, Mali, Mauritania, Morocco, Senegal, Nigeria, Spain were selected as primary
targets for exploration.

There were two major components to JWB Phase I. The first was to conduct a series of studies,
from the period August to December 2009. The second was to have an in-depth Strategy Meeting
to discuss the results of the studies and options and strategies, and to create a JWB network if
partners thought it was useful. Thus, eleven studies were conducted from August to December
2009, which explored the nature of rights violations against African migrants and their causes, the
possible mechanisms for recourse at the national, regional and international levels, and existing
efforts. The studies were presented at an International Strategy Meeting that was held from 3 to 6
December 2009 in Bamako, Mali, and intensive discussion were held. The rest of this report
provides a summary of these studies and these discussions, and their results.

20
The JWB Phase I Project Coordinating Team was: Kenneth Achu (OSIWA), Pablo Ceriani (MRI), Hélène Cissé
(independent expert), Mamadou Goïta (IRPAD/MRI), Bose Muibi (OSIWA), and Naomi Onaga (MRI).

16
III. JWB PHASE I – RESEARCH: ELEVEN STUDIES AT THE
NATIONAL, REGIONAL AND INTERNATIONAL LEVEL

As the first step of JWB Phase I, background studies were produced to lay the basis for strategic
discussion. Eleven studies were conducted as listed below, exploring questions at the national and
the regional/international levels. See Annex 4 for complete bibliographic information.

3.1. Studies – Overview: Violations, possible recourse, and assessments

Five studies on African countries and three studies on European countries were conducted. These
studies explored:

• Types and causes of human rights violations against migrants

• Possible remedies available for each type of rights violation, and basic information on
procedural requirements
• Existing efforts and currents needs of organizations working with migrants

Three studies on regional and international human rights mechanisms were conducted, to explore
the following topics:
• Possible legal recourse (and other types of recourse, if applicable)
• Information on basic procedural requirements for the available forms of recourse
• Existing efforts and actors
• Recommendations

List of studies and their authors (see Annex 2 for complete bibliographic information)

African national studies

1. Morocco – Gadem
2. Mauritania – AMDH
3. Senegal – RADDHO
4. Mali – AME
5. Nigeria – NOMRA

European national studies:

6. France – on violations committed in France – La Cimade

7. France – on violations committed outside of France, by French actors – Migreurop
8. Spain – CEAR and MRI

Regional and international studies

17
 9. African regional mechanisms (African Commission and Court of Human Rights, ECOWAS
Community Court) – Hélène Cissé
10. European Court of Human Rights – FIDH and MRI
11. United Nations mechanisms – MRI

3.2. Summary of key findings

This research process produced a wealth of information and analysis. Among the findings on
trends were:

1. EUROPEAN POLICY INCREASINGLY FOSTERS DEPORTATIONS: Widespread detention

and deportation of migrants is becoming a preferred policy approach in Europe, and in
North Africa, and also to some extent in West Africa. For example:
• France, a leader in European migration policy, have set quotas for deportations (ex.
28,000 deportations for 2008). Such numerical quotas increase pressure on police,
immigration officials, and adjudicators to implement deportations, without regard
to the specific case of an individual migrant.
• In France and Spain, appeals against deportations orders generally do not stop the
deportation – thus, even if a deportation order is issued in a violatory way, the
person gets deported anyway. Appeals can continue to be pursued from outside the
country, but the migrant usually does not have the legal services to do so.
• Europe has been “externalizing” its borders, that is, providing moneys, arms and
political pressure to African countries, in order to require them to prevent irregular
migration into Europe. Thus many detentions, deaths and deportations occur in
countries like Morocco, Mauritania and Libya.
• African countries are signing bilateral agreements on repatriation that facilitate
deportations

2. DUE PROCESS PROTECTIONS AGAINST DEPORTATIONS ARE ERODING: European

countries are changing both their laws, policies and practices to facilitate more
detentions and deportations. For instance:
• France and Spain have implemented accelerated deportation procedures, so that
deadlines for filing appeals are very short. So while due process protections exist on
paper, few migrants truly enjoy their right to recourse for human rights violations
linked to deportations.
• The European Return Directive, which worsens due process protections for
migrants, is being transposed into national legal systems in Europe (this process has
already been completed in France and Spain)
• European Court of Human Rights is tending toward regressive interpretations of
human rights conventions on the issue of migrants' rights. For instance, it has ruled
that the due process protections in the European Convention of Human Rights do
not apply to many migrants (for instance, that article 6 of ECHR on fair trial does not
apply in deportation proceedings, and that article 1 of Protocol 7 on due process in
deportation procedures only applies to regular migrants but not to irregular
migrants.)

18
 3. IMPUNITY PREVAILS AFTER DEPORTATION: Few perpetrator of violations against
migrants are brought to justice after a person has been deported for many reasons,
including short deadlines for appeals in Europe, insufficient legal services in Africa, legal
barriers to suits which complicated jurisdictional issues, etc. Victims are also often suffer
trauma and humiliation, and are unwilling to pursue justice. This leads to impunity for even
severe human rights violations. For instance:
• In the Marine I case, inhuman treatment was alleged at the hands of Spanish forces
against migrants who were intercepted at sea, and held in the boat off the coast of
Mauritania. Spanish appellate courts rejected the petition in Spain, saying Spanish
courts do not jurisdiction because it took place outside of Spain.
• AME of Mali reports that 60% of the deportees they service report having suffered
ill-treatment, ranging from beatings, physical restraints, and racial insults. But few
seek to pursue justice.
• In a case where African women filed complaints that they were sexually abused in a
detention center in Malaga, Spain, some were deported before the case was
resolved, clearly limiting their participation in the case.

4. AFRICAN COUNTRIES DO NOT ADEQUATELY DEFEND MIGRANTS' RIGHTS: Many African

countries do not have any systems in place to protect the rights of their citizens who
have migrated abroad, or, the rights of migrants in their territory. For instance:
• Many African countries have no law that defines the rights of migrants (Mauritania,
Mali, etc.)
• African countries are alleged to not support their citizens when they are subjected to
violations abroad. For instance, Mr. Seck, a Senegalese migrant living in Spain who
suffered inhuman and degrading treatement by Spanish authorities (which was
captured on video and caused international outrage), reported that the government of
Senegal discouraged him from filing a complaint.
• Nigerian civil society groups alleged that the government of Nigeria failed to intervene
to protect its citizens who were arbitrarily detained in Libya.

5. SOME AFRICAN COUNTRIES ARE COLLABORATING WITH EUROPEANMIGRATION POLICY

PRIORITIES, AND CAUSING VIOLATIONS OF MIGRANTS' RIGHTS: Because of pressure from
European countries, conditioning of development aid or other benefits, and other
reasons, some African countries actively collaborate in implementing European migration
policy, causing violations of migrants' rights.
• Senegal adopted a law in 2005 outlawing attempted irregular migration, in
contravention of ECOWAS treaty agreements.
• Morocco, Mauritania and Libya detain and deport migrants, often to desert areas with
no food or water, in order to prevent them from attempting passage into Europe.
• Morocco and Mauritania intercept boats of migrants off its coasts to prevent their
migration to Europe. Moroccan security forces have caused deaths of migrants by
damaging some boats.

19
 6. CIVIL SOCIETY GROUPS NEED TO BUILD CAPACITY AND TRANSNATIONAL COLLABORATIONS
IN ORDER TO RESPOND TO THESE NEW CHALLENGES. Civil society groups in Africa and
Europe have many needs to be able to respond to the quantity as well as complexity of
violations that are now arising from deportations. These needs include support for
operations and staff (especially legal staff in many cases), and the building of transnational
collaborations including for joint collection of evidence and pursuit for legal cases, as well
as transnational advocacy. For example:
• There is insufficient legal support in many countries, particularly in African
countries, to service all the deportees requiring legal assistance. Many civil society
groups do not have sufficient staff (many groups have no paid attorneys) or
resources, and their capacity to gather evidence for international reporting or
litigation is insufficient.
• Many civil society groups stressed the need to collaborate with partners in other
countries. This is both because in order to provide legal assistance to deportees,
legal action can be necessary in the deporting country, as well as the country to
which a person was deported, and also because violatory policies are being
development or implemented at a multinational level. For instance, CEAR of Spain
provides deportation defense services in Spain, and wants to pursue recourse after
deportation; it seeks African partners to keep contact with the deportee, and to
help collect the necessary evidence.
• Gadem of Morocco reported that for the events of Ceuta in Melilla, in which scores
of migrants were injured and several were killed by Moroccan and/or Spanish
security forces in Morocco, there was no consolidated legal action, because
organiazations could not come together effectively. Some Spanish organizations
filed some suits in Spain, but this had little impact in Morocco because the
Moroccan organizations could not utilize this for advocacy because the information
was in Spanish.

3.3. National studies – Africa and Europe

3.3.1. MOROCCO NATIONAL STUDY – GADEM

Morocco is induced, as a transit country, to satisfy the security needs of the members of the
European Union by controlling its borders and notably, by preventing migrants from leaving the
African continent. Europe uses promises of development aid to make its goals incumbent upon
African countries that have important migration flows through which migrants seek to reach
Europe.

Numerous violations of human rights of migrants (physical violence, psychological abuse, police
misconduct) take place in the arrests of foreigners in irregular situations by security forces
(notably in their domiciles) because of lack of respect for criminal procedure. Morocco also
engages in numerous collective expulsions, even though they are contrary to international
conventions that Morocco has signed and ratified. Further, during returns to the border
(reconduite à la frontières), in which migrants are expelled across the border usually without

20
respect to legal procedures and due process rights (including not being given any type of
notification or opportunity for hearing), migrants are subjected to humiliation and rights violations
(abandonment in the desert without food or water, rapes, physical aggression, death, etc.) The
anti-migrant climate created in Morocco also leads to violations by third parties – for instance, bus
drivers often refuse to let sub-Saharan migrants board buses because of fear of being accused of
aiding migrants.

In theory, there are forms of recourse available to the migrant that are provided in the law,
notably Law 02/03 of November 2003, to allow them to challenge decisions taken against their
interests. However, in practice the absence of notification does not allow the migrant to contest
decisions or even the execution of the return to the border measure, or deportation by
administrative tribunals. Further, the complexity of steps and procedures to grant legal aid causes
difficulties for migrants to be able to have a genuine defense, whether to simply have access to
justice or to respond to urgent situations. In the numerous situations observed by Gadem,
migrants do not have access to a real interpretation. Attorneys lack the knowledge of rights of
migrants, and because of this, cannot provide migrants with a truly effective defense.

There are a number of civil society organizations engaged in responding to violations that have
taken place, in Morocco, as well as in Europe, in particular in Spain. However, it has been difficult
to take effective legal action because of various challenges. For instance, in response to the tragic
events of Ceuta and Melilla in 2005, there were various efforts to file a legal complaint (including
by APDHA and CEAR of Spain), however, they were largely ineffective, in part because there was
no effective network in place that could respond quickly to interview victims and so evidence was
lost, and, because the actions initiated by Spanish organizations were not capitalized upon, in part
because of language barriers. Gadem was founded in 2006 and has been working to take
testimonies and carefully document violations, and has pursued legal recourse in some cases, but
this work is difficult because the Moroccan legal system is flawed.

