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Addressing root causes of Europe’s immigration crisis through extraterritorial measures

Friederycke Haijer, Jeff Handmaker | 04 February 2016

To effectively deal with migration, the European Union needs to improve its use of extraterritorial jurisdiction in two fields: corruption and international crimes.

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Rather than spending vast resources unsuccessfully to stem so-called irregular migration on an extraterritorial basis, the EU should use its extraterritorial powers to address some of the underlying causes of war and poverty, rather than just reacting to a situation when displaced people are already at the EU’s doorstep.

Extraterritorial jurisdiction over immigration

The EU’s exercise of extraterritorial jurisdiction concerning immigration at the margins of Europe have been far-reaching.

In order to combat irregular migration, the EU has financed immigration detention centres in Libya. Through the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), border police and immigration officers within eastern European countries, those aspiring for membership in the EU, have been trained and equipped with the latest technology designed to interdict migrants. Immigration liaison officers have also been posted in airports throughout the world.

Taking these measures one step further, in November 2015 news emerged that the EU brokered an elaborate deal with Turkey. The Turkish government was not only promised funds but also easing of visa restrictions for Turkish citizens travelling to the EU, and an unfreezing of Turkey's bid for EU citizenship. In exchange, Turkey would help block off migrant routes to the EU.

All of these costly and what many regard as morally questionable efforts at seeking to combat irregular migration have failed to cease the flow of persons seeking to enter Europe. These efforts have also been accompanied by a massively profitable, global industry in human smuggling, which include corrupt officials and extremely dangerous means of transport.

In addition to the EU's extraterritorial actions in the field of immigration, international law clearly permits extraterritorial action in certain fields, on the basis of multilateral and bilateral agreements. These fields include anti-corruption measures and prosecuting international crimes. But, in contrast to the field of migration, the use of extraterritorial jurisdiction in these two fields has been comparatively modest.

Extraterritorial jurisdiction over corruption

In corrupt societies, politicians and other people in powerful positions mainly serve their own interests. Education, health care and other public services tend to be neglected. Starting a business or finding a job can become almost impossible under these circumstances and people are compelled to go elsewhere to earn a living.

There is a correlation between refugees and migration flows. Countries with the highest numbers of native refugees and migrants on their way to Europe are generally perceived as corrupt. Somalia (174), Afghanistan (172),  Iraq (170), Syria (159) and Eritrea (166) were ranked low in the Transparency International's (TI) Corruption Perception Index of 175 countries in 2014.

The corruption perception of TI relates to the corrupt officials, the people who accept bribes. In other words, those who are regarded as the demand side of corruption. However, every corrupt payment also has a supply side; the company that pays the bribe. In a globalized economy, it is safe to assume that some of the companies paying the highest bribes in so called ‘corrupt countries’ were not based there, but based in EU and other wealthy countries. In addition, corrupt politicians use banks and corporate services all around the world, according to Ali (2015). Without these supply and facilitation sides, corruption would not be possible at this current scale.

Anti-corruption legislation in all EU member states includes far-reaching jurisdictional provisions for bribery. Yet, according to the Organization for Economic Co-operation and Development and TI, with the exception of modest efforts in Germany, the United Kingdom and Switzerland, no European country has actively been enforcing their foreign corruption legislation. If European-based companies significantly contributed to corruption abroad, it would become a priority for authorities in all European member states. It would certainly limit the numbers of people that are forced to come to Europe.

Extraterritorial jurisdiction over international crimes

Refugee flows are also accompanied by international crimes. International criminal law allows many countries, and especially European countries, to prosecute war crimes, crimes against humanity, disappearances, genocide and torture in their own domestic courts. Even if those crimes took place abroad. Such prosecutions are very rare and even if they take place, the trend is that suspects are only prosecuted many years after they lose power.

The Netherlands has prosecuted a selection of high ranking Afghan officials for crimes that took place under Taliban rule. There have also been prosecutions of Rwandans and Tamils from Sri Lanka. However, all of these prosecutions took place long after the regime change. There have been some prosecutions of Dutch businesses that have contributed to international crimes abroad (Van Anraat, Kouwenhoven and Riwal), but unfortunately these appear to be exceptions to the rule. Investigations are ongoing regarding the crimes that took place in Ethiopia and Afghanistan in the 1970s at the time of this article.

Barnhizer (2001) has suggested that more individual accountability for mass crimes may serve as a form of deterrence, resulting in greater security for civilians and fewer refugees. Intensifying investigations and prosecutions for these crimes will also be important to reassure European citizens, some of whom fear that there are war criminals among the refugees that are coming to Europe. These concerned citizens should be reassured that Europe will not become a safe haven for perpetrators of international crimes.

Learning from crises

The EU’s policies, particularly Frontex and individual European countries’ own immigration policies, together have failed in stopping this European immigration crisis. They have not even learned from their obvious policy failures. Migration policies have been principally led by a mantra of seeking to eliminate irregular migration by barring people before their arrival to Europe, a policy mantra that by now should be roundly discredited.

Meanwhile, Europe’s failure to address two of the most significant root causes of the immigration crisis, including the exercise of extraterritorial jurisdiction to combat foreign corruption and the prosecution of international crimes, has resulted in a tragic continuation of these significant drivers of (forced) migration.

It is hoped that EU countries and the Brussels-based institutions will soon begin to learn from these failures for future immigration crises, and apply in the future extraterritorial solutions for a more migrant-centred approach, according to Truong et al. (2014). Such approaches could productively address the causes of migration flows rather than simplistically (and expensively) limit their consequences.

This expert opinion is a shortened version of the article published earlier by Haijer and Handmaker in DevISSues: Addressing root causes of Europe's immigration crisis through extra-territorial measures