In the remainder of this chapter, I would like to reflect on the effects of our practice through the Forensic Oceanography project. The lack of perceived effect of my video practice prior to this project as well as its unexpected complicity with the government of migration had been the initial impetus for me to reconsider the effects of the image practices and objects I discussed in Image/Migration. I embarked into the project of Forensic Oceanography with the hope of finding a new language and new modalities to contest the border regime through aesthetic and knowledge practices by targeting direct responsibilities for the deaths of migrants at sea. Almost four years after the beginning of this project, how does the reality of the projects’ effects in the world measure with my initial hopes? In what follows I first discuss the effects of our project in relation to the legal sphere it targeted, and then attend to the unexpected ripple-effects it produced, in particular in terms of how our methodology was seized by a multitude of other actions in the frame of WatchTheMed.
Defending Illegalised Subjects Through Legal Politics: Limits and Potentialities
Let me first come back to the initial hopes that accompanied the beginning of Forensic Oceanography. I mentioned in the prologue to this chapter the anecdote of Eyal Weizman being threatened of law suit by a military officer, which led him to consider the need to articulate theory with “a certain journalistic forensics”, which involved naming people and institutions responsible for specific actions rather than referring to them on a higher level of generality and anonymity. This, Weizman argued, allowed to
“intervene within the system itself” (Weizman 2010b: 301). Intervene, but how, to what effect and within what limits? In the frame of the Forensic Architecture project, the aim was to experiment with the documentation of violations geared towards the legal sphere, as a space where specific actors may be demanded to respond for their (in)actions. But how does accountability in front of a court of law intervene in the world? The most basic and commonly held assumption is that, if the law is meant to codify the behaviour of humans so as to limit the drives that render “man a wolf for man” (in the famous Hobbesian formulation), in turn the prosecution and condemnation of criminal deeds will lead to them being stopped, and act dissuasively in the future. The law and the institutions that are charged of its application are thus seen as protective in relation to
past, present and future violence. These general assumptions of the protective and limiting nature of the law were further exacerbated within the frame of human rights which came to be seen in the course of the second half of the 20th century as the last limit to the exercise of power (Foucault 1981; Koskenniemi 2010).
There is a wide critical literature concerning the emancipatory potential of the legal sphere, which challenges these positive assumptions on several grounds, of which I will only mention a few that are of particular relevance for my discussion.107 First, critiques argue that the law is not a neutral arbiter of violence, but participates in many ways in the perpetuation of violence, enabling relations of domination and exploitation. From a Marxist perspective, the law at least partially creates the conditions in which political and economic power is exercised – for example is acting as the guarantor of private property (Knox 2010). The formal equality endowed by the state to its citizens merely hides the social inequality that is relegated to the private sphere (Marx 1844; Bhandar 2012: 60-62). Imperialist wars have also increasingly been justified in the language of humanitarianism and human rights, in the name of defending particularly vulnerable and oppressed people (Rieff 1999; Waal 2002; Keenan 2005). Through the concept of
“lawfare”, scholars also point to the idea that international law is a part of modern warfare, and can be used as a weapon by both sides (Knox 2010; Dunlap 2008).
International humanitarian law frames and thereby enables war at least as much as it restricts it, and its very limits are customary and elastic, defined and redefined through their transgression (Weizman 2012b: 90-92). Law is certainly deeply implicated in the deaths of migrants at sea, which, as I have argued several times, are first and fore most the product of migration policies and legislations which illegalise the movement of the majority of the worlds population towards the EU and other core regions of the world system. As such, these deaths are the product of a foundational political and legal violence.
Second, critiques have argued that the law only ever allows one to demand justice in relation to events framed within a particularly limited vocabulary, which can never account for the deepest and most pervasive forms of violence. The strongest critique is once again from a Marxist perspective: justice and injustice depend on structural causes which lie beyond the realm of the law: the modes of production and appropriation of the capitalist world system. As a result, demands for justice necessarily exceed the language of the law (Balibar 2012: 14-24). Again, this critique is particularly relevant for deaths
at sea. The cases of violations brought to courts are mostly filed by individuals claiming to having been violated of a specific right by specific actors. However, the structural violence of the migration regime results not in one, but in thousands of cases of deaths, and the (in)actions of individuals are enabled and constrained by broader migration policies, which are difficult to address in legal terms. As a result, redressing the specific crimes recognised by the law – such as non-assistance – can never be sufficient to undo the foundational violence of exclusionary migration policies. Mobilising a legal discourse in turn runs the risk of depoliticisation, turning the quest for bringing an end to violations and deaths at sea into a purely technical question (ensuring the respect of the obligation to rescue people in distress) and making the migration regime appear
“more humane”. In this way, the limitations of the law risk turning once again those who mobilise it into accomplices of the forms of violence they seek to denounce.