Gadem formulates numerous recommendations at the end of its report, including to work to
guarantee access to justice for migrants; prosecute state agents who are perpetrators of
violations; monitor compliance by Morocco of international obligations; provide education and
training on international texts protecting the rights of migrants; and advocate for legal reform in
Morocco, the end to collective expulsions and returns to the border, and ratification of the
Migrant Worker Convention by European countries.

3.3.2. MAURITANIA NATIONAL STUDY – AMDH

Mauritania is a transit country for irregular migration, through which migrants seek to cross to be
able to reach the ultimate goal: Spain (via the Canary Islands). Migrants who are returned to the
border are composed primarily of Senegalese and Malians (95%). In the face of the increase of
flows of irregular migration, Spain has concluded a number of accords with Mauritania, notably
the readmission accords of 2003, which was severely criticized by many NGOs and organizations as
being violatory of the human rights of migrants. Further, since July 2006 different operations of
FRONTEX were put into place, consisting in surveillance of borders and coasts, and consequently
interception and arrest irregular migrants. The most shocking example of this repressive migration

21
policy is clearly the detention center of Nouadhibou, created and financed by the Spanish
government. This center does not governed by any legal framework, which leads to numerous
violations of human rights, including arbitrary and prolonged detention, physical and psychological
violence, inhuman and degrading treatment, and violations of due process rights.

Mauritanian law on the topic of immigration is limited to a few texts, that do not cover all aspects
of rights of migrants and as such, is insufficient to provide effective protection against human
rights violations to which migrants are subjected, or to provide effective recourse after violations
occur. A new draft law, debated before the Parliament in November 2009, is hoped to fill this
judicial void. While awaiting an effective legal framework that is protective of the human rights of
migrants to be put into place in Mauritania, numerous NGOs and organizations advocate actively
for the recognition and the protection of the rights of migrants. Mauritania is not part of ECOWAS
agreements, cannot exercise recourse before the ECOWAS Community Court of Justice.

At the end of its study, AMDH enumerates recommendations formulated by the organizations and
the migrants themselves, such as access to justice, respect for human dignity, and the closure of
the Nouadhibou detention center, among others. AMDH also articulates the duties that are
incumbent upon transit states like Mauritania, such as giving right of access to detention centers
for NGOs and other organizations, as well as the duties of the EU states charged with establishing
a legal and monitoring framework for the purpose of guaranteeing the rights inherent to migrants.

3.3.3. SENEGAL NATIONAL STUDY – RADDHO

The study discusses some types of human rights violations against migrants, including hindrances
to the free movement of people and goods, and to the right to residence and establishment;
mistreatment in administrative and detention centers, during refoulement or before their
deportation; violence by security forces during deportation; intimidation and humiliation, severe
repression and criminalization of clandestine migration; victimization of migrants by smugglers,
and the consequences of readmission accords.

The report also discusses the infamous case of Massemba Seck, a Senegalese national that was
living in Spain, who was subjected to violence and inhuman and degrading treatment in May 2009
by Spanish police when they sought to forcibly deport him. This case had caused outrage around
the world because it was secretly captured on video, and was circulated online. The report
provides information from an interview with Mr. Seck, who alleged that Senegalese authorities
asked him not to file a complaint.

The study provide information on the Senegalese legal framework, and discusses some
mechanisms for recourse, including regional human rights mechanisms (such as the ECOWAS
Community Court, and the African Commission on Human Rights) and international mechanisms
such as those of the UN. It also mentions that in Senegal, there is an universal jurisdiction statute,
which allows Senegalese courts to try human rights crimes, for violations committed by a person
of any nationality, anywhere in the world (the amendment of Article 669 of the Code of Penal
Procedure will enable national jurisdictions to consider infractions of international law that are
based on principles recognized by the International Community).

22
The study also provides information on characteristics of victims, efforts that have been made or
should be made in order to respond to violations, and makes some recommendations on
migration policy.

3.3.4. MALI NATIONAL STUDY – AME

Because of its geographical location and history, Mali is a country of significant migration. Many
Malians migrate within the country, and/or migrate abroad, and many people have been using it
as a transit country in their attempts to get to Europe. There is now a significant increase forced
returns of persons to Mali – they include Malians, as well as Africans from other countries
(Senegalese, Ghanaians, Guineans, Cameroonians, Ivorians, Burkinabés, Congolose-Kinshasa,
Beninese, Liberians, persons from Niger, Congolese-Brazza, Togolese and Gambians). (AME has
occasionally assisted deported Asians (Chinese and Nepalese)).

Persons who are forcibly returned to Mali arrive by airplane to Bamako from countries like France
and Libya, as well as arrive by land, where they are dropped off at Rosso in Senegal, Oujda in
Morocco, Tamanrasset in Algeria, Gogui in Mali, Tinzawaten in Mali, and in Algeria. Violations
abound in these deportations. AME estimates that 7 out of 10 deportees they encounter report
that they have suffered one or more human rights violations. Among the violations that have been
reported include:

In deportations by air: arbitrary detention (raids of African communities, persons of African

descent being racially profiled), violations of due process rights during deportation process,
inhuman treatment during detention (people chained to the wall, etc.) and deportation (people
tied up with adhesive tape, handcuffed until after the plane has taken off, gagged and stifled, etc.),
racial insults, police violence especially at the time of boarding the person forcibly onto the plane,
family separation, loss of property (the person not allowed to dispose of their property before
being deported), mass collective deportations (from Libya), etc.

In deportations by land from African countries: Arbitrary detention, prolonged detention before
deportation (persons held in camps in Mauritania, Libya and Algeria for 6 to 9 months without
hearing), inhuman conditions of detention, abandonment across the border in the desert,
violations of due process, racial insults, rape, torture, deaths, etc.

Legal recourse that is possible within Mali for these rights violations are very limited. New laws on
criminal law and criminal procedure instituted the possibility of Malian jurisdiction pursuing
prosecution against foreigners, but only for crimes related to national security and counterfeiting.
But, it may be possible to utilize African regional courts and mechanisms, such as those of the
West African Economic and Monetary Union (UEMOA), ECOWAS, and the African Union.

AME assists deportees that arrive to Mali by providing humanitarian assistance, and assistance to
individuals to pursue justice for rights violations. Its main office is in Bamako, and it recently
opened offices at the borders of Mali-Algeria (Kidal), and Mali-Mauritania (Nioro du Sahel). AME
also collects information and produces reports, and engages in advocacy and public education.

23
There are many unmet needs in this work: there is an urgent need to reinforce staff and more
financing to meet needs in providing services to victims, documenting violations and advocacy,
creation of a lawyer network, develop a medical support network, etc. Need for action includes
international solidarity between activists, build lawyer's network in each country in West Africa to
defend migrants' rights, eventual adoption of a (West African) community law on migrants, reflect
on pursuing recourse against States responsible for violations of migrants' rights before
international jurisdictions, encourage creation of employment for youth.

3.3.5. NIGERIA NATIONAL STUDY – NOMRA

Nigeria is a sending and receiving country for migrant, and is a transit country for migrants trying
to get to developed countries through intermediate countries like Libya, Morocco and Algeria. The
‘closed door’ policy of the EU (for legal migration) has boosted irregular migration. Increasing
numbers of Nigerians have been deported to Nigeria, from countries of transit or of destination.

Rights violations arising from deportations include arbitrary arrest, prolonged and inhuman
detention, excessive force or murder, beatings, sexual assault, collective deportations, violations
of due process, arbitrary deprivation of property, etc. Some examples of specific rights violations
reported against Nigerian migrants during detention and deportation include:

− Deaths because of excessive force and/or gagging during forced deportation on airplanes
to Nigeria (ex. S. Adamu – 1998; M. Omfuma – 1999; O. Aikpitanhi – 2007);
− Moroccan security forces causes drowning in the Mediterranean of approximately 30
attempted migrants, when it punctured an inflatable boat with 60 or 70 migrants on board,
on 29 April 2009;
− Moroccan security forces dump migrants in desert borders of Morocco;
− Deaths and ill-treatment in migrant detention camps and centers;
− Sexual assaults of migrant women;
− 230 Nigerians were on death row in Libya until fall 2009, allegedly included a person who
had been in prison for 7 years without being informed of the charges;
− Many Nigerians are deported from European countries including Italy and Spain, based on
criminal convictions which are sometimes based on fabricated charges;
− Suspected collective deportation in the deportation of 734 Nigerians from Libya in a four
day period in September 2009

Needs expressed by victims of violations include redress for violations of human rights in cases of
victimization, sanctions for the perpetrators, compensation for losses; support by the government
of country of origin to assist victims to pursue justice in countries of transit and employment; and
restoration of permission to enter or stay in a country, where it has been unlawfully or improperly
denied or withdrawn.

A legal framework exists where recourse can be attempted at the national, regional and
international level. Past efforts include: Case presented by SERAP to the African Commission that
succeeded in obtaining the freedom of over the 200 Nigerians who were arbitrarily on death row
in Libya); complaint to ECOWAS Community Court alleging violations of ECOWAS agreements on

24
free circulation; suit against Spain on death of Osamu Aikpitanhi filed in the United States under
the Alien Tort Claims Act, and filing of the same case in the European Court of Human Rights.
(Both Courts declined jurisdiction. The case is now pending in High Court of Nigeria, against Iberia
Airlines, in the High Court of Nigeria.)

The report makes numerous recommendations, including: for Nigerian civil society groups to
collaborate more with groups in other countries; for the Nigerian government to intervene more
effectively to assist Nigerian migrants who are at risk or subjected to rights violations abroad; for
European governments to ratify and respect the Migrant Rights Convention; the African Union
should facilitate access for individual and NGOS to its judicial bodies, and African and European
governments should revise Cotonou Agreement (agreement between EU and developing
countries) to incorporate mechanisms for international protection of migrants' rights in a spirit of
joint responsibility.

3.3.6. FRANCE STUDY ON NATIONAL RECOURSE FOR VIOLATIONS COMMITTED IN FRANCE – LA

CIMADE

In France, the immigration laws are becoming more and more complex, a repressive policy for
combating irregular migration has reinstituted quotas for deportations, as well as made the
conditions for obtaining visas increasingly difficult. Because of these policies, many rights of
migrants are violated. These violations result not only from the the legal and policy framework
(such as from the signing of managed migration agreements), but also from the practice by actors
charged with executing repressive policies.

The study provides an overview of the mechanisms that exist within the French legal system for
violations of migrants' rights including to challenge deportations. Numerous means of national
recourse for migrants exist, including those that can challenge a deportation measure or the place
of detention, prosecution of those that violate migrants rights, etc. Further, recourse is possible
before different administrative mechanisms (for example, before the prefecture, the Ministry, the
administrative courts, etc.), judicial courts, and other bodies (Children's Ombudsperson, etc.)
There are also mechanisms for recourse that can be utilized after a deportation, in the country
where a person has been deported to.

Administrative and judicial bodies have acted to protect the rights of migrants in various decisions.
For instance, courts have affirmed the right of migrants to legal defense, requiring that migrants
be informed in a language they understand of all decisions that concern their rights. Similarly, the
courts have ruled that interpretation is required in all phases of migration procedures, under
penalty of nullity of the procedure. Legal aid must be offered to foreigners in regular and irregular
situations if they meet certain requirements, in the case that he or she does not have the means
to contract their own attorney. In practice, however, defending migrants' rights effectively is
becoming increasingly difficult because of short deadlines and accelerated procedures which pose
severe problems for genuine access to justice and respect of the right to effective recourse.
Officials are also unwilling to act to protect migrants' rights, even when the law gives them the
discretion to do so.

