TUNIS (8 June 2012):
Following an invitation by the Government, I conducted a visit to Tunisia from 3 to 8 June 2012 to investigate the situation of migrants in Tunisia within the broader context of the management of the external borders of the European Union (EU) in the Mediterranean region.
During my 6 day visit, I visited Tunis (تونس), the Port of Zarsis (جرجيس)), the border point with Libya at Ras Jedir (رأس جدير), places of migrant detention, including prisons and reception centers, and the Choucha Refugee camp. I have collected a significant amount of information from Government representatives, civil society and international organisations, and from meetings with migrants from a range of countries who themselves are currently residing in Tunisia, with a view to assessing their human rights situation, including how they are impacted by laws, policies and practices resulting both from Tunisian government initiatives and from EU policy regarding regional border control.
I would like to express my appreciation for the support and cooperation the Government provided in planning and coordinating the visit. I would also like to sincerely thank the Office of the United Nations High Commissioner for Human Rights in Tunis, for their indispensible support and assistance in bringing this mission into fruition.
My mission has been carried out in the context of my year long study of the human rights of migrants at the borders of the EU. In the coming months, I will be visiting other key points of entry and departure into the European Union, with missions to Turkey, Italy and Greece. I will then review the extensive information I will have received in order to develop a thematic study on the issue in question. This report will be made public, and will be presented to the UN Human Rights Council in June 2013. I trust that it will be of use to the Governments of each of the countries visited, as well as to the EU itself, to develop durable solutions for migrants in the region, including on the important issue of the management of borders, adopting a rights based approach in accordance with the fundamental principles of human rights law.
In the first place, I would like to congratulate the Government of Tunisia for the way in which it has dealt with the turbulent events of its Revolution of 2011. In particular, I applaud the Tunisian authorities and its people, for the peaceful transition it has achieved thus far, and the openness of the transitional government to adopting a human rights framework in building a new democratic Tunisia.
I also commend Tunisia’s approach to the crisis across the border in neighboring Libya during this past year. I have learned that during the crisis, Tunisia opened its borders and welcomed up to 1 million persons fleeing Libya. In view of the fact that the majority of these persons have not remained in Tunisia, Tunisia has demonstrated how flexible, humanitarian approaches to migration crises can not only benefit people in need, but in fact become a tool that actively promote and protect human rights during situations of crisis.
I am also aware that as a result of the Arab Spring there has been much discussion within Europe regarding migration from North Africa.
Indeed, both the Tunisian Revolution and the crisis in Libya have had considerable impact on the discourse of migration and European borders. However, from the information that I have gathered, it is evident that whilst during the peak of the Tunisian Revolution there were some significant flows of Tunisian migrants across the Mediterranean to Italy, the total numbers were in fact rather low. This is particularly so when one considers the number of migrants that Tunisia accommodated from Libya. Furthermore, despite widespread fears by some EU member states of an ongoing irregular influx of Tunisians to Europe, the flow experienced in 2011 appears to have been a sui generis response to the Tunisian Revolution, and not an ongoing reality.
I further observe that Tunisian ports do not appear to be the main departure points for those trying to reach Europe by sea. I have received various reports indicating that Libya remains the key route through which migrants attempt the treacherous crossing of the Mediterranean. Nonetheless, Tunisian authorities, including the Garde Nationale Maritime, have the obligation to protect all persons in distress at sea. They should be commended for their recent activity regarding a boat in the Mediterranean, which had over 60 persons on board, including many Somalis including women and children. Despite the proximity of the boat to the Italian and Maltese territories, in this case it was the Tunisian coast guard who rescued the sinking ship, and brought the passengers safely to Tunisia where they were received at the Choucha refugee camp, and are now awaiting processing. Having met with some of these individuals at Choucha, I encourage Tunisia to continue this practice of placing the human rights of migrants at the forefront of all border maritime operations.
Nevertheless, I learned that a large majority of regional migration initiatives coming from the EU continue to be focused on issues of border control, and do not consider important issues such as the facilitation of regular migration channels. Thus I encourage the European authorities to develop, in the context of the Migration and Mobility Partnership currently being negotiated, and in conjunction with bilateral agreements of the Member States of the Union, a more nuanced policy of migration cooperation with Tunisia, which moves beyond security issues to develop new initiatives in consultation and in real partnership with Tunisian authorities, which place at their core the respect, protection and promotion of the human rights of migrants.
However, I did observe some issues regarding the human rights of migrants in Tunisia that require further attention. Firstly, I am concerned that irregular border crossing remains a criminal offence in Tunisia (franchissement illégal de la frontière). This contravenes fundamental principles of human rights including the right to leave ones country (Art. 12, ICCPR). Whilst the Tunisian authorities insist that this is not regularly applied against Tunisians, I learned of cases where it was in fact used, including against foreigners entering Tunisia irregularly, and who were subsequently imprisoned for the alleged offence. I also met with an unaccompanied minor who had been charged with crossing the border into Tunisia illegally. He was sentenced to 9 days prison, which he served in a juvenile facility, and was thereafter transferred to a detention center awaiting deportation.
