Welcome to the first Newsletter from Last Rights. Please do not reply directly to this email, but contact us here. If you should  wish to unsubscribe.

View this email in your browser

This Attic marble grave stele from Keratea, Attica, 4th century BC shows a scene of dexiosis or farewell (Benaki Museum, Athens). The deceased is represented seated and bidding her loved ones farewell. It shows, down the years, how important it has been for people to know and mark the final resting place of a loved one, to be able to say goodbye, to mourn, to grieve, to be able to return to that grave to talk to the loved one whenever the need should arise.

For so many migrants who lose a family member in the course of a migrant journey that is not the case. As has been said in the Last Rights Legal Statement and Commentary (May 2017 revised in September 2017), large numbers of refugees and migrants die or go missing at international land and sea borders. The names of most of the missing and dead are not known; their families have not been traced; where bodies have been found, they are often buried in unmarked graves. Families do not know if a missing relative – a parent, spouse, brother, sister or child – is alive or dead. The Legal Statement and Commentary seek to clarify the steps states should take to search for the missing, investigate the deaths, identify those who die, provide a decent burial for the dead [whether or not they have been identified], and trace their families, including their children.

In the legitimate exercise of their fundamental right to seek and enjoy asylum from persecution, enshrined in article 14 of the 1948 Universal Declaration of Human Rights, and in their search for a place to live where they may enjoy a minimum level of safety and security, and economic, social and cultural rights, thousands of children, women and men die every year in their efforts to enter Europe irregularly. Most of these deaths are by drowning in the Mediterranean Sea.

There is a substantial body of legal principles and rules in both customary and treaty law that applies to the treatment of the dead in the context of armed conflict. These principles and rules derive from what the Hague Conventions call ‘the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’ and what the International Court of Justice referred to as ‘elementary considerations of humanity, even more exacting in peace than in war’. But while international law addresses the treatment of the dead and next of kin in armed conflict, the obligations on states in respect of persons who die outside the context of an armed conflict have received less attention.

This statement is intended to address that issue. It draws upon international human rights law, international humanitarian law, international criminal law and international maritime law. The revised version of September 2017 benefits from the contribution of the International Maritime Organisation (‘IMO’) to whom we are grateful. It is premised on the principle that until there is a more adequate codification of the law applicable to their human rights obligations with respect to the dead, missing and bereaved, States remain bound by treaty obligations including the duty to respect human dignity.

This Last Rights Legal Statement and Commentary had Europe, where so many have died in recent years, in its vision, but Last Rights has not only a European but a global focus and therefore has also been considering international law more widely and it is this that will form the basis of the next stage of our work: the new protocol on the rights of the missing, the dead and their bereaved, best practice and procedure for all those working with these groups, plus an explanatory note. To learn more, see the posts in this newsletter on the consultation  and the expert working group.

On 15 August 2017 the report of the Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions, Agnes Callamard, was issued.

As is said in the Summary, the report concentrates on the mass casualties of refugees and migrants in the course of their flight and addresses killings by both State and non-State actors, denouncing the regime of impunity, worsened by an absence of accurate data on the dead and missing. The Special Rapporteur calls urgently on States to address this human rights crisis by prioritising the protection of the right to life in their migration and refugee policies.

The report also presents best practices in search and rescue operations and for the dignified treatment of the dead, pointing out that States do not implement them as they should, and fail to respond to them adequately. Dr Callamard adds:

" ... that the equal protection of all lives, regardless of migration status, is a central underpinning of the entire international human rights system. It must be upheld in the context of the movement of people and must form the foundation of all governmental and intergovernmental policies."

Dr Callamard notes that in an environment that has seen the criminalisation of the movement of refugees and migrants, countries around the world have designed policies based on deterrence, militarisation and extraterritoriality which, implicitly or explicitly may tolerate the risk of migrant deaths as part of an effective control of entry. Deterrence policies are punitive, including strict detention and return, funnelling migration flows into more hazardous terrain. Although these policies and those of externalisation, militarisation and securitisation of borders are often claimed to disrupt the business model of smuggling, most experts, says the report, agree that they make migrants more dependent upon the smugglers, putting their lives at even greater risk.