25
Diverse migrants' rights organizations exist in France; some assist in procedures to obtain a visa
(such as GISTI and FASTI), offer assistance to migrants in places of detention (Anafé), and are
authorized to intervene in detention centers (La Cimade). This dynamic activist network is still
constrained in its capacity of action due to budgetary limitations (especially as government
support for migrant rights activities become more and more restricted), insufficient staff to be
able to respond to the tremendous need, and above all, a legal framework that is increasingly
reduces their field of action and interventions.

3.3.7. FRANCE STUDY ON POSSIBLE RECOURSE IN FRANCE FOR VIOLATIONS COMMITTED BY

FRENCH ACTORS, OUTSIDE OF FRANCE – MIGREUROP

This study discusses violations of the rights of migrants committed or caused outside of French
territory by French authorities or citizens, as well as, the possible recourse within France for such
violations.

The principal violations that migrants are subjected to by French agents outside of France, are
usually committed by French liaison officers for migration, agents on assignment with Frontex, and
by French agents posted in other states for short assignements within the framework of bilateral
agreements. These violations can involve abusive decisions to not permit a person to board a
plane to Europe, racial discrimination, denial of opportunity to seek asylum, physical violence,
among others.

Means of recourse for these violations exist before French administrative and judicial bodies.
Effectively, the acts of French agents committed outside of the national territory are subject to the
same recourse before administrative tribunals as would be similar acts that take place in France,
and, if they are prohibited by the French Criminal Code, they can be the subject of criminal
prosecution. Further, independent administrative authorities can be utilized such as the Halde
(Haute autorité de lutte contre les discriminations et pour l'égalité – High Authority for the Fight
Against Discrimination and for Equality). The Halde can make public the alleged case of
discrimination, or the CNDS (National Commission on Ethics and Security - Commission Nationale
de Déontologie de la Sécurité) can refer it to higher authorities for judicial prosecution of the
agent. In practice, it is difficult for the refusal to allow a person to board a plane at the airport of
departure (which is by definition outside of the French territory) to give rise to a prosecution
before French courts, except in the case where it is attested that it was provoked by the
intervention of the French Immigration Liaison Officers. For cases of denial of a visa to enter
French territory by a French consular authority, a recourse exists before the Appeal Commission
Against Visa Refusals (CRRV – Commission de recours contre les refus de visa), and further appeal
before administrative court (Council of State). The responsibility of persons and companies private
considered in French courts, as well as in the courts of countries where the criminal action by the
French agents were committed.

The study notes, however, that few of these recourses have been attempted so far. The study
gives recommendations on measures including mobilizing networks of lawyers, advocating for
more recognition of NGOs including access to detention centers, and advocating for more

26
transparency on the operations of French immigration agents outside of France, and ensuring
respect for the right to seek asylum.

3.3.8. SPAIN STUDY ON NATIONAL RECOURSE – CEAR AND MRI

The study produces details on the Spanish legal framework on detentions and expulsions, and
provides an analysis, information on possible recourse, and recommendations.

There are three procedural mechanisms for expelling a person from Spain: deportation, devolution
and denial of entry.21 There are different rules, procedures, authorities, and recourse mechanisms
for each. There are many procedural protections in the law for migrants facing deportation
proceedings, including the right to free legal assistance and interpretation (both for regular and
irregular migrants), the right to appropriate notification (there are specifications on this in the law
and regulations), and various appeal mechanisms. There are also some protections for specific
groups, like pregnant women, long-term residents of Spain, persons with disabilities and
unaccompanied children.

In practice, however, many of the procedural rules and protections are often violated – for
instance, an irregular migrant found in Spain should only be deported as an exceptional measure
(the normal sanction should only be a fine), however, courts and officials frequently deport people
as the norm, without establishing the proper exceptionality. There are also flaws within the law
itself: one of the principal problems is that the deadlines are very short, and does not allow
migrants to be able to utilize the available mechanisms. Another example is that deportation
orders have immediate effect (it does not suspend the execution of the deportation) – thus a
migrant can be deported right away, even though he or she may be filing an appeal. It is difficult to
pursue justice for violations that occur in detention or during the deportation process, because
the person is deported even after they file a complaint. For instance, in a case of sexual abuse of
migrant women in a detention center in Malaga, three were deported subsequently even though
the investigation was still pending.

There are both administrative and legal remedies to challenge deportation, devolution, denial of
entry, and detentions. Most of these remedies are submitted in Spanish territory, but some can be
submitted before Spanish consular officials outside of Spain. Through these remedies, a migrant
can seek reconsideration or review of the deportation, devolution or denial of entry decision;
suspension of the deportation, devolution or denial of entry decision; habeas corpus to challenge
detention ordered by administrative authorities; etc.

Many legal actions utilizing these measures to protect migrants' rights and to pursue justice for
violations are attempted in Spain. Spanish courts have a mixed record in their response. For
instance: Spanish courts have repeatedly pronounced to protect due process protections for
migrants, regardless of migration status, including the right to free legal assistance and
interpretation. Spanish courts have acts to protect the family in some cases, but the Constitutional
21
DEPORTATION is for expelling someone who is already in Spain); DEVOLUTION is for people that were previously
deported or attempt to enter irregularly, at borders or their surroundings; this is also used to return migrants who are
intercepted by Spanish authorities in international waters, and DENIAL OF ENTRY is for individuals who present
themselves at authorized border posts, and do not meet the requirements.

27
Court explicitly rejected the idea that there is a right to family life in the Constitution nor the right
to family reunification. Spanish courts have also acted to strengthen protections from expulsion
for unaccompanied children. Other problematic restrictive approaches of the Courts include: that
the Constitutional Court has held in 2007 that the short deadlines do not constitute a denial of the
right to judicial protection, nor do the immediate effect of deportation that allows deportation of
persons even while appeals are pending; that racially targeted migration checks were declared
permissible, etc.

CEAR has pursued many legal cases in Spain to defend migrant and refugee rights. Its cases include
the Marine I case, pursuing justice for violations committed by Spanish security officials after they
intercepted and detained migrants in a boat off the coast of Mauritania. The lower and appellate
courts dismissed the case under the theory that there was no jurisdiction in Spain because the
events occurred in the coast of Mauritania; CEAR has filed an appeal with the Constitutional Court.

Needs and recommendations include strengthening collaboration between Spanish and African
groups, for gathering and preserving evidence, communication among actors, pursing appeals
after deportation, pursuing strategic litigation, continued advocacy actions to change policy and
practice. There is a need for coordination on action for joint actions of migratory control by Spain
and African governments in coasts and waters.

3.4. Regional and International studies – AU & ECOWAS, ECHR, UN

3.4.1. AFRICAN REGIONAL MECHANISMS (AU & ECOWAS) – HÉLÈNE CISSÉ

This study provides detailed information about four key regional human rights mechanisms within
Africa, in the African Union (AU) and the Economic Community of West African States (ECOWAS).

African Commission on Human and Peoples' Rights (AU)

Established by the African Charter on Human and Peoples' Rights, the Commission is the primary
body in charge of promoting the rights in the Charter. The Commission can conduct investigation,
issue reports, and raise issues in the AU; it can also receive individual communications (essentially,
complaints) from individuals, civil society associations, or States parties, on specific human rights
violations committed a State party. The Commission also has some Special Rapporteurs that have
mandates to promote human rights. The Commission has made some important progressive
pronouncements protecting migrant and refugee rights, including:
− multiple pronouncements against mass expulsions (for example, that mass expulsions of
any group of individuals, whether on the basis of nationality, religion, ethnicity, race,
constitute a specific violation of human rights (see communication 159/96); and that mass
deportations following arrest and confinement in detention denies victims the possibility of
establishing the illegality of these actions before the courts (Communication 71/1992 –
Rencontre Africaine pour la Défense des Droits de l’Homme vs. Zambia).

28
 − By deporting the refugees from Rwanda without giving them the opportunity of being
heard by competent national authorities, the government of Rwanda violated article 7 of
the Charter (World Organisation Against Torture and Others. v. Rwanda)
− detention and deportation of Gambians without allowing them time to gather their
property constituted a violation of Article 14 right to property by the Angolan government
(Esmaila Connateh and 13 others v. Angola)

Note that the Commission took a progressive approach in various cases, in allowing the usual
requirement for exhaustion of domestic recourse to be waived in cases where migrants or
refugees were detained and deported – it found the circumstances made it impossible for the
victims to utilize domestic recourse. See the full study for more information on procedural
requirements, jurisprudence, existing efforts, and relevant actors.

African Court of Human and Peoples' Rights (AU)

The African Court of Human and Peoples' Rights was created by the optional Protocol to the
African Charter, which became effective 2004. The African Court is competent to judge cases
concerning violations of the African Charter, and other AU human rights instruments, but only for
states that have ratified the relevant instrument. The Commission and States parties can submit a
case to the Court. The Court can also permit individuals and NGOs with observer status before the
African Commission to submit complaints, if the State party has made a declaration that it accepts
this (only Burkina Faso and Mali have so far done so.)

African Court of Justice and Human Rights (AU)

This is a Court that resulted by an AU decision to merge the African Court of Justice, and the
African Court of Human and Peoples' Rights. The new African Court of Justice and Human Rights is
not yet in operation, because there has not yet been a sufficient number of ratifications by States.
When it achieves the required ratifications, it will go into effect, and will make the African Court of
Human and Peoples' Rights extinct.

ECOWAS Community Court (ECOWAS)

The ECOWAS Community Court of Justice was created in accordance with articles 6 and 15 of the
Revised Treaty of the Economic Community of West African States (ECOWAS). The state parties to
this treaty are thus the ECOWAS member States: Benin, Burkina Faso, Cape Verde, Ivory Coast,
Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo.

The Court is competent to consider breaches by member States of ECOWAS Treaty, Conventions
and Protocols, and is also competent to consider cases of human rights violations within the
territory of any ECOWAS member State, regardless of the nationality of the alleged perpetrator.
Complaints can be submitted by individuals, and in 2008, the Court ruled that for victims alleging
human rights violations, they should not be subject to the requirement of exhaustion of domestic
recourse. This is however being challenged by an amendment proposed by Gambia.

29
3.4.2. EUROPEAN COURT OF HUMAN RIGHTS – FIDH AND MRI

Pablo Ceriani of MRI presented a summary of the study that was prepared by MRI and FIDH on the
European Court of Human Rights. (Kirill Koroteev of FIDH was not able to arrive at the Strategy
Meeting until after Segment One took place, but also supplemented the following notes.)

The ECHR, created in 1959, is the main European institution in charge of judging applications of
human rights violations involving the member states of the Council of Europe.

Migrants, whatever their nationality, can file a petition before the Court, against a member state
of the Council of Europe, for any violation of the rights guaranteed by the European Convention on
Human Rights or any failure by a CoE state to fulfil its obligations. The violation can even take
place outside of CoE territories, if the petitioner can demonstrate that the respondent State
excercised jurisdiction (but not there is controversy as to when a state is considered to have
exercised jurisdiction.)