Third, while the use of the law to bring an end to violence is thus limited, it drains a tremendous amount of emancipatory hopes and energies, diverting them from other forms of action, such as seeking to change legislation and social movements (Rosenberg 2005: 796). Wendy Brown sees human rights-based activism as a “politics of fatalism”, an antipolitical politics of suffering reduction, which diverts us from more ambitious justice projects (2004: 462). Certainly we can see easily how this critique bears on the politics of migration: instead of endlessly defending asylum applications with little success, why not invest instead in mounting a political movement capable of changing the policies that have been designed to make these applications fail and have turned the asylum process into a factory of illegalisation (Agier 2011)?
These are all critical arguments that deserve to be taken seriously, and seeking to engage with them should help us sharpen legally based practices – if one decides to have recourse to the legal sphere at all. I believe the practice of strategic litigation has the potential to respond productively to several of these difficulties. The practice of strategic litigation has at its core the strategy of bringing a specific case in front of the court of law in the aim of attaining a broader legal and political objective. It is a
“strategy of the week”, in the sense that it is often resorted to from a minoritarian position, which seeks to use the judiciary power against a legislative power which is either hostile or out of reach. Strategic litigations are often embedded in wider social movements, and framed in a way that addresses deeper political demands. As such, the
courtroom and the case are a point of convergence of a broader set of practices and demands, that operate outside the court room and beyond the language of the law.
The articulation of seeking accountability for the specific crime of non-assistance with the deeper denunciation of the European migration regime was clearly stated in the GISTI’s initial press release concerning the “left-to-die boat”, which I mentioned at the beginning of this chapter. Before claiming that the crime of non-assistance could not remain unpunished, the GISTI recalled that the deaths of migrants at sea were the
“invisible victims of a European policy aiming to combat the immigration which it calls
‘illegal’”. In the press release that accompanied the logging of the case in Paris on the 11th of April 2011, while the coalition first demanded of the French court that it sanction the crime of non-assistance and that it consider that “nothing can justify that one let people die in all knowledge of their fate”, it further framed the “left-to-die boat” case as a “symbol of Europe’s indifference towards refugees,” of its intolerable contempt for the lives of those who flee across the sea.108 This legal case was inscribed within a broader campaign to contest the death of migrants at sea and demanding a migration policy based on freedom of movement as the only solution to bring these deaths to an end. In this sense, this strategic litigation may be seen as exemplary of what Sandro Mezzadra has referred to as a “split temporality” that he sees as necessary to operate in struggles surrounding migration: simultaneously struggling for very concrete demands – such as transparency and access in a detention centre – while at the same time formulating demands for fundamentally transforming the migration regime – such as the abolition of detention altogether (Mezzadra 2013: 318).109 Here we demanded respect for the obligation to operate rescue at sea, all the while demanding freedom of movement – which would make the need to rescue migrants at sea obsolete.
There are several levels of complementarity in between these immediate demands that seek to reform a particular node in the dispositif of the government of migration - carrier sanctions, militarised borders, detention camps, deportations, to name of few of key nodes that uphold the migration regime, and those that demand the abolition of this dispositif altogether. First, because these two levels of demands may partly lead to each other. Certainly, a migration policy based on freedom of movement (which I discuss in the next chapter) would make the question of reforming each node of the migration control dispositif obsolete, since they would disappear instantly. But the inverse is also partly true: while freedom of movement could be installed in the distant future through
lengthy parliamentary and democratic process, it can also be created de facto – or rather enabled, since migrants’ already existing freedom is precisely what states desperately try to control – from below, by blocking the means deployed to prevent the actual free movement of people. As such, we might say that struggling against very concrete means of control is always already struggling towards freedom of movement, even if that is not always the intention of those leading these struggles.
Second, we can see strategic litigations and the monitoring of migrants’ rights at these key nodes as challenging those who uphold the government of migration in the following terms: “as long as you do not apply the policies we demand, we will track you so as to document the violations you cannot not commit” – since it is impossible to deprive people of their freedom to move without exercising a degree of constraint and violence. Strategic litigations and the monitoring of migrants rights is then at best a way to make the life of those who seek to govern migration impossible, of inserting grains of sand into their mechanisms of control to block them, or at least make them shift slightly.
Finally, we can see the documentation of violations and the filing of complaints as contributing to open up political imagination. Today, it is the migrants who pay the price of the EU’s policies of exclusion, criminalisation and militarisation – in the exorbitant cost of illegalised means of transport, but more fundamentally in the risk to their very lives. Seeking to make specific state actors and agencies accountable for the deaths of migrants at sea is a way of shifting the burden of policies from migrants to states, in the aim of making the political cost high enough for policy makers and government agencies to at least begin to consider alternative policies.