Furthermore, I remained concerned about the fact that there is no adequate refugee status determination procedure in Tunisia. I have learned from the Tunisian authorities that this is currently under review, and I would encourage the swift passage of this into law to ensure a comprehensive legal framework that would protect all refugees and asylum seekers in Tunisia. In this context, I also heard reports that some third country nationals cross the border irregularly in an attempt to reach the Choucha camp and make an asylum claim. However, it was reported to me that sometimes, if they are caught by Tunisian authorities before reaching the camp, they are pushed back to Libya. Thus, the establishment of a clear asylum determination procedure, would protect the rights of these vulnerable individuals, and may better facilitate the early recognition of certain categories of migrants crossing the border into Tunisia who may be deserving of refugee protection.
Moreover, migrants who either find themselves without valid documents or who have served a prison sentence are often sent to ‘centres d’accueil et d’orientation’ in order to be deported. I visited one such center, Ouardia, in the South of Tunis. Whilst the facilities were commendable, persons in these centres are not free to leave. I would like to stress that even though the Tunisian government insist that Ouardia and other such centres are “centres d’accueil et d’orientation”, as long as persons are deprived of their liberty in these facilities, they are in fact detention centres. I am particularly concerned that minors are held in these centres as well. In the case of a particular minor I met with, he had been in the center for 21 days, had not been in touch with his family, who were not aware of his whereabouts, and he was not allowed to meet with consular authorities until he self harmed in order to get the attention of the staff. Detention should be a measure of last resort, alternatives to detention should be developed, and detention should certainly never be applied against unaccompanied minors.
I also met with migrants who had been charged with criminal offences and who find themselves detained in Tunisian prisons. Many of these migrant detainees claimed that they had no access to a lawyer or the ability to make phone calls to family members or consular authorities. I also remain concerned about the detention of some young Libyan men, allegedly for drug consumption. Though they deny having possessed any drugs in Tunisia, the cases against these individuals are reportedly based on blood or urine analysis, which they claim reveal drug consumption before entering Tunisian territory, which could indicate no crime actually committed on Tunisian soil. Many of these migrants suspect these charges are being used as a pretext for detaining them as Libyan nationals in Tunisia. I thus urge that due process of law be granted to all migrants when facing criminal charges, and they be afforded all the rights and guarantees provided for in international law.
Furthermore, I am also concerned by the fact that some Tunisians, who I met with and who were in pre-trial detention, have been charged with participation in smuggling of migrants, even though their participation had been limited to peripheral acts and they did not appear to be connected with the organization of the smuggling operations.
Bearing in mind the fragile state of democratic transition in which Tunisia finds itself, I thus strongly recommend the consolidation of a human rights-based approach, which must ensure the respect, protection and promotion of all the rights of all persons within Tunisia, including citizens and non-citizens alike.
Recommendations to the Tunisian government:
- Ensure the protection of all human rights for everyone, including migrants, regardless of their status, in the new Constitution.
- Establish an independent national human rights institution in accordance with the Paris Principles, with a mandate to monitor the human rights of everyone in the territory or under the jurisdiction of Tunisian authorities, including migrants.
- Ensure that the National Preventive Mechanism which is in the process of being created, as required by the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, is mandated to visit all places where migrants may be deprived of their liberty.
- Decriminalize irregular border crossings.
- Create a national asylum determination process in conformity with international standards.
- Ensure that all migrants deprived of their liberty are able to promptly contact their family and a lawyer, which should be free of charge if necessary. Migrants who are not able to pay for their own deportation should not be kept in detention.
- Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
- Encourage and support independent NGOs that support migrants.
Recommendations to the European Union:
- Continue supporting the democratic transition in Tunisia, while fully respecting all human rights for all, including for migrants
- In the context of the Migration and Mobility Partnership currently being negotiated, adopt a more nuanced approach to migration policy with Tunisia, that moves beyond security and border control discourse and develops a real partnership that focuses on the respect, protection and promotion of the human rights of migrants.
- Equally encourage individual EU member states with bilateral migration related agreements with Tunisia place human rights at the core of these agreements.
- Ensure that its member states take all necessary measures to rescue migrants in distress in the Mediterranean sea, including rescuing ships and taking those on board to a safe port of disembarkation, and intensify its efforts to search for the 300 Tunisians who are reported to have disappeared in the Mediterranean sea.
François Crépeau (Canada) was appointed Special Rapporteur on the human rights of migrants in June 2011 by the UN Human Rights Council, for an initial period of three years. As Special Rapporteur, he is independent from any government or organization and serves in his individual capacity. Mr. Crépeau is also Full Professor at the Faculty of Law of McGill University, in Montréal, where he holds the Hans and Tamar Oppenheimer Chair in Public International Law and is scientific director of the Centre for Human Rights and Legal Pluralism.
Learn more about the Special Rapporteur’s mandate and activities, log on to: http://www2.ohchr.org/english/issues/migration/rapporteur/index.htm
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