To be admissible, the petition must meet substantive requirements on the merits, by presenting
the facts of the case, and well-founded arguments alleging violations of the European Convention
on Human Rights. Migrants who are deported can generally submit a petition to the Court on the
following violations: right to life (art. 2), right to freedom from torture (art. 3), right to liberty and
right to freedom from arbitrary detention (art. 5), rights related to family life (art. 8). Violations of
the article 4 Protocol 4 prohibition against collective expulsion can also be alleged; a violation of
this article also invokes the protection of ECHR article 13 right to effective recourse for migrants
subject to expulsion, regardless of their migration status.

Other admissibility requirements for a petition include that Article 35 of the ECHR requires the
exhaustion of domestic recourse. Note that a petition on the death of a Nigerian who died during
a forced deportation on board a flight from Europe was dismissed for failure to exhaust domestic
recourse, probably because a criminal proceeding was underway in Spain (but this was not a
published decision, so is not binding on future cases.) Further, petitions should be filed before the
Court within six months of the date in which domestic recourse is exhausted.

Unfortunately, the jurisprudence of the European Court is not favorable for migrants who have
been expelled, or who are in a deportation process. For instance, in Maaouia v. France the Court
found that article 6 of the Convention, which guarantees the right to due process, did not apply to
deportation decisions, nor deportation proceedings. Further, the Court has repeatedly found that
article 1 of Protocol 7, which is related to the procedures applicable to deportation procedures, do
not apply to migrants who are not in the territory in a regular manner, thus excluding migrants
without a residence permit. However, provisional measures based on article 39 of the rules of
procedure of the Court can protect migrants. Effectively, they can be imposed on a state in order
to prevent it from executing a deportation measure, and has suspensive effect during the
determination of the procedure. Further, the possibility of legal aid is available to the petitioner,
even though it cannot cover all the costs of a case (EUR1000 is the maximum per case.)

30
The study recommends advocacy before for the Court for it to recognize the application of article
6 for migrants in order to guarantee due process rights and legality of procedures, which are
critical to human rights. It also recommends that article 39 provisional measures be utilized more
frequently. And more violations of human rights perpetrated against migrants who are deported,
or are in deportation procedures, should be brought before the Court. Though successful
outcomes in the Court are never guaranteed, it is useful to pursue cases in the Court because they
serve to inform the public of the violations of human rights of migrants. Thus litigation becomes
an instrument of advocacy.

3.4.3. UNITED NATIONS – MRI

This report provides an overview of the UN mechanisms that can be utilized to pursue justice for
violations of migrants' rights. The mechanism that are examined are the UN Commitees
established to monitor compliance with human rights treaties (treaty bodies), the extra-
conventional mechanisms (including special rapporteurs and working groups), and the other
bodies such as the UN Human Rights Council, as well as some brief comments on the International
Court of Justice and the International Criminal Court.

The study provides basic information on these bodies, and also reviews the procedural modalities
for utilizing these bodies. The UN Committees work primarily through two mechanisms: the period
review process, and the individual communications process. In the periodic review process, the
Committee reviews the compliance with States with a specific human rights treaty (for instance,
the Committee Against Torture reviews compliance with States parties with the Convention
Against Torture), and NGOs can participate by submitting “shadow reports” to inform the
Committee on violations by the State of that convention. In the individual communications
process, individuals (and sometimes NGOs) can submit petitions to a Committee, regarding
specific human rights violations of the relevant convention (but only if the government in ques tion
has previously accepted the competence of the Committee to consider such petitions; note that
the Committee on Rights of the Child does not have such a mechanism at all, and for the
Committee on Migrant Workers, the individual complaints mechanism is not yet operative
because not enough states have ratified it.) Other officials and bodies can like the Special
Rapporteurs, Independent Experts, Working Groups and others can focus on human rights issues
related to their mandates, and can conduct missions and investigations, and issues reports (for
instance, the Special Rapporteur on Human Rights of Migrants travels all over the world to
investigate situations impacting migrants' human rights.)

The study then reviews a number of the important jurisprudence and standards developed by
these bodies, which include both progressive as well as restrictive approaches.

Some key progressive approaches studies include:

− An independent appeal procedure must exist for immigration decisions, and these appeals
must have suspensive effect (the person cannot be deported until the appeal is pending)
(CCPR)
− States must adopt measures to prevent refoulement of all persons in their territory, as well
as all persons under their control, thus, states must guarantee non-refoulement when they

31
 operate outside of their own territory (such as European forces operating in African
waters) (CCPR)
− Procedures that target some particular migrants, such as based on skin color, constitute
manifestations of racism (Special Rapporteur on Human Rights of Migrants)
− Migrants should not be subjected to expulsion measures that interferes disproportionately
with the right to family life (CERD)
− Unaccompanied children should not be deported from a country unless it is in their best
interest – they should only be repatriated if it is for their protection, such as for family
reunification (CRC)
− Deprivation of liberty for administrative reasons for a prolonged period without knowing
the length of the detention may amount to inhuman and degrading treatment (Special
Rapporteur on Torture)
− Infractions of immigration laws and regulations should not be considered criminal offences
under national legislation (Special Rapporteur on Human Rights of Migrants)
− criminalizing illegal entry into a country exceeds the legitimate interest of States to control
and regulate illegal immigration and leads to unnecessary detention (Working Group on
Arbitrary Detention)

Some key restrictive approaches include:

− Deportation is not a sanction from criminal proceedings, so does not require due process
protections for criminal proceedings outlined in Article 14 of the ICCPR (CCPR) (though the
Committee recognized that Article 13 due process protections should be applied in certain
ways)
− CCRP findings of when deportations constitute impermissible interferences with family life
have been extremely narrow

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IV. JWB PHASE I - INTERNATIONAL STRATEGY MEETING
Over the four-day period of 3 to 6 December 2009, the International Strategy Meeting of the JWB
initiative was held in Bamako, Mali, in the Azalaï Grand Hotel.

The following provides and overview and summary of discussions and agreements from the
International Strategy Meeting. For the full report of the meeting, see Report of the International
Strategy Meeting of JSF-JWB Project Phase I, available at www.jsf-jwb-migrants.org.

4.1. Participants

There were over 20 participants from nine countries in the meeting. These participants were
representatives from different organizations in Morocco, France, Spain, Mauritania, Mali and
Nigeria, and also three international experts, and staff and leadership of OSIWA and MRI. The
organizations represented at the meeting were:

• Association Malienne des Expulsés (AME) (Mali)

• Association Mauritanienne des Droits de L’Homme (AMDH) (Mauritania)
• La Cimade (France)
• Comisión Española de Ayuda al Refugiado (CEAR) (Spain)
• Groupe antiraciste d’accompagnement et de défense des étrangers et migrants (GADEM)
(Morocco)
• Human Rights Institute of the Nigeria Bar Association (NBA) (Nigeria)
• International Federation for Human Rights (FIDH) (international)
• Migrants Rights International (international)
• Migreurop (Europe)
• Open Society Initiative for West Africa (OSIWA) (West Africa, with office in Senegal)
• Rencontre Africaine pour la Défense des Droits de L’Homme (RADDHO) (Senegal)
• West African Public International Litigation Center (WAPILC) (West Africa, with office in
Nigeria)

Further, Hélène Cissé, an international lawyer based in Senegal, who conducted the study on the
African mechanisms, participated in the meeting.

4.2. Agenda and objectives of meeting

The objective of the Phase I International Strategy Meeting was to allow the participants to
present the research they had conducted, allow in-depth discussion on the problems, needs,
possible recourse and strategies, and to adopt agreements to launch a JWB Alliance, if participants
considered it to be useful.

The agenda of the four-day meeting was structured around these questions:

33
Day 1: Defining the problem
• What are the human rights violations linked to deportations within Africa and Europe?
• What are their causes?

Day 2: Possible recourse

• What are the available forms of recourse? (legal and advocacy)
• What has been done? What has worked and what has not?
• What could be done? (Opportunities, possible strategies, etc.)

Day 3: Building a strategy

• What are priorities for change?
• What efforts are already being made?
• What can JWB contribute?
• What could be the JWB mission, goals, vision and objectives?

Day 4: Strategies, Mission/Objectives, Plan

• What could be the JWB goal(s), mission, vision?
• What could be the specific objectives and activities for the next 1 to 2 years?
• What could be the JWB principles – for membership, for public statements?
• Can enough agreements be made to start operations and fundraising now?
• What still remains to be discussed?

4.3. Analysis and Discussions

4.3.1. DEFINING THE PROBLEM: VIOLATIONS AND THEIR CAUSES

Human rights violations linked to deportations within Africa and Europe

Participants presented the results of their research from the preparatory studies they had drafted,
generated a chart of rights violations that arise from deportations in Africa and Europe, with
characteristics of the persons affected, where the violation tends to occur, and perpetrators, and
held a discussion.

The following is a short summary of some of the information presented and discussed. See the
Strategy Meeting report for the complete discussion and chart.

During arrest and the moment of detention:

− VIOLATIONS: arbitrary arrest, racial profiling, physical abuse, intimidation, humiliation,
invasive body searches, illegal confiscation or destruction of papers and belongings;
− AFFECTED PERSONS: long term residents of Europe, persons seeking to enter Europe or
North Africa, sub-Saharan migrants, especially black Africans;
− PERPETRATORS: police, migration control authorities;
− LOCATIONS: Europe, Morocco, Libya, Mauritania, border areas

34
During detention:
− VIOLATIONS: attacks on security of person (beatings, physical restraints, sexual assault,
etc.); emotional harm (humiliation, racial insults, intimidation), inhuman conditions of
detention; lack of sufficient food, medical care, etc; prolonged detention without hearing;
− AFFECTED PERSONS: detainees;
− PERPETRATORS: officials at detention centers and camps, police, authorities overseeing a
detention;
− LOCATIONS: detention centers and camps in Europe and North Africa, police stations

In the deportation procedure:

− VIOLATIONS: violation of due process protections (authorities violate procedures
established in law, or there is a lack of any legal procedure for deportation, improper
notification, lack of interpreter, lack of legal assistance, lack of hearing, collective
deportations, improper judicial reasoning, etc.);
− AFFECTED PERSONS: persons who are subjected to deportation proceedings, persons who
are deported (without proceedings), persons who are denied entry at borders, etc.;
− PERPETRATORS: judicial or administrative authorities;
− LOCATIONS: in Europe, Morocco, Libya

During the implementation of deportation

− VIOLATIONS: physical abuse, emotional abuse, racial insults, deaths, restrictions on free
speech (persons that object to inhuman deportations are themselves arrested), migrants
are dumped in the desert;
− AFFECTED PERSONS: person being forcibly deported;
− PERPETRATORS: police, migration control authorities, airline personnel;
− LOCATIONS: in flights deporting people from Europe and Libya, desert borders between
Morocco, Algeria, Mauritania and Mali

Subsequent to the deportation

− VIOLATIONS: denial of access to justice (to pursue claims for deaths, physical and
emotional harm, deportation appeals, violation of right to seek asylum, loss of property,
etc.); deprivation of economic and social rights (poverty, unemployment, lack of adequate
housing, lack of health care, negative impacts on health); risk to life and fundamental rights
(refoulement of asylum seekers who face risks in the country of deportation); separation of
family; trauma and mental illness;
− AFFECTED PERSONS: deported migrants, asylum seekers who were refouled;
− PERPETRATORS: judicial authorities;
− LOCATIONS: Mali, Senegal, Nigeria and other countries of deportation

Causes of human rights violations linked to deportations within Africa and Europe

Participants discussed the causes of these violations, and ordered them into five main categories.
The following is a sampling of the causes identified. See the Strategy Meeting report Annex 4 for
the full list.

