Last Rights

Creating a new framework of respect for the rights of missing & dead refugees, migrants and bereaved family members

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Statement Regarding the COVID-19 Virus Pandemic

The situation of deceased, missing and bereaved migrants and their families

The COVID-19 virus pandemic is affecting all countries of the world and does not discriminate as to its victims. Since December 2019 and the first identification of this novel coronavirus, thousands have died, hundreds of thousands have contracted the virus and millions have been placed in conditions of containment in attempts to restrict its spread and reduce casualties. States across the world have been increasing emergency measures to fight the virus and its grim consequences.

In the coming weeks there will be inevitably many more deaths irrespective of those measures and the suffering of individuals, their families and communities will be felt harshly. Many millions of people across the globe have travelled as refugees and undocumented migrants, many forcibly dispersed or making informal migration journeys. Living in camps and slum conditions, incarcerated, without status and access to the facilities and rights enjoyed by the settled community, all are exposed to a higher degree of risk. Where resources are already being stretched to breaking point those who are more invisible and on the margins of our societies and deliberately excluded by immigration policies will suffer a disproportionate impact in terms of access to material assistance, health care and their basic human rights. As others have already said, everyone in every society must be treated without discrimination in relation to the measures put in place to address this pandemic.

Assisting migrants to avoid and mitigate the virus is in the public interest of everyone.

This applies also to situations of death and bereavement.

The Last Rights Project, www.lastrights.net coordinated by the charity Methoria, is a global project which promotes the rights of bereaved missing and deceased migrants and calls on States and their agencies to act in accordance with well-established international human rights norms in establishing good practice in this regard. The Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys sets out the key principles and measures States and their agencies should take to ensure that respect for the dignity of the deceased and their bereaved families is met at all times and the practical steps needed to deliver these standards to all families.

We encourage all States to adopt and embody these principles and measures in their emergency work on the pandemic and especially in the context of the death and bereavement of migrants whilst outside their countries of origin.

It is imperative that where a migrant person dies as a result (directly or indirectly) of COVID-19, the responsible State takes all necessary steps to identify the deceased, preserve information and post-mortem data and store such data securely and with sufficient traceability to the deceased. In large scale tragedies where States may need to accelerate and attenuate normal funeral procedures and regulations, every effort must be made to preserve the identity and location of the deceased, their burial site and data, including DNA samples preserved that may be needed to trace and identify them to their families. GPS location markers should be allocated for each burial and individual record of death. Every effort must be made to find families where these are not immediately known, and to establish an independent system for families to be able to search for their loved ones. This must include also families searching for missing relatives as well those known to be deceased.

Where funerals attended by relatives cannot be held for public health reasons, such burials and services should be carried out in accordance with the culture and beliefs of the deceased where this is known and culturally appropriate burial sites established. Every opportunity and assistance must be given to families to mourn their loved ones and in due course, once restrictions are lifted, to travel to the place of death, to receive their mortal remains and property and to facilitate repatriation and burials.

As with all members of society, refugees and migrants should have equal access to a transparent legal process of independent investigation, inquiry or inquest for ascertaining the cause(s) of death and be enabled to participate in those procedures. Emergency measures should not curtail such procedures.

It is imperative that all States immediately establish the necessary recording and data preservation systems to ensure that these basic human rights measures are fulfilled and that information is published to enable families, wherever they may be located to access information, in their own languages about tracing, mourning and representing their loved ones in death.

If this fails to be done, injustice will be added to the burden of grief and loss felt by families.

Press Release: Mytilini Declaration Signed

The Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys

On the 11 May 2018, following two days of discussions between experts from across the world, the Mytilini Declaration was agreed. We believe this is a landmark in establishing the rights of and duties toward all those who experience suffering because of the death or disappearance of their loved ones as a result of migrant journeys and we now call upon all countries and international bodies to ensure that these rights are respected and that the standards contained in the Declaration are implemented as a matter of urgency.

Here are the GreekFrench, German, Spanish, Arabic, Turkish and Italian language versions. The English language version is the version that was agreed at the expert drafting meeting and prevails in the event of any differences arising.

Death and Disappearance

There is an urgent need to understand how international law can be used to protect people’s rights in situations of border death and loss, to recognise the rights of families and to define states’ duties in clear, practical, implementable terms. The movement of people, through forced, internal displacement and across international borders, is sadly part of everyday life and unlikely to reduce.

According to the UN High Commissioner for Refugees (UNHCR), millions attempting dangerous journeys are in need of international protection, fleeing war, violence and persecution. Many others crossing borders on ‘voluntary’ migrations risk their lives on dangerous journeys and suffer the same fate.

Every year these global cross-border movements continue to exact a devastating toll on human life both on land and at sea.

The International Organization for Migration (IOM) Missing Migrants Project states 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 actual number is no doubt greater given the many who are never found. Reporting mechanisms on the African routes are lacking and the number of deaths on the Central American routes is largely undetermined. We also have very little idea of how many have perished in the Gulf of Aden, the Bay of Bengal or the Andaman Sea.

