The regulation and policy framework surrounding the movement of migrants across borders has grown increasingly complex, dominating conversations regarding the ongoing refugee crisis in the Mediterranean region. Although some of the resulting tragic deaths, such as that of three-year-old Alan Kurdî in 2015, are sensationalized and come to command global headlines and media, the majority go unnoticed. The Mediterranean migration route remains one of the deadliest in the world. While the number of people making the dangerous cross-border journey from Africa and the Middle East to coastal countries and the European Union has decreased, such crossings grow deadlier every year, with the number of estimated deaths steadily rising in proportion to the number of individuals who manage to safely reach Europe. Despite this, the reality of undocumented migrant deaths has remained conspicuously absent from the discussion. Given the extensive regulation which surrounds the bodies of living migrants, the silence regarding post-mortem protocols is extremely problematic. This ongoing crisis therefore demands the establishment of a solid and overarching legal framework in order to properly address migrant deaths.
Proper recovery, identification, and respectful handling of migrant bodies, and in turn recognition of certain universal human rights and state obligations, is crucial for a number of reasons. Firstly, families unaware of the fate of their loved ones experience significant emotional and psychological trauma. Furthermore, the lack of a death certificate can also mean that spouses cannot remarry and families cannot inherit or claim ownership of the deceased person’s land or property, making them vulnerable to illegal dispossession. These consequences tend to be gendered, with women oftentimes becoming targets for injustice and harassment as well.
Thus far, states’ recognition of this basic human right seems to be dependent on the circumstances surrounding the migrant deaths. While deaths of “regular” migrants (i.e. tourists, students, businessmen) in accidents or disasters are met with large-scale international responses that include advanced technological equipment and highly trained teams, those of “irregular” migrants (refugees or asylum seekers) are met with bureaucratic ambiguity and administrative inaction.
The root of this crisis stems from the fact that such deaths are not explicitly defined as any single country’s responsibility under international or humanitarian law. Strangely, international law does not deal with the collection and repatriation of the dead except for in situations of armed conflict, where a state’s obligations are defined in a precise and detailed manner. However, as war is often the root cause for the flight of these asylum seekers, such standards can and should be extended to include these contexts. Still, the challenges to reforming protocols addressing migrant deaths don’t end with international law ambiguities. For instance, bodies lost in the Mediterranean region are inherently difficult to correctly identify given the nature of their death: drowning slows down the process of locating individuals and erases many of the standard identification indicators.
International human rights law is thus a natural place to start in reforming migrant death policies. Human dignity lies at the core of all international human rights law, and countries remain bound by treaty obligations which include the duty to respect such dignity. These obligations also extend to the family of the dead, even to those who may reside outside the territory of the state. As such, human rights responsibilities of states towards the body of a dead migrant arise when the body is found within the territory of the state, including its territorial sea. Furthermore, these frameworks contain a common, underlying imperative that highlights identity and identification as human rights which extend past death. For example, identity has been explicitly framed as a “right” in multiple instances, most recently during Interpol’s 1996 UN General Assembly statement on Disaster Victim Identification (DVI) and in International Committee of the Red Cross’s 2004 meeting of Interpol’s Standing Committee on DVI : “human beings have the right not to lose their identities after death.” Drawing on a number of such aspects of both international and humanitarian law, the Last Rights Project advocates for reform by outlining a series of both the obligations of involved states and the rights of migrants in order to establish a more uniform protocol which remains rooted in existing legal framework. Such initiatives further support the idea that an increase in elaborate legal codification could be extremely useful in more solidly defining the action required of international actors. Simply put, the rights of persons fleeing war and persecution, as well as the protection of those whose lives are at risk, are matters of international concern and responsibility, and therefore should not fall exclusively to coastal states in the affected regions. The enactment of a clear, shared EU policy, adopting many of the obligations highlighted by the Last Rights Project, is a critical step towards achieving a long-term structural solution.
While establishment of specific legal obligations lies at the root of this issue, further distinct action is required to address the bureaucratic ambiguity which surrounds migrant deaths. According to the International Organization for Migration, of the more than 10,000 people who are known to have died crossing the Mediterranean since 2015, just over half have been found. The Missing Migrants Project has spearheaded efforts to track incidents involving missing or deceased migrants, but much of the information is generally logged as “unknown,” providing little hope for true identification and repatriation of corpses. As such, the creation of a universal database accessible to families and bureaucracy alike is fundamental to a more organized and systematic approach to the issue. Specifically, it is important that this database safeguards privacy and security through the establishment of firewalls between border control data collection and identification data collection. Such data centralization hinges on the standardization of procedures for body management and identification.
Typically, dead bodies are photographed with a code that may include their sex (if such determination is possible) and buried in donated cemetery plots in graves marked with only their codes, making it nearly impossible for loved ones to find these individuals. Keeping in mind the difficulties of obtaining ante-mortem data in this specific context, the EU should look to expand the acceptable methods of identification and support the training of local authorities. Acclaimed forensic scientist Cristina Cattaneo, for example, is currently advocating for such reform in the identification process in order to tailor it more specifically to the needs of the migration crisis, in turn ensuring that “all dead bodies are treated with equal dignity.” She recognizes that there exist limits to traditional forensic practices, which are based on a system of matching dental records or utilizing DNA data. As such, using visual identifiers (such as scars, tattoos, and personal descriptors), which are not recognized as legally valid identifiers because they are unreliable when compared to the aforementioned primary identifiers, she implements a range of extreme techniques to “animate the dead and harvest DNA in unconventional ways, […] pushing legal limits.” Given the nature of the majority of deaths in the Mediterranean crossing and the limited success for which currently acceptable practices allow, the acceptance and wider implementation of such special techniques would greatly facilitate the identification process.
In 2018, it was estimated that at least six people attempting the Mediterranean passaged died every day. As the number of death continues to climb, the international community is obligated to take serious steps in order to help preserve human dignity and reform its protocols to be as efficient as possible. The lack of precedent in dealing with this issue does not excuse the continuation of such unorganized, ad hoc responses. Instead, coordinated, continuous, and serious efforts to recognize state obligations and migrant rights under international and humanitarian law is vital. Steps such as the establishment of specific EU protocols, with the creation of a universal database and the implementation of innovative identification tactics being two crucial tools, can and should be taken. With these improvements, we can possibly begin to see a more just response to this crisis, giving deceased migrants some of the dignity and respect which they deserve.
Photo: “Migrant Lifejackets“