35
Causes identified for rights violations linked to deportation from Europe and Africa (partial list)

Causes Category 1: Inappropriate legal framework

− Laws that do not respect international human rights standards
− Legal and political principles and theories that are used to justify restrictions and violations
of migrants rights based on other interests (for instance, state sovereignty, security, etc.)
− Limited means of recourse: lack of specific procedures for recourse, limited deadlines,
conditions of admissibility, access to judge, access to lawyer, to an interpreter)
− Lack of international and national sanctions for violations – impunity

Causes Category 2: Practices that do not conform to respect of rights

− General standards for human rights are not applied to migrants properly, even by regional
and international human rights mechanisms
− Difficulties in accessing justice
− Lack of information and knowledge of laws and administrative procedures, financial
barriers, lack of translators, lack of lawyer, etc., especially during detention, and after
deportation
− Increasing xenophobia, discrimination and intolerance
− Criminalization of migrants, destructive atmosphere created by government policies
− Discrimination based on race (especially against blacks), religion, etc., by police, by citizens,
etc.
− Non-respect of procedural rules by administrative authorities, illegal practices that are
arise from political pressures (pressure to meet numerical goals for deportations, limits to
regularization)

Causes Category 3. Repressive policies that target and criminalize migrants

− Institutionalization / prevalence of confinement / generalization of collective expulsions
and criminalization of migrants:
− EU Return Directive
− Externalization policies (right to asylum at the borders, readmission accords (bilateral and
at community level), toughening of border controls, closure of borders which increases
smuggler networks, bilateral agreements on managed migration, creation of no-rights
zones pressure put on home countries
− Restrictive migration policy

Causes Category 4: Lack of information on rights and violations

− Migrants do not know their rights (which adds to difficulty of accessing justice)
− Civil society does not have information on these violations, including because of lack of
transparency at the borders, faulty information on rights violations;
− lack of training by migrants and ngos
− lack of coordination by ngos
− lack of training and information on national and international human rights standards by
judges, security forces, migration authorities,)

Causes Category 5: Lack of support to defend the rights of migrants

36
 − Insufficient legal assistance – not enough lawyers, lack of coordination between groups
− Lack of access to associations in locations where rights are violated
− Lack of access to consular protection, and/or lack of action by authorities of home country
to provide assistance
− Criminalization of assistance to migrants (pressure placed upon defenders of migrants'
rights, reduction of public subsidies …)
− Reduction in the possibilities of assistance by associations (because of lack of funds,
pressure), and by individuals because of criminalization of defenders of migrants rights

Other causes and related issues:

− Inequality between home country and destination country
− Lack of clear migration policy in Africa (African governments do not defend the rights of
their citizens)
− Lack of infrastructure and ability to collect evidence and pursue justice after a person has
been deported

4.3.2. POSSIBLE LEGAL AND OTHER RECOURSE: AFRICA, EUROPE, REGIONAL AND
INTERNATIONAL

Participants presented the results of their research on possible legal recourse at the national,
regional and international level. Some (but not all) of this information is presented below. The
participants also engaged in SWOT (Strengths, Weaknesses, Opportunities, Threats) analysis of the
regional and international mechanisms. The full report of this discussion, and the charts from the
SWOT analysis, can be found in the Strategy Meeting report.

Legal recourse in Africa (national)

Morocco - Presentation by Nadia Khrouz and Mamadou Ba of Gadem

In Morocco, a law that defines the rights of migrants exists, but courts and administrative
authorities are ignorant of, misapply, or disregard the law, or are corrupt or subject to political
pressure, so national legal recourse is usually not effective. Nevertheless, Gadem has pursued
legal cases in national jurisdictions, including an appeal of a deportation order that was based on
an outdated law, and a request for a residence permit.

Mauritania – Presentation by Youssouf Niane of AMDH

As of November 2009, there was no law that defined the rights of migrants, so legal recourse was
impossible. Even for detention centers, there was no law defining the modalities of their
operation. A new law was proposed by the government in 2009 and is being discussed. AMDH
pursues administrative action and advocates for legal reform.

Senegal – Presentation by Aboubacry Mbodji and Sadikh Niass, RADDHO

In Senegal, there is a universal jurisdiction statute that allows the filing of complaints of violations
of international law that are based on principles recognized by the International Community,
which could potentially be used to pursue justice in cases of human rights violations related to
deportations which are committed by European or North African authorities. However, this

37
statute has not yet been used to resolve a case – charges against Habré, the former dictator of
Chad, was filed under this statute, but the case is stuck because of lack of financing. RADDHO has
taken cases before the African Commission on Human Rights.

Mali – Presentation by Fadiala Dembele, supplemented by Ousmane Diarra and Alassane Dicko
In Mali, there is no law that defines migrants' rights. The criminal law recently underwent some
reforms, that allows for prosecution in Malian courts of crimes committed abroad, but this is
limited to crimes committed by Malians of Malian law, and those crimes committed by foreigners
related to national security and counterfeiting. Thus, there is little possibility in Malian courts of
pursuing justice for violations committed by European officials, for instance, against Malian
deportees. But action through regional African mechanisms may be possible (through AU,
ECOWAS, and UEMOA mechanisms.)

Nigeria – Presentation by Francis Ekwere of Nigerian Bar Association Human Rights Institute
In Nigeria, there is some possibility of filing complaints against foreign entities, in Nigerian Courts.
There is a current case pending in the High Court of Nigeria against Iberia Airlines for the 2007
death during deportation of Nigerian man (Osamuyia Aikpitanhi). Nigerian attorney Femi Falana,
the West African Bar Association, and SERAP have also pursued cases in various national bodies
abroad (U.S. Courts, ECOWAS Community Court of Justice, African Commission on Human Rights.)
See the study for details.

Legal recourse in Europe (national)

Spain – Presentation by Mauricio Valiente and Maria Esparcia, CEAR

In Spain, there are various means of recourse and appeal exist. However, legal provisions that
allow immediate effect of a deportation order, which allows the person to be deported even while
there is an appeal pending, makes pursuit of justice difficult, because once a person is deported, it
is difficult to maintain contact to continue to effectively pursue the case. But, if contact with the
person could be maintained, through collaboration with an African organization, the case can be
pursued; in some cases appeals can also be filed with the Consular authorities of Spain in Africa.

However, one of the barriers is that when a person gets deported, there is not enough evidence to
file an administrative appeal, or to analyze an individual situation; in cases of expulsion, it is
important to locate the person, but often contact is lost.

France – national recourse for violations in French territory - Presentation by Sarah Belaische and
Sonia Lokku, Cimade
In France, there are many means of national recourse to challenge violations arising from
deportations. However, short deadlines and the difficulty of understand the laws makes genuine
access to justice difficult. The recourse available is different based on the type of measure that
was taken against the migrant, and each has different deadlines, different jurisdictions, different
effects (some have suspensive effect on deportation and some do not), different response times,
etc. The basis for judicial appeals are generally the same for all types of recourse: violation of the
right to live in a family, inhuman and degrading treatment, best interest of the child, etc. See the
study for more details.

38
One of the obstacles to effective recourse is that while the role of civil society associations that
defend migrants' rights is fundamental because the law is very complex and the deadlines are
short, they are being threatened by political and financial pressures. However, legal aid (free legal
assistance provided by the state) does exist.

Cimade provides legal assistance, as well as conducts advocacy, and fosters North-South
collaboration. For instance, Cimade and the AME are partners in addressing deportations to Mali.
The “Projet Régional” of Cimade works to strengthen the capacity of organizations that work on
the rights of migrants in transit countries: Morocco, Mali, Niger, Senegal, Mauritania.

France – national recourse for violations outside of French territory – Presentation by Eva
Ottavy, Migreurop
For acts committed by French officials outside of French territory, justice can be pursued before
judicial or administrative jurisdictions. See the Migreurop study for exploration of the types of
recourse available. There are some types of recourse against the French state. There is also judicial
recourse against private persons for violations at sea or in airspace. For example, the refusal by Air
France to sell tickets based on discrimination can be pursued, as it is prohibited by French law.

Regional mechanisms

African Regional Mechanisms – Presentation by Hélène Cissé

The African Commission on Human Peoples' Rights is the principal mechanism within the African
Union for human rights protection. It has taken many progressive positions on migrants' rights,
and though it has certain limitations (such as that it is subject to political will of the AU bodies), it
has been seeking to adopt procedures and reforms to overcome its restrictions. The African
Commission can investigate and issue reports on human rights situations, as well as receive
complaints from individuals and NGOs about specific violations, on all AU member States (which
unfortunately does not include Morocco because it is not a member of the AU.)

The African Court of Human and Peoples' Rights is the judicial body with the mandate to
implement the African Charter on Human and Peoples' Rights as well as other AU human rights
instruments, but unfortunately, it is severely limited because it can effectively only accept
complaints from member States, and from the African Commission. An individual or NGO can be
given permission by the Court to submit a complaint, but only if the State in question has accepted
this type of jurisdiction – only Burkina Faso and Mali has so far done so.

The African Court of Justice and Human Rights was created by merging the African Court of
Justice and the African Court of Human and Peoples' Rights into a single court. But, it has not
started operating because it does not yet have sufficient state ratifications. When it does, the
African Court on Human and Peoples' Rights will cease to function. The African Court of Justice
and Human Rights will be able to accept complaints from State parties, the African Commission,
the African Committee of Experts on the Rights and Welfare of the Child, African inter-
governmental organizations accredited to the African Union or its bodies, national human rights

39
institutions, and, individuals and NGOs accredited by the African Union or its bodies, if the State
party has declared acceptance of this under article 8 of the Protocol.

The ECOWAS Community Court of Justice can consider cases of human rights violations, and since
a reform of the court in 2005, individuals alleging human rights violations have been permitted to
take a case before the court with no requirement of exhaustion of domestic recourse. This is the
only international jurisdiction that permits this. Any individual can file a case before the court,
even if the violation is committed by an individual or a state that is not a member of ECOWAS, if
the act that was committed in the territory of an ECOWAS state. This includes for insta nce airline
companies.

The 2005 reform, however, is being threatened. A petition was submitted by Gambia to the
community to demand prior exhaustion of domestic recourse before submitting a case to the
Court. There is an urgent need to mobilize civil society to launch an advocacy campaign to inform
about this Court and push for African states to recognize the competence of this court.

European Court of Human Rights – Presentation by Pablo Ceriani, MRI

The ECHR is the main European institution in charge of judging applications of human rights
violations involving the member states of the Council of Europe. Any individual, of any nationality,
can file an application against a member state of the Council of Europe (CoE) before the European
Court of Human Rights, for a violation of one or more rights specified in the European Convention
of Human Rights that occurred under the jurisdiction of a CoE state. The ECHR can even consider
cases that occurred outside of European territory, if it can be demonstrated that the CoE Member
State exercised jurisdiction. (But see the ECHR study for discussion on determination of when a
state has exercised jurisdiction.)