Enough for strategy, but what does strategic litigation actually do? And what have been the effects of our report on the “left-to-die boat” case and the legal complaints logged on its basis? Certainly, it is not possible to provide a general answer to the first question, and too early to answer the second since the cases are ongoing, and will probably last several years. But there have been several important processes of evaluation of the outcomes of strategic litigation. In a devastating article of which the title “Courting Disaster” provides the tone, Gerald Rosenberg (2005) reviews the outcomes of strategic litigations in the USA, arguing that in relation to same-sex marriage litigation, the initiators “succumbing to the ‘lure of litigation,’” “confused a judicial pronouncement of rights with the attainment of those rights. The battle for same-sex marriage would have been better served if they had never brought litigation,
or had lost their cases” (54).110 While sobering and thought provoking, I find more inspiring the careful self-reflexive discussion led by the GISTI and external actors on the occasion of the organisation’s 30th anniversary. In a conference and the resulting publication (GISTI 2009), the GISTI members sought to take stock of the outcomes of what the organisation has made one of its main strategies, and ask: was the multiplication of our strategic litigations worth it? Despite many victories in courts, Danièle Lochak (GISTI president from 1985-2000) sees many defeats but also false victories – legal victories which do not lead to a change in practice or only to their worsening – and only a few real victories which however have not been able to derail the tendency of the hardening of migration policies (53). Lochak concludes that overall
“jurisprudence has accompanied more than it has channelled the precaritisation of the right to stay, the weakening of the protection granted to asylum seekers, the increasing power of the administration and the police” (63). Lochak concludes that this confirms the limits of strategic litigations of which the GISTI was always aware: the weapon of litigation is only effective in the long term if it comes in support of the political struggle, not as a substitute to it. Let us now turn the results of the “left-to-die boat”
case litigations to date.
The Left-To-Die Boat in the Courts of Law: Still Drifting on Firm Land
Concerning the “left-to-die boat” case, the result to date in front of the courts of law is mixed to say the least. On the basis of our report and the other investigations, a coalition of NGOs has filed legal cases against several of the states participating in the military operations in Libya, including Italy, France, Spain and Belgium, and submitted Freedom of Information requests in Canada, the US, and the UK. The Dutch Senator Tineke Strik also sent, on behalf of the Parliamentary Assembly of the Council of Europe (PACE), official demands to all actors involved to ask for further details about their (in)actions. In the process, no element either of our or the other reconstructions has been disproved. No public statement, no journalistic investigation, no legal inquiry has even tried to challenge the facts as we have reconstructed them. On the contrary, in here decision of the 6th of December 2013, the Vice President in charge of the instruction of the case in the French tribunal considered that “this tragedy has been the object of an extensive investigation of an organisation of the European Research Council of the name “Forensic Architecture”, and led to a detailed report titled the “Left to Die boat case.” However, the rigour of our inquiry was used to justify her refusal to investigate the case any further, since, she argued, our extensive report had not proven the
responsibility of a French ship and that the (non)answer by the French military (i.e., the accused), indicated that French assets were not deployed in the area of events. Her judgement was appealed successfully against in June 2014 and the court will have to investigate the case, but almost a year after the successive appeal, no results have been communicated.111
The lack of serious investigation has repeated itself in all the different procedures. As Strik summarizes in her follow-up report: “I received denials, referrals back to NATO and/or the member states, or, in some cases, no answer at all. (...) Legal cases and Freedom of Information applications are being pursued in a number of the member states implicated but seemingly in vain” (PACE 2014). The 23 April 2012 response to Strik by NATO’s Richard Froh, (fig. 26) is in this sense exemplary. While Froh accepts a degree of moral blame – he agrees with the conclusion of Strik’s report and expresses his “regrets” for the possible missed opportunities to help, he then seeks to shift the responsibility on “the Gadhafi government authorities, human traffickers and the captain of the boat”. In tortuous diplomatic non-answers (of which the correspondence contained in Strik’s follow up report provides many more a striking example), NATO and participating states have failed to provide exhaustive answers to simple questions such as the location of their assets during the time of the events (which are certainly meticulously recorded in their assets’ log books) or justify their (non)response to the distress call. Neither have they sought to disprove the allegation of the survivors that they were visited twice by a military helicopter and encountered a large military ship. It is as if the huge military surveillance apparatus that refused to see and react to the slow death of the 63 passengers over a period of 15 days had now itself become invisible to public scrutiny. While fully visible to the public, the collective crime of which the passengers have been the victims has remained invisible to the law.
Figure 26: Letter from Mr Richard Froh, Deputy Assistant Secretary General, Operations Directorate of NATO, to Ms Strik, rapporteur of the Committee on Migration, Refugees and Displaced Persons, dated 23 April 2012. URL: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20940&lang=en
As a result of the lack of response and legal inquiry, not a single actor has been made responsible for the deaths of the 63 passengers. The indifference which led to their being abandoned to the winds and currents, continues to plague the demand for justice
As a result of the lack of response and legal inquiry, not a single actor has been made responsible for the deaths of the 63 passengers. The indifference which led to their being abandoned to the winds and currents, continues to plague the demand for justice