By 13 February 2018 at least 589 people are known to have died in the first two months of the year, 401 of those in the Mediterranean area. Many were women and children. Many more remain missing.

Tragically deaths will continue to occur, in particular when States and the international community as a whole fail to meet their moral and legal commitments.

Unresolved Loss

Very many of those who have moved have fled war, conflict or persecution. Whilst some of the dead have been counted, many more are missing. The names of most of the dead and missing are not known; their families have not been traced, and 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. As has been said by UN Special Rapporteur, Agnes Callamard, in her August 2017 report ‘Unlawful death of refugees and migrants’ “This represents one of the great untold tragedies of this catastrophe, one that triggers the responsibility of States to provide dignity and accountability in death.”

Procedures for how the dead should be recorded, their mortal remains identified, and families traced in situations of conflict are set out in international humanitarian law. Drawing on international human rights law, principles have been developed to protect the rights of the missing and their families in other situations of death and loss: enforced disappearance, internal displacement, and humanitarian disaster.

But attention has yet to be given to the legal duties of states to identify the dead, and to protect the rights of families in the context of refugee flight and irregular migration. It is important to clarify the steps states should take to investigate disappearances and deaths, identify those who die, provide a decent burial to the dead [whether or not they have been identified], and trace their families, including their children. It is also important to consider how and by whom data taken from bodies, and from families whose relatives are missing, should be held, and under what safeguards. This will involve a review of international law to ascertain how it should apply, to identify gaps in its provisions and propose measures to close those gaps, in the specific circumstances of refugee and migrant death and loss.

Respect for Human Rights

We believe there is a pressing need for principles, minimum standards and practical guidance, informed by international law, which we now propose in a new protocol, setting out the steps which states should reasonably be expected to take to record the missing, recover, preserve, and identify the dead; to collect and retain appropriate data to facilitate future identification; to enable repatriation or decent and dignified burial and to respect the rights of family members, including their right to know the fate of relatives who are missing or who have died. The aim of the Protocol is to assist states, civil society, and others, including those working in the field, to respond to these tragedies in ways which respect human rights and human dignity.

These international guiding principles will draw on experience and knowledge gained from events arising in the course of the current refugee and migrant flows across the Mediterranean region and also upon the experience and knowledge of other human rights organisations across the world in regions such as Central and Southern America, Africa and Australia, as well as garnering better understanding of identification and recovery work from other non-migration traumatic events in places such as Argentina, Japan and Ukraine.

It is intended that these guidelines will have a wide reach internationally and act as a catalyst for action, including by human rights organisations which have not been engaged with these issues to date.

Mytilini Declaration Developments

Summary to date and proposed schedule

In the course of discussions during the past few years, there have been expressions of strong support for the protocols proposed by Last Rights, including from individuals in organisations as well as practising lawyers; academics, and others whose daily tasks involve them in work with the dead and their families and searching for the missing, including police and coastguards. Although there is already support for work of this kind, and there has been some related research, no existing NGO or other body is specifically working on the creation and promotion of the protocols proposed by ‘Last Rights.’

A small consultative roundtable legal discussion was held at the London School of Economics on the 14th April 2016, with participants from Last Rights plus other human rights lawyers and academics who discussed how International Law including International Human Rights Law might be drawn upon, interpreted and developed to provide a sound legal basis for the proposed protocols, together with examples of good domestic laws. A smaller group of lawyers and academics subsequently worked on what is now the Last Rights Legal Statement. For the September 2017 version see the Links and Documents page.

In October 2017, Catriona Jarvis participated in a meeting convened by Dr. Agnes Callamard, UN Special Rapporteur on Extra-Judicial, arbitrary or summary Executions, which followed Dr. Callamard’s presentation of her report “Unlawful deaths of refugees and migrants” to the 72nd session of the UN General Assembly, in which the work of Last Rights was relied on. (See our Links and Documents page for both the report and the statement).

In January 2018 Catriona Jarvis and Syd Bolton undertook a fact-finding visit to the Sonoran desert, on the Mexico/US border, where, amongst other meetings they were able to go to the Colibri Centre to hear from some of the staff there about the extraordinary work they do, in conjunction with the Pima County Medical Examiner, to support families; help identify the dead and reunite them with their loved ones. An international meeting in Mexico City followed, organised by the Equipo Argentino de Antropologia Forense, attended by forensic experts and lawyers, to discuss genetic data crossing. These visits were extremely instructive for us and we have incorporated relevant learning into the work of Last Rights and will continue to do so as we progress.

All relevant sources, experiences and learning have been used as an aid to draft, in skeleton form, the protocols. A wide consultation took place, in electronic form for quick and inexpensive dissemination to as many relevant persons as possible, particularly those who have a practical role in working with the dead or missing and their families. The draft protocols was discussed and refined at an expert drafting group meeting on Lesbos in May 2018. See below.