Unfortunately, the jurisprudence adopted by the European Court of Human Rights regarding
migrants’ rights is restrictive in many ways. For instance,article 6 of the European Convention,
which provides due process protections that protect the right to fair trial, generally does not apply
to procedures in relation to decisions on entry, residence and removal of migrants as well as
article 1 of Protocol 7, which expressly outlines due process standards in deportation procedures,
only applies to migrants with regular migration status. To counter this trend, Mr. Ceriani suggested
trying to use the legal principle of non-discrimination to argue for the same rules to be applied to
migrants.

With regard to return to third countries conducted within the framework of bilateral agreements,
the countries that are conducting the deportations must evaluate the situation of the country of
return as well as the risk to the person to be returned in the country of return, in order to ensure
that the person does not risk violation of Article 3 (prohibition on torture and inhuman
treatment.)Other tools that could be used include request for interim measures, seeking hearings
before the ECHR, which can be an opportunity for public advocacy (it grants very few hearings),
friendly settlements and third party interventions such as by NGOs.

International mechanisms

40
UN mechanisms – Presentation by Pablo Ceriani, MRI
At the UN level, different bodies can be used: including the treaty monitoring bodies (UN
Committees), Working Groups, and Special Rapporteurs. The treaty monitoring bodies are the
bodies that monitor compliance with the UN human rights treaties. They examine reports from
states parties of a convention on their compliance with the convention provisions, and some
Committees (though not all) also can receive individual communications (complaints) about
specific human rights violations.

There is a UN Special Rapporteur on the Human Rights of Migrants, as well as on other topics. The
Special Rapporteurs can take different action on the subject of their mandate, such as conduct
missions, produce studies and reports, or issue recommendations or urgent appeals. The Working
Groups also have mandates dedicated to specific topics (for instance, the Working Group on
Arbitrary Detentions), and can also conduct missions, issue reports, and issue recommendations
and appeals.

All these bodies have generally set up very progressive standards. These Committees have
emphasized the importance of certain rights, such as the right to due process, and listed bad
practices by states. Initiatives that can be taken using UN mechanisms include inviting Special
Rapporteurs to visit a country, or to invite them to issue urgent appeals, or submitting a “shadow
report” during the process of review of a state party report before a Committee (a civil society
report that presents alternative information from the governmental report), or filing an individual
complaint to a Committee.

4.3.3. BUILDING A TARGETED STRATEGY: PRIORITIES, EXISTING EFFORTS, NEEDS

In order to start building a strategy, participants discussed the priorities in the violations to
address, existing efforts, and current needs, through open discussion as well as case simulation
exercises. See the Strategy Meeting Report for details on the materials and discussions in these
discussions and case simulations.

Priorities

Participants had adopted a preliminary list of priority violations during Segment I. They reaffirmed
their commitment to these priorities, which are:

Priority 1: Access to justice (20 votes)

− right to proper notification before expulsion
− right to effective recourse
− access to legal counsel
− access to filing complaints

Priority 2: Violations of physical and moral integrity; Inhuman and degrading treatment (18 votes)
− During detention
− During expulsions
− During refoulements

41
Priority 3: Threats to freedom of circulation (16 votes)
− Right to leave one's country
− Possibility of return after an absence, or expulsion
− Refoulement to borders
− Right of establishment and residence

Priority 4 and 5:
• Right to freedom from deprivation of liberty and arbitrary detention (14 votes)
• Right to life (death during expulsion, refoulement, and after) (14 votes)

Participants agreed that these were the top priorities of the JWB network. However, it does not
mean that the JWB project cannot work on other rights if it so chooses.

Existing efforts

Participants discussed existing efforts to address the violations arising from deportations. These
include:
• Migreurop (Europe and Africa) works to raise awareness and combat the spreading of
detentions of foreigners; it publishes a report on detention centers every year. Migreurop
submitted a joint complaint to some European bodies regarding the refoulement of
Eritrean and Somali nationals to Libya in August 2009
• AME (Mali) offers assistance to deportees that arrive to Mali, including legal, medical,
psychological assistance. In 2008, it organized a training with Cimade to create a legal
department, and now has a law student half-time that orients migrants toward state
institutions. It conducts advocacy on European policies; there was a strong mobilization
against a proposed bilateral agreement between France and Mali in 2008.
• RADDHO (Senegal) provides legal assistance to victims of human rights violations, including
asylum seekers and refugees. It visits detention centers, provides assistance to migrants
who are deported from Europe by air, etc. It monitors the African Commission on Human
Rights, and has submitted complaints to the Commission, for instance a 1994 complaint
against Zambia for a collective expulsion. It is part of a network of 11 countries in West
Africa that aims to train and mobilize lawyers to assist refugees, but it is difficult to find
lawyers to take on work on a volunteer basis, so it is now working to train law students in
their last year of studies.
• Cimade (France) provides legal assistance to migrants in detention who are about to be
deported, taking their cases to French courts and the ECHR, publishes reports, conducts
advocacy and capacity building. It works with AME to help persons deported from France
on questions of return, recuperation of property, recovery of funds in bank accounts, and
complaints on violence during deportation. It has international projects including
partnerships with AME and AMDH, and “Regional Project” on the issue of deportation
involving joint border missions in Mali, Mauritania, Morocco, Algeria and Niger in order to
gather information about deportations, and to support capacity building activities.
• MRI (international) is a non-governmental organization and global alliance of migrant
associations and migrant rights, human rights, labor, religious, and other organizations

42
 which operate at the local, national, regional or international level. It conducts advocacy,
campaigns, organizes events, at the national and international levels. It has mobilized civil
society action around the Global Forum on Migration and Development, and campaigns for
the ratification of the Migrant Worker Convention. Its members also document violations,
produce reports, provide legal and social assistance, and conduct litigation.
• AMDH (Mauritania) raises awareness on human rights and migrants’ rights, social and
legal assistance to migrants, and advocacy. It seeks to provide assistance to migrants,
including social and legal assistance, such as by conducting procedures before
administrative authorities, including negotiation and mediation. There is little judicial
recourse in Mauritania. AMDH has filed communications to the African Commission on
Human Rights in the past.
• CEAR (Spain) provides legal assistance to migrants, submits reports to international bodies,
and is involved in international strategies in certain areas. It has a project in Nouadibhou
(Mauritania) to provide support to migrants. CEAR filed complaints before Spanish national
jurisdictions, as well as with the United Nations Committee on Torture on the Marine I
case, in which migrants on a boat were intercepted off the coast of Mauritania and
detained under the power of Spanish authorities before being deported.
• Nigerian Bar Association Human Rights Institute (Nigeria) engages in litigation and
advocacy on human rights. Considering doing a training on migrants' rights in 2010.
• Gadem (Morocco) conducts advocacy, trainings for lawyers and judges, publishes legal
practice guides and reports, awareness-raising, and mobilizations on migrants' rights., and
provides legal assistance, to sub-Saharan migrants in Morocco, as well as Moroccans
deported from European countries. It also works on issues including access to justice in
refoulements to the Algerian border.
• FIDH (international, headquarters in France) is a worldwide network of human rights
organizations. Its work for migrants include submission of testimonies to French authorities
and European institutions, and conducting missions. It has a legal network, that currently
focused primarily on the issue of universal jurisdiction.
• OSIWA (West Africa, headquarters in Senegal) is part of the global network of Soros
foundations. On migrants' rights, it has conducted studies on irregular migration in West
Africa and human rights violations against African migrants, launched a campaign to
implement the ECOWAS Protocol on Free of Movement, including supporting litigation on
the non-respect of the Protocol conducted by the West African Bar Association, and
organized activities on the Global Day of Action for Ratification of the Migrant Workers
Convention organized by MRI in 2008.
• WAPILC (West Africa, office in Nigeria) is a new organization that seeks to promote human
rights by improving the rule of law and access to justice for citizens of the sub-region. It will
provide trainings and assistance to legal practitioners, support activities of public interest
law centers, support research, strengthen capacity of national and sub-regional courts.

Needs

This is a list of some of the needs mentioned during various sessions.

• Joint gathering of evidence on violations

43
 • Joint legal assistance – work on a case collaboratively in Europe and Africa even after a
person is deported
• Strengthened ways to gather evidence, capacity building on how to gather evidence
• Need to have follow up to be able to do legal actions from start to finish
• Rapid analysis and collection of information and evidence
• Financial support, infrastructure for partners, especially African partners where many
deportees are arriving (staff, equipment). Many African partners do not have any lawyers
on staff, and some do not have sufficient staff to begin with
• Creation of legal departments/lawyers networks, at all levels
• Training for lawyers to be able to work in CEDH, etc.
• Database of violations, of legal materials like laws, judgements, legal practice manuals, etc.
• Involvement of other actors (doctors/journalists)
• Put into place an information system between the different actors (northern organizations
have access to certain information to do lobbying at national level)
• Exchange of information between European and African partner groups
• Strengthen capacity of local actors to permit exchange of information and their place in the
existing networks: Projet Regional of Cimade, observatoire of Migreurop. Starting from
what exists, and do what is not being done
• Website with legal information and tools
• Creation of groups for advocacy/lobbying before institutions and states
• Strengthen capacity of actors
• Networking, reinforce strategic partnerships
• Dissemination and awareness raising of rights of migrants
• Public information campaigns for African states to recognize the competence of the African
Court for communications from NGOs and individuals
• Urgent assistance, and orientation
• Period meetings at regional and sub-regional level
• Distinguish between emergency actions and long term actions

List of possible strategies (partial list – See Annex 7 of Strat Mtg report for full list)
• Denounce / document violations
• Pursue legal recourse, at national, regional and international level
• Strategic Litigation
• Advocacy
• Information gathering/exchange
• Develop common tools
• Provide trainings
• Thinking/analysis/strategy
• Support/strengthen local organizations
• Seek legal reform
• Seek change in state practices
• Develop networks
• Strengthen support for deported migrants
• Strengthen existing efforts

44
 • Strengthen communication between groups

4.3.4. WHAT COULD A JWB PROJECT CONTRIBUTE?

In order to discuss possible JWB goals, mission, vision, and objectives, participants engaged in
brainstorming and discussion about what a JWB network could contribute. The following are
some comments:

• JWB project can play a role in creating an efficient network of partners in the North and
the South that would give a global vision to the process of legal recourse. (Hélène Cissé)
• JWB can combine legal strategies and advocacy. (Sonia Lokku,Cimade)
• JWB project can support advocacy actions that are conducted at the European and African
level. (Sonia Lokku, Cimade)
• JWB project could help by strengthening existing networks and working groups and
enabling organizations to exchange information. (Mamadou Ba, Gadem)
• An observatory for analysis and strategy (Mamadou Ba, Gadem)
• Trainings (Mamadou Ba, Gadem and others)
• Support human rights defendres at risk in their country (Nadia Khrouz, Gadem)
• Support organizations to gather information on legislation and practices with the aim of
submitting reports to human rights committees and working groups in the UN. (Pablo
Ceriani, MRI and Aboubacry Mbodji, RADDHO)
• Raise issue of migration and migrants' rights at the African Commission (Aboubacry Mbodji,
RADDHO and Kirill Koroteev, FIDH)
• Support actions for awareness-raising for individuals and authorities (Alassane Dicko, AME
and Youssouf Niane, AMDH)
• JWB project in giving the possibility to provide legal assistance after deportation (Mauricio
Valiente, CEAR)
• Sensitize authorities on migrants' rights in national and international law (Youssouf Niane,
AMDH)
• Creation of a network through which organizations could identify cases of violations and
share testimonies (Sonia Lokku)
• Strengthen sharing of information (Eva Ottavy and many others)
• Strengthen North-South partnerships (various)
• Faciliate the gathering of testimony and information (various)
• Strengthen the follow-up on existing cases (various)
• Advocacy, campaigns (various)
• Conduct fact-finding missions. Possible collaborations on this with other groups, like
Cimade or Migreurope (Sonia Lokku, Cimade and Eva Ottavy, Migreurop)
• Creating or strengthening lawyers' networks (various)

4.4. Agreements: Justice Without Borders for Migrants is born

45
All representatives present at the Strategy Meeting were interested in working together based on
the discusssions that had been conducted over the course of the Strategy Meeting, and were
willing to start drafting agreements in order to create a Justice Without Borders network.