Thousands of refugees and migrants die or are killed every year. The International Organization for Migration admits that determining how many die or are killed is “a great challenge”, that, at a minimum, 46,000 migrants have lost their lives or have gone missing worldwide since 2000 and that the: “true number of migrant deaths around the world is surely greater, however. Countless bodies are never found, countless missing persons are never reported; fatal journeys lost from all record”. (See Tara Brian and Frank Laczko, Fatal Journeys: Identification and Tracing of Dead and Missing Migrants, Vol 2, IOM, Geneva 2016) (Last Rights Documents & Links)

We are pleased to note that the report examines the duties of States, as highlighted in the Legal Statement and Commentary, to search, identify and trace as well as to protect dignity in death and burial. In so doing, the Special Rapporteur draws on the work of the Last Rights project among others. Importantly, her Recommendations include:

“B. International cooperation for dignified treatment of the dead: 2018

86. The Global Compacts or their follow-up mechanisms should consider the establishment of an international inquiry and truth commission to uncover and reveal the extent of massive violations of people on the move, including their unlawful deaths, and recommend any follow-up actions for accountability and against impunity and for collective memory.

87. They should establish an international permanent multi-stakeholder mechanism for the governance and coordination of search, identification and tracing activities for missing refugees and migrants, including human rights-based protocols for search and rescue in borders areas and other terrain, such as deserts.
 

We are also pleased to note the recommendation for the establishment of an international permanent multi-stakeholder mechanism including human rights based protocols and international best practices regarding the dignified treatment of the dead. Of course, this is the very work in which we have been engaged for some while now and the first draft of the Last Rights protocol is expected to be complete by the end of the year. Last Rights endorses Dr Callamard’s statement at paragraph 65 of her report, that the high number of unknown and untraced dead:

“…represents one of the great untold tragedies of this catastrophe, one that triggers the responsibility of States to provide dignity and accountability in death.”

and reiterates the call, made widely, for the creation of humanitarian visas for those in need of international protection, as well as other lawful routes to migration for those in need of or wishing to achieve economic betterment or to move for other reasons.

Without the provision of safe passage and while States fail to meet their obligations in international law such as those under the 1951 Refugee Convention, refugees and migrants will continue to move and will continue to die unlawful, needless deaths.

As soon as the first draft of the protocol is ready, likely before the end of the year (2017), it will be circulated widely to all concerned together with a consultation document, in electronic form for speed and ease of response. If you would like to be included in this exercise, please do send an email via the Last Rights website (www.lastrights.net) so that we can add your name to our list. All replies will be appreciated and will help us to improve the subsequent draft(s) in readiness for the expert working group meeting that will take place next Spring.

This meeting is now fixed for 10th and 11th May 2018 on the island of Lesbos. Following the electronic consultation, we plan to hold a two-day meeting of a working group of international experts, on Lesbos, attended (invitation only) by representatives of refugees and migrants as well as representatives of all those working with them, to discuss and agree the documents. There will be speakers from the representative groups and a keynote speech from M. Francois Crepeau, the UN Rapporteur on the Human Rights of Migrants (2011-2017). The meeting of the working group will be a most important stage in order to achieve agreement not only on the part of refugees and migrants and those who work with them, but also as a vital means of helping to persuade states and other authorities/entities to come on board. On day two, the Mytilini Declaration will be signed (by those who wish) in a public ceremony.

The explanatory note will likewise be prepared for the meeting and with the protocol, will be promoted to all beneficiaries including groups e.g. refugees and migrants; all working with missing and dead migrants and the bereaved; civil society including academics, and of course states, as it may be put to use immediately, followed by promotion to the EU; CoE and UN.

Please get in touch with us through our website to let us know your thoughts and ideas about this newsletter, if you would like to be part of the consultation exercise or to participate in the Last Rights project in another way.

If you can, please donate via the MyDonate button below. Help someone to say goodbye.