The Mytilini Declaration

The Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys

On the 11 May 2018, following two days of discussions between experts from across the world, the Mytilini Declaration was agreed. We believe this is a landmark in establishing the rights of and duties toward all those who experience suffering because of the death or disappearance of their loved ones as a result of migrant journeys and we now call upon all countries and international bodies to ensure that these rights are respected and that the standards contained in the Declaration are implemented as a matter of urgency.

Here are the GreekFrench, German, Spanish, Arabic, Turkish and Italian language versions. The English language version is the version that was agreed at the expert drafting meeting and prevails in the event of any differences arising.

Catriona Jarvis and Syd Bolton the co-conveners of the project are available for interview and comments by email and telephone.

History

The electronic consultation on the draft protocols, which closed on 30 March 2018, was followed by a two-day meeting of a working group of international experts on the 10 and 11 May 2018, held on the Greek island of Lesbos (where most of the refugees and migrants arrived in 2015, as well as many before and since, and where many have died), attended by delegates from Lesbos and around the world who brought to bear upon the draft document both their theoretical knowledge and practical skills and experience to hone the content. Included among the delegates (some of whom were speakers) were representatives able to speak for affected migrant and refugee groups, as well as the local community, since it is key that all voices be heard. Indeed, representatives from all sections have been participating in the reference group from the early days.

On day two, the revised version was presented in plenary to permit final discussion prior to adoption and signature (entirely optional), in protocol form, of what is titled ‘The Mytilini Declaration.’ It is intended that the Declaration be a tool that will be commended to all relevant bodies and persons, requesting that they give serious consideration to the adoption of such a tool and put it into practice without delay. The aim is to create a protocol that will not, if at all possible, necessitate primary legislative changes. Sitting behind the Declaration will be other papers previously prepared as well as the wealth of material gleaned from the consultations and discussions, from which an Explanatory Note will be created to accompany the Declaration prior to final wider circulation.

Beneficiaries

The Mytilini Declaration, although based upon and springing from legal theory, social and legal research, and humanitarian practice, will be, above all, a practical tool that will enable all actors to perform their tasks in ways that meet best practice and deliver respect for substantive rights to the missing, the dead and their bereaved families, assisting the bereaved to continue with their lives, at the same time enabling respectful and appropriate treatment of local populations. It goes without saying that it is in the interests of good government and in the general public interest that all these matters are dealt with respectfully, in accordance with the law.

The Declaration and Explanatory Note as well as other relevant documents will be made available online and all interested researchers and other readers, as well as institutions will have access to these.

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The Last Rights Team

Catriona JarvisCatriona Jarvis

is a former Judge of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber), who retired toward the end of 2013 with 21 years’ experience as a judge in the fields of immigration, asylum and human rights law. She has extensive experience working internationally on refugee rights, especially in relation to women and children, including publications and training work with the United Nations Refugee Agency (UNHCR), the European Council on Refugees and Exiles (ECRE) and other organisations. She is Chair of the Board of Prisoners of Conscience Appeal Fund; a Trustee and former Chair of the Inderpal Rahal Memorial Trust and Chair of the Unaccompanied Migrant Children’s Court Steering Group. She has written on a variety of aspects of refugee and human rights law, has been working with non-governmental organisations on Lesbos and, separately, with an academic research project concerning deaths in the course of the migrant journey “Mediterranean Missing”, as well as ‘Last Rights.”

She is the author of “In Potters’ Fields” a viewpoint piece published in November 2015 that seeks to throw light on the matter and calls for action including the development of guiding protocols.

Syd BoltonSyd Bolton

is a Children’s Human Rights Lawyer (currently non-practising), former legal and policy officer including for Coram Children’s Legal Centre; The Children’s Legal Centre; Medical Foundation for the Care of Victims of Torture; Islington Law Centre, Wilford Monro Solicitors. He has spoken and delivered training on the rights of children, in particular, refugee, asylum seeking and migrant children, both nationally and internationally, and been an adviser to the Children’s Commissioner England.

Danai AngeliDanai Angeli

is a lawyer and member of the Athens Bar Association. She holds a PhD in international human rights law from the European University Institute in Florence. She has significant litigation and training experience in the field of migration and asylum, has acted as a consultant on human rights issues for national lawyers and has provided legal representation in selected cases before the European Court of Human Rights. In 2016 she was appointed as the national trainer on human rights and asylum in Greece under the Human Rights Education for Legal Professionals (HELP) program of the Council of Europe.

Her professional experience includes her appointment as a chair of the Appeal Committees in the Greek asylum service and her participation in UNHCR’s emergency mission to the island of Lesvos. As an academic researcher, she has been involved in several projects on asylum and migration management with the European University Institute in Florence and the Hellenic foundation for European and Foreign Policy in Athens and has written articles, policy papers and academic papers on a wide range of issues including detention, labour trafficking and migrant smuggling.

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