The basic draft of the mission, objectives, and guiding principles of the network were discussed
and agreed at the Strategy Meeting, and refined in subsequent discussion. These are presented in
the next section.

7 organizations present joined the network at the Strategy Meeting. 4 joined subsequently after
consultation within their organizations. 22

22
Migreurop decided that because three of the groups within its international steering committee have already joined
as independent members of the JWB network, including Cimade, a staff person of which was recently appointed the
Secretary-General of Migreurop, it was not necessary for Migreurop to join the JWB network now.

46
V. JUSTICE WITHOUT BORDERS FOR MIGRANTS

The following presents the agreements made to create the Justice Without Borders for Migrants
network.

5.1. Founding partners of the Justice Without Borders for Migrants

The founding partners as of July 2010 of the Justice Without Borders for Migrants network are:

• Association Malienne des Expulsés (AME) (Mali)

• Association Mauritanienne des Droits de L’Homme (AMDH) (Mauritania)
• La Cimade (France)
• Comisión Española de Ayuda al Refugiado (CEAR) (Spain)
• Groupe antiraciste d’accompagnement et de défense des étrangers et migrants (GADEM)
(Morocco)
• Human Rights Institute of the Nigeria Bar Association (NBA) (Nigeria)
• International Federation of Human Rights (FIDH) (international)
• Migrants Rights International (international)
• Open Society Initiative for West Africa (OSIWA) (West Africa)
• Rencontre Africaine pour la Défense des Droits de L’Homme (RADDHO) (Senegal)
• West African Public Interest Litigation Center (WAPILC) (West Africa)

5.2. Mission of the Justice Without Borders for Migrants

“Justice Without Borders for Migrants is a multinational network that seeks to combat violations
of migrants’ rights arising from deportations and refoulements through transnational action that
combines utilization of legal mechanisms, advocacy, documentation and reporting of abuses,
capacity building, and strengthening collaborations and communication between partners.”

5.3. Objectives of JWB-Migrants

The objectives of Justice Without Borders for Migrants are:

To seek justice for violations of migrants’ human rights linked to deportation and refoulements
and push for changes in law and policy, through:

(1) Facilitating transnational communication and collaboration between civil society

organizations across borders through: information sharing, translation assistance, joint
strategy-setting and action, nurturing of networking and partnerships, and other means;

(2) Increasing capacity of partner organizations through trainings; technical assistance in legal
and other matters such as in the search of resources; development of common tools, etc;

47
 (3) Increasing access to justice by strengthening the ability of civil society organizations to
provide multinational legal assistance to migrants;

(4) Pushing for broad institutional change through the utilization of legal mechanisms,
including strategic impact litigation at the national, regional and international level*;

(5) Conducting research, analysis, and documentation of human rights violations linked to
deportations and refoulements, including gathering, preparing and presenting information
to courts, governments, inter-governmental organizations, media, and the public; and

(6) Mobilizing transnational advocacy in order to seek reform of laws, policies and practices
that foster violations of migrants’ rights.

* 'Strategic impact litigation' refers to a legal strategy focused on carefully selecting and bringing
cases to domestic, regional or international courts, with the goal of creating broader changes in laws,
policies, practices, and attitudes. It is distinguished from general “legal services”, which implies the
provision of legal assistance to any individual that needs it. Legal assistance should be offered to as
any who requests it (to the extent possible), whereas strategic impact litigation requires focusing on
a carefully selected range of cases according to certain criteria (due to lack of resources, as well as
strategic considerations.)”

5.4. Methodology of JWB-Migrants

“Achieve stronger impact, with greater efficiency, through:

• Increasing synergies of existing organizations, rather than duplicating or replacing ongoing
efforts;
• Producing a transnational collaboration that brings together organizations in North and
South; in countries of origin, transit, and destination; and countries executing deportations
and refoulements, and countries receiving deportees and persons who are refouled;
• Carefully constructing strategies which combine legal and advocacy mechanisms, that are
based on in-depth analysis and aimed at structural change;
• Facilitating communication and collaboration between JWB partners, and fostering global
solidarity
• Supporting and building capacities of partner organizations”

5.5. Guiding principles of the JWB-Migrants

The guiding principles of the JWB-Migrants are:

• “Migrants have inherent human dignity and human rights, including civil, political,
economic, social and cultural rights.
• Governments should reform policies or practices that violate the rights of migrants,
including the right to access to justice, the right to security of person (including the right

48
 not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment), the right to freedom of movement and residence, the right to life, the right
to freedom from arbitrary detention, right to protection of the family, right to seek asylum,
right to protection of the best interest of the child, right to property, social rights, and right
to health, as well as the right to respect of human dignity, the right to freedom from
discrimination, and the right to due process.
• Governments should reform laws, policies and practices that allow human rights violations
linked to deportations and refoulements, including those which permit collective or forced
deportations; deportation without respect for due process of law, or for the other rights of
migrants such as the right to protection of private and family life; and refoulements and
deportations to a country where migrants would face risk of persecution or other harm.
• Governments should reform laws, policies and practices that allow arbitrary arrest or
detention, the criminalization of migrants, or the detention of migrants solely for migration
infractions. The highest respect must be given to the right to liberty, including the principle
that detention should only be utilized as an exceptional measure of last resort.
• Governments have the obligation, under national, regional and international law, to
respect, protect and fulfill the human rights of migrants without discrimination, regardless
of their migration status.
• In the case of violation of their rights, migrants must have access to justice and effective
remedy without regard to borders, even if they have been deported.
• Migrants should have special protections because of the inherent vulnerability arising from
their status as migrants. Further, if a migrant is in one or more additional situations of
vulnerability, he or she should also have the benefit of all systems of protection applicable
to these specific situations, including those that are provided for asylum seekers and
refugees, migrant women, migrant children, families of migrants, and human rights
defenders.**
• The voice of migrants and civil society should be heard and taken into account in the
formulation of policies that affect migrants’ rights. Migrants and human rights defenders
should be guaranteed conditions that allow for their effective participation, including
through respect and protection of their freedom of opinion and expression.

** Convention and Protocol Relating to the Status of Refugees, Convention on the Elimination of
All Forms of Discrimination Against Women, Convention on the Rights of the Child, Convention on
the Rights of All Migrant Workers and Members of Their Families, and Declaration on Human
Rights Defenders, etc.”

5.6. Interim Structure and Activities: Committees and Working Groups

Tere was not sufficient time to have a full discussion on the organizational structure of the JWB
Migrants, however, informal agreements were made on an interim structure, and a commitment
to have fuller discussion afterwards.

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AGREEMENTS MADE ON INTERIM STRUCTURE:

Interim coordination: Naomi Onaga

Legal Committee: AME, AMDH, CEAR, FIDH, La Cimade, Gadem, FIDH, MRI, NBA, OSIWA,
RADDHO, WAPILC

Advocacy Committee: AME, AMDH, FIDH, La Cimade, Gadem, OSIWA, RADDHO, WAPILC

Research and Documentation Committee: FIDH, La Cimade, OSIWA, WAPILC

Capacity Building Committee: La Cimade, CEAR, OSIWA, WAPILC

Fundraising Committee: La Cimade, OSIWA

Communications Committee: AME, CEAR, FIDH, La Cimade, OSIWA, WAPILC

PRELIMINARY WORKING GROUPS

It was not possible at the Strategy Meeting to complete full discussions on a work plan, as would
have been ideal.

However, partners adopted some preliminary agreements for activities to initiate for 2010, and
formed working groups on these. They agreed to have fuller discussion in a full Work Plan for
2010-2012 over the next months. The working groups that were created around projects
identified were:

WORKING GROUP 1 – LIBYA-AFRICAN COMMISSION

Filing of a complaint against Libya before the Africa Commission on Human and Peoples’
Rights, on collective deportation and other violations
Members: AME, FIDH, NBA-HR, Hélène Cissé, OSIWA, WAPILC

WORKING GROUP 2 – MOROCCO UNCERD

Work on the preparation of a shadow (civil society) report on Morocco to United Nations
Committee on Elimination of Racial Discrimination, on discrimination against migrants
(especially Sub-Saharan migrants)
Members: FIDH, GADEM

WORKING GROUP 3 – SENEGAL-UNCMW

Work on the preparation of a shadow (civil society) report on Senegal, to the UN
Committee on Migrant Workers, to criticize bilateral agreements signed by Senegal –
Members: AMDH, FIDH, RADDHO, OSIWA, CEAR, MRI

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WORKING GROUP 4 – MALI-UNCESCR
Work on the preparation of a shadow (civil society) report on Mali, to the UN Committee
on Economic, Social and Cultural Rights, to criticize failure to fulfill economic, social and
cultural rights, which fuels forced migration.
Members: AME, FIDH, RADDHO, CEAR,WAPILC.

WORKING GROUP 5 – MAURITANIA-UN AND AFRICAN COMMISSION

Exploration of invitation of a UN special rapporteur to Mauritania and preparation of a
complaint before the African Commission, against Mauritania
Members: AMDH, FIDH, RADDHO, La Cimade, Hélène Cissé, OSIWA, CEAR

WORKING GROUP 6. STRATEGIC LITIGATION AND ACTION ON EUROPEAN POLICY

Exploration of strategy for research and analysis, litigation, advocacy, lobbying and other
action to impact European policy, on issues such as the European Return Directive,
FRONTEX, bilateral agreements with African countries, etc.
Members: AME, FIDH, La Cimade

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Conclusion
The creation of the Justice Without Borders for Migrants network was built upon a strong
foundation of research, strategic analysis, and discussions. All participants in the international
strategy meeting in December 2009, each highly experienced in the field, agreed on the urgency of
creating new forms of transnational collaborations, to support and strengthen each other, to
pursue justice and to combat impunity, and to increase capacities, impact, and efficiencies.

