The Case of Melilla and Ceuta: Moroccan Hitmen and Disproportionate Violence Against Refugees

Last summer 14 people died attempting to swim from the Moroccan territory into the Spanish enclave of Ceuta. An internal criminal investigation is still pending in Spanish courts three years later, but CEAR, a Spanish NGO and Human Rights watchdog argues that little will come of this investigation as it is being lead chiefly by the Spanish Guardia Civil, the agency who ordered the attack in the first place. Before this, another group of migrants, many of whom were confirmed by Amnesty International and CEAR to be refugees fleeing conflict zones in Syria and sub-saharan Africa successfully entered Spain via the North African enclave of Melilla where they were summarily repatriated back to Morocco without proper processing by the Spanish authorities; many of these people now stand trial in Morocco for attempting the illegal border crossing. The list goes on and on. Frontex, the European Border and Coast Guard Agency, reports that on average upwards of three thousand refugees a year attempt illegal crossings into Europe through the Spanish territories of Melilla and Ceuta; and this number does not count those who attempt to access Spain through the proper immigration channels.

In addition to Spain’s blatant disregard for it obligation under both European and International refugee law, an increasingly problematic avenue from which Spain has been criticized for their interpretation of international law has been with regard to what stipulates as “excessive force” in times of crisis. Indeed the ongoing refugee influx and mass border crossings are a crisis; this has been successfully argued in both Spanish domestic and EU courts; most recently these mass border crossings in Melilla and Ceuta have been deemed “emergencies” with “threats to national security by the Sevilla upper Court, district 17 this past year. But what is more nebulous is what stipulates a “reasonable” response to this crisis. Some migrants and refugees that have been interviews by NGOs including Amnesty International and Human Rights Watch say they have been repeatedly beaten with batons by Spanish police who were targeting their joints, causing severe pain and often irreparable damage. Some reported being pulled down from fences and beaten while still on the fence, risking falling down tens of feet and injuring themselves. A number of videos have been published by a migrants’ right group in Melilla, Prodein, which show unnecessary use of force by Guardia Civil against those attempting to cross the fences in Melilla. Footage recorded by Prodein of summary expulsions from Melilla on the 15th of October 2014 shows Civil Guard officers beating a migrant with their batons as he climbs down from the fence separating Melilla from Morocco. The video then shows the officers carrying the man, who is unconscious, through a gate in the fence and handing him still unconscious to Moroccan authorities. More footage and evidence such as this is currently pending a decision in the ECHR.

A further, and quite possibly the most contentious point of discord with regard to the way Spain is handling the migration crisis in its African Territories, comes in the form of semi-legal mass pushbacks and border checks instigated not by Spain, but by other bordering African countries. For clarity on this mechanism, we turn briefly to analogy. Let say somebody wants you dead, and in lieu of killing you themselves, they hire a hitman to kill you for them. Are they liable? Under most criminal law codes yes, both the person committing the act (the hitman) and the person perpetrating it (the person who wants you dead) are both liable. It is not seen as a valid circumnavigation of the law to simply pay someone else to do your dirty work. But this is exactly what Spain is doing in Melilla and Ceuta. Spain argues it is itself not committing mass pushbacks into Morocco—this statement, as we have seen, is trivial at best. But assume it is true, it still does not tackle the full picture. In addition to what Spain is doing at the frontiers of its own borders, it has also signed many treaties and cooperation agreements with neighboring and migrant-origin countries to prevent migrants from even making it to the Spanish border in the first place. These include but are not limited to: the readmission agreements, which permit returns of third country nationals to their country of origin without due process which were signed with Morocco (signed in 1992), Algeria (signed in 2002), Guinea-Bissau and Mauritania (signed in 2003); the migrant co-operation agreements, which were signed with Mauritania in 2006 (created a regime of joint Spanish-Mauritanian patrolling of the Mauritanian coast); the Framework agreements on migration cooperation signed with Gambia and Guinea in 2006 and Cape Verde in 2007 and a slew of less formal memoranda of understanding regarding co-operation for the detaining and repatriation of foreign nationals signed with Ghana, Senegal and Mali. This complex regime of bi-national treaties enshrines in law the right of Spain to refoule the nationals of these countries back home as it deems a priori they are not fleeing persecution of any kind and are thus not refugees and only migrants, not entitled to the protections laid out in EU and International law. Furthermore, Spain has established a special agreement with Morocco that works to prohibit refugees from approaching the Spanish border in the first place. This mechanism works on two levels. Firstly, it entitles Moroccan authorities to do mass push backs of migrants who are approaching the Spanish border. These are argued not to be pushbacks at all, as the actor doing the “pushing back” is not pushing people “out” or “back” from their territory but rather “resettling” these people within their own territory. Pushbacks are only categorized as pushbacks if the actor perpetrating them has the intent to expel those being pushed back out of their territory, which Morocco does not, and thus these actions are deemed to be resettlements within Morocco and are ergo arguably semi-legal. In return for these actions, Spain helps to pay for these migrant’s resettlement camps within Morocco—ironically using the aid the EU has set aside for Spain to tackle the refugee crisis at its borders. Secondly, the agreement makes Spanish asylum office highly inaccessible to those trying to enter Spain through legal means. Spanish asylum offices are made inaccessible to sub-Saharan or Middle Eastern migrants and refugees who do not have the proper travel documents because under the Moroccan-Spanish agreement, Morocco prohibits these undocumented individuals from exiting Morocco to reach the Spanish border crossings and apply for Asylum. Without a Spanish visa an passport, these individuals cannot leave Morocco in the first place. So in addition to actually pushing back migrants themselves, Morocco also just prohibits them from leaving Morocco in the first place. And ergo we see how in an attempt to circumnavigate EU laws prohibiting pushbacks, Spain has just hired a hitman to do their dirty work for them, preventing the migrants from entering Spain in the first place or even coming close to the Spanish borders.

As one reads this, one might ask, where are the Spanish and EU courts in condemning these clear breaches of law? With regard to these atrocities, Spanish courts have proven not particularly effective in assuring justice and punishment of breaching the international and even domestic laws. Following the incidents of unlawful refoulments on the 18th of June, 13th of August and 15th of October of 2014 in Melilla, section seven of the appeal court in Malaga issued a judgement in April 2015 that concluded that the Colonel (chief of the Guardia Civil), who commanded the operations, has no criminal liability concerning the returns from Melilla to Morocco, even though they were not in compliance with “the legal system” at the time. Furthermore, and upon admission of breaking their own domestic laws, Spain went one step further and full out changed their laws governing Melilla and Ceuta—recall above the discussion on the “Amendment to Organic Law 4/2000. This appeals court decision was the perpetrating act that brought this legislation to the floor of the Spanish Parliament. Instead of simply following their own laws, upon realization of illegal acts, Spain simply changed the law. With regards to the excessive use of force against migrants and the violence and damages sustained by foreigners, charges were dismissed by the Spanish lower courts in Malaga based on the basis that “necessary forensic evidence cannot be collected” on injuries allegedly sustained and testimonies of third country nationals injured. Their conclusion why this evidence was not possible to obtain, these individuals were “immediately deliver[ed] back to Moroccan authorities.” Multiple EU courts are pending decisions on Spain’s actions, but no final large-scale binding verdicts have been reached as of yet. Spain continues to defend itself as upholding EU law in EU courts, appealing any decisions against them—pushing back in time any punitive repercussions for their actions and allowing them to go forward with their pushbacks, violent treatment of refugees, and utter disregard for international obligations of reasonable response to crisis.