A post-script is that just days after the end of the international strategy meeting in Bamako, there
was a mass deportation of around 150 persons to the city from Libya. They arrived in shock,
obviously traumatized. Some were injured, and spoke of being mistreated. But while AME of Mali
and two attorneys affiliated with the JSF-JWB project tried, with the assistance of Cimade, to
respond to the emergency, it was clear that an infrastructure was not in place to be able respond
adequately, neither to provide the victims with sufficient material support, nor to collect evidence
to be able to produce a detailed public report or lay the basis for litigation. It was a clear
illustration of why AME, as well as other JWB Migrant partners, had repeatedly stressed the need
to strengthen the infrastructure for legal assistance in each country, such as by creating or
mobilizing national attorneys' networks, and providing trainings on migrants' rights and evidence
collection.

This is not an isolated experience. All of us in the struggle to defend the rights of migrants know
that more solidarity, fluidity of communication, mutual support and strengthened capacity have
long been needed. According to Gadem, there were difficulties in implementing a cohesive legal
response to the events of Ceuta and Melilla in 2006 because of the lack at the time of a
consolidated network and because of impediments to communication, including language barriers
between Spanish and Moroccan organizations. Each of us have had to face similar tragedies.

The process of building genuinely supportive and stable collaborations is neither easy nor quick.
But it is an integral aspect of a long-term strategy to counter the powerful forces at play that seek
to divide along borders, nationalities, races, and cultures. The partners of JWB Migrants made a
commitment to a journey that embarks in the direction of justice, unity and solidarity. Over the
coming months, and years, they will be exploring and testing strategies aimed to better support
each other, and increase synergies: facilitating the sharing of information through linking groups,
providing a shared web space, and offering translation assistance; strengthening reporting of
rights violations and legal actions through development of infrastructure, volunteer legal
networks, trainings and the generation of resources for partner groups; raising the quality of
documentation and legal actions through establishing common standards for evidence collection –
these are but some of the ideas in discussion.

But the focus of the JWB Migrants network is not to benefit not only its founding partners, but to
radiate outward to foster solidarity with all allies and defenders of migrants. And that together,
we will all move resolutely toward a world imbued with justice, equality, human rights and human
dignity for all, without borders.

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Annex 1. Founding Partners of JSF-JWB Migrants
Association Maliennes des Expulsés (AME)
Bamako, Mali expulsesmaliensbasta@yahoo.fr
A.M.E is an organization whose mission to accompany and defend Malians and other Africans who have been
expelled to Mali, and assert their fundamental rights. AME provides legal, medical and social assistance to
migrants sent back to Mali, and advocates for migrants rights by raising awareness and mobilizing public
opinion on the issue of migrants rights.

Association Mauritanienne des Droits de l'Homme (AMDH)

Mauritania www.amdhrim.com
AMDH is an organization which aims at raising awareness on human rights issues and advocating for and
assisting victims of human rights violations. This work is conducted at a national, regional and international
level, in partnership with other non-governmental organizations in Europe and Africa.

Comisión Española de Ayuda al Refugiado (CEAR)

Madrid, Spain www.cear.es
CEAR is an organization whose objective is to defend and promote human rights of refugees, stateless
persons and migrants in need of international protection and at risk of social exclusion. Its activities include
social assistance for migrants regarding their integration through a range of different services and
programs, legal assistance that is provided by more than 150 lawyers, national and international
campaigns, trainings and publications. CEAR is a member of several international networks.

Groupe antiraciste d’accompagnement et de défense des étrangers et migrants (GADEM)

Rabat, Morocco gademm@gmail.com
GADEM is a rights association whose mission is to participate in the effective implementation of the rights
of foreigners and migrants, to promote respect of their dignity and equal treatment, and to fight against all
forms of discrimination and racism. Gadem provides legal assistance to migrants, and engages in policy
work and research: it published reports focusing on issues such as legislation applicable to migrants or the
situation of specific categories of migrants. This organization also tries to raise awareness and educate civil
society on migrants issues by producing practical guides and information brochure on migrants’ rights.

International Federation of Human Rights (FIDH)

Paris, France www.fidh.org
FIDH is a federation of 141 member organizations worldwide supported by a network of local partners
whose mandate is to contribute to the respect of all the rights defined in the Universal Declaration of
Human Rights. FIDH aims at obtaining effective improvements in the protection of victims, the prevention
of Human Rights violations and the sanction of their perpetrators. Its activities range from judicial enquiry,
trial observation, research, advocacy and litigation.

La Cimade
Paris, France www.lacimade.org
La Cimade is an organization that provides legal assistance to migrants on their rights. La Cimade also gives
legal assistance to migrants in detention that are facing deportation. This organization advocates for the
respect of migrants’ fundamental rights by mobilizing public opinion and pushing for changes in legislation.
La Cimade regularly publishes reports on conditions in detention centers for migrants, compilations of

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migrants’ testimonies and other reports on specific issues related to migrants rights such as the asylum
system. It also conducts campaigns on migrants’ rights at a national and international level. It works in close
collaboration with organizations in the South by supporting projects related to migrants’ rights.

Migrants Rights International (MRI)

Geneva, Switzerland www.migrantwatch.org
Migrants Rights International (MRI) is a non-governmental organization and global alliance of migrant
associations and migrant rights, human rights, labor, religious, and other organizations which operate at
the local, national, regional or international levels. Its mission is to advocate for the respect, protection and
fulfilment of the full range of human rights of migrants around the world and to foster unity and the
inclusion of migrant voices at all levels of policy making. Its membership currently brings together over 500
organizations in Africa, the Americas, Asia, and Europe; it has consultative status with UN ECOSOC.

Nigerian Bar Association (NBA) Human Rights Institute

Lagos, Nigeria www.hri.nigerianbar.org
The Nigerian Bar Association Human Right Institute was established to promote and protect the rule of law,
independence of the legal profession effectively and efficiently and to advance human rights enforcement
in Nigeria. Its activities include litigation and advocacy for human rights violations and it is also engaged in
pro bono activities.

Open Society Initiative for West Africa (OSIWA)

Dakar, Senegal www.osiwa.org
The Open Society Initiative for West Africa (OSIWA) is part of the global network of autonomous Soros
Foundations. OSIWA promotes open societies where democracy, good governance, the rule of law, basic
freedoms and widespread civic participation prevail. It supports civil society communities and advocates to
governments on issues of governance; law, justice and human rights; public health and development;
information, communication technology, and media. OSIWA launched an OSIWA Advocacy Campaign on
Migration and Free Movement in 2000.

Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO)

Dakar, Senegal www.raddho.org
Raddho is an organization that aims to promote, defend and protect human rights in Senegal and in Africa.
The organization assists asylum seekers in asylum applications, as well as provides assistance to migrants in
detention, and has been involved in advocacy on issues related to migration, such as awareness on the is -
sue of readmission agreements between Senegal and European countries. It has also filed communications
to the African Commission of Human Rights on migrants' rights. Raddho is a member of Waripnet, a net-
work of 11 West African organizations.

West African Public Interest Litigation Center (WAPILC)

Abuja, Nigeria http://www.wapilc.org
WAPILC is a new organization that will seek to promote human rights by improving the rule of law and
access to justice for citizens of the sub-region. Among other activities, it will provide trainings an d
assistance to legal practitioners, judicial officers and other stakeholders on human rights and public interest
litigation issues; support activities of existing public interest law centers and serve as a resource base for PIL
cases; and support research in areas that would enable the development of human rights and rule of law
jurisprudence in West Africa; and produce research and amicus curiae submissions.

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Annex 2. List of publications produced as part of JWB Phase I

JSF-JWB I JSF-JWB Project, Toward Justice Without Borders for Migrants: Report of Phase I of the JSF-
JWB Project (JSF-JWB Project: July 2010) English; French

JSF-JWB I JSF-JWB Project, Report of Strategy Meeting of JWB Project Phase I – December 2009 (JSF-
JWB Project:July 2010) English original; French translation

FRANCE La Cimade, Violations of Migrants' Rights and Possible Means of Recourse: FRANCE (JSF-
(national recourse for JWB Project: September 2009) French original; English translation
violations within French
territory)

FRANCE Sara CASELLA COLOMBEAU & Lola SCHULMANN (Migreurop), Violations of Migrants'
(national recourse for Rights Committed or Caused by French Authorities or Nationals Outside of French Territory:
extraterritorial acts) Means of Recourse (JSF-JWB Project:November 2009) French original; English translation

MALI Amadou Tiéoulé DIARRA & Alassane DICKO (Association Malienne des Expulsés – AME),
Human rights of migrants who have been deported or forcibly returned to Mali: Violations and
possible recourse, November 2009 French original; English translation

MAURITANIA Oumou SOW, Fatimata MBAYE & Youssouff NIANE (Association Mauritanienne des Droits de
l'Homme - AMDH), Violations Committed Against West African Deportees: Mauritania (JSF-
JWB I: Novembre 2009). Original en français; Traduction en anglais
MOROCCO Groupe antiraciste d’accompagnement et de défense des étrangers et migrants (GADEM),
The Human Rights of Sub-Saharan Migrants: Morocco (JSF-JWB Project November 2009)
French original; English translation

NIGERIA Ayodele ATSENUWA & Aderanti ADEPOJU (Network of Migration Research on Africa –
NOMRA), Rights of African Migrants and Deportees - A Nigerian Case Study (JSF-JWB
Project: November 2009). English original; French translation

SENEGAL M. Aboubacry MBODJI & M. Sadikh NIASS (Rencontre Africaine pour la Défense des Droits
de l’Homme – RADDHO), Study on the Rights of Migrants, Procedures for Judicial Recourse
and Jurisprudence in Senegal, December 2009 French original; English translation

SPAIN Comisión Española de Ayuda al Refugiado (CEAR) & Migrants Rights International (MRI),
Migration Control Policies and the Human Rights of Migrants: Jurisprudence and Remedies in
Spanish Courts to Litigate Cases of Abuse in the Deportation of African Migrants (JSF-JWB
Project: December 2009) Spanish original; English and French translation

AFRICAN REGIONAL Hélène CISSÉ, The Protection of the Fundamental Human Rights of West African Migrants:
MECHANISMS Possible Recourse to African Regional and Sub-Regional Mechanisms (JSF-JWB Project:
November 2009) French original; English translation

EUROPEAN COURT International Federation of Human Rights (FIDH) & Migrants Rights International (MRI), The
OF HUMAN RIGHTS European Court of Human Rights and the Rights of Migrants Affected by Deportation Policies:
Procedures and Jurisprudence (JSF-JWB Project:December 2009) English original; French
translation

UNITED NATIONS Pablo Ceriani (Migrants Rights International – MRI), UN Mechanisms for Recourse for
MECHANISMS Violations of Migrants´ Rights ((JSF-JWB Project:November 2009) English original; French
translation

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Projet Justice Sans Frontières
Justice Without Borders Project
Une initiative de MRI et OSIWA / An MRI and OSIWA initiative

justice@jsfjwb.org
www.jsf-jwb-migrants.org

Migrants Rights International (MRI) Open Society Initiative for West Africa
P.O. Box 135 (OSIWA)
1211 Geneva 20 Street Address: Stèle Mermoz - N° 100
Switzerland Rue ElHadj Ibrahima Niasse x rue PCCI, Dakar
mri.justice@yahoo.com Postal address: BP 008, Dakar-Fann
migrantsrightsinternational@gmail.com Sénégal
Tel/Fax 41-22-788-2873 Tel 221 33 869 1024 – Fax 221 33 824 0942
Email: osiwa-dakar@osiwa.org
Website www.osiwa.org

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