Document - Mauritania: «Nobody wants to have anything to do with us» : Arrests and collective expulsions of migrants denied entry into Europe

[Embargoed for: 1 July 2008] Public

amnesty international

MAURITANIA :

« NOBODY WANTS TO HAVE ANYTHING TO DO WITH US»

ARRESTS AND COLLECTIVE EXPULSIONS OF MIGRANTS DENIED ENTRY INTO EUROPE

TABLE OF CONTENTS

MAURITANIA: “NOBODY WANTS TO HAVE ANYTHING TO DO WITH US” ARRESTS AND COLLECTIVE EXPULSIONS OF MIGRANTS DENIED ENTRY INTO EUROPE

“When white people first came over the sea to Africa, nobody treated them as illegal immigrants; why is it that today, when we try to go by sea to Europe, we are treated as illegal immigrants?”.

Graffiti written by a migrant at the Nouadhibou detention centre

1. INTRODUCTION

Since 2006, thousands of migrants, accused of setting out from Mauritania with the intention of entering the Canary Islands (Spain) irregularly, have been arrested, then forcibly returned to Mali or Senegal without any right of appeal to challenge the decision before a judicial authority. Many of them have been held for several days in a detention centre at Nouadhibou (in northern Mauritania), where some have been ill-treated by members of the Mauritanian security forces. Nationals of West African countries say they have been arbitrarily arrested in the street or at home and accused, apparently without any evidence, of intending to travel to Spain. Some of these people have been the victims of racketeers and many have been forcibly returned by the Mauritanian authorities to Mali or Senegal. These arrests, followed almost automatically by being returned to the border, are all the more arbitrary since it is not an offence under Mauritanian law to leave Mauritania irregularly.

This policy of arrests and collective expulsions by the Mauritanian authorities is the result of intense pressure exerted on the country by the European Union (EU), and Spain in particular, as they seek to involve certain African countries in their attempt to combat irregular migration into Europe. Mauritania, which has traditionally been welcoming in its attitude to large numbers of nationals of neighbouring countries, agreed to sign an agreement with Spain in 2003 which obliges it to readmit onto its territory not only Mauritanian citizens but also the nationals of third countries where it has been “ascertained” or “presumed” that they have attempted to travel to Spain from the Mauritanian coast. Mauritania has also agreed to the presence on its soil of an aeroplane and a helicopter, deployed in the context of an operation conducted by the EU in order to control its external borders. Moreover, members of the Spanish Guardia Civil undertake joint patrols with the Mauritanian authorities along the country’s coastline. This cooperation between the EU and Mauritania has been presented as a security and humanitarian operation designed to discourage and stop migrants who are trying to reach Europe, and to save those who are at sea in makeshift crafts and are at risk of drowning. Information gathered by Amnesty International reveals that this cooperation has given rise to the violation of certain fundamental rights of migrants in Mauritania.

The reasons that drive thousands of young Africans to face difficult times and often death in an attempt to reach Europe are linked essentially to poverty, a lack of prospects and family pressure as well as political violence and the civil wars that have affected, in particular, Liberia, Sierra Leone and Côte d’Ivoire. The EU and its Member States have responded to this irregular migration by tightening up their policy on migration flow management.

In this regard, Amnesty International is extremely concerned about the security policy of the EU and its Member States, and Spain in particular. These states are in the process of externalizing their policy of migration flow management by pressing the migrants’ countries of origin, or the countries through which they pass – especially certain countries of the Maghreb and sub-Saharan Africa – to themselves manage the flow of migrants who attempt to reach Europe from their territory. These countries have become the de facto “policemen of Europe”.

Generally speaking, Amnesty International is opposed to the use of detention for the purpose of migration control. Migrants have a right to freedom and a right not to be arbitrarily arrested. The organization takes the view that the detention of migrants is legitimate only when the authorities can demonstrate that it is necessary and proportionate to the aim to be achieved, that alternatives would not be effective, that it is on the grounds laid down by law and when there is an objective risk of the person concerned absconding. In particular, it should be a requirement that such incarceration be the subject of a judicial review and that it should be for as short a time as possible. The person in question must also be provided with an effective opportunity to challenge the decision to detain him.¹

Moreover, the rights of some refugees and asylum-seekers, the majority of whom come from the countries of West Africa and Liberia and Sierra Leone in particular, are also under threat and at times denied in Mauritania. For instance, several refugees were arrested for short periods of time and at least two of them were forcibly returned to Mali. An asylum procedure was set up in 2005, but it has not yet been implemented. It is still the Office of the United Nations High Commissioner for Refugees (HCR) that recognizes the status of refugee, but its decisions can be challenged by the new institutions that have been created by the Mauritanian authorities. In addition, there is no appeal mechanism in the event of refusal.²

This report is based on a fact-finding mission undertaken by Amnesty International in Mauritania in March 2008, during which the organization’s delegates were able to interview, in particular, people held at the detention centre in Nouadhibou, migrants who had attempted – or who intended to attempt – to get to Europe, and refugees, most of whom came from the countries of West Africa. The delegates also met high officials of the Mauritanian authorities, including the then Minister of the Interior, Yall Zakaria, and diplomatic representatives of Spain in Mauritania. This report sets out the main concerns of Amnesty International in relation to the treatment of migrants, refugees and asylum-seekers in Mauritania and puts forward recommendations to the Mauritanian authorities and the EU and especially the Spanish government, calling on them to ensure that the rights of these people are upheld in accordance with current international standards.

2. HEADING FOR EUROPE TO ESCAPE POVERTY AND CONFLICT

Migration flows from the countries of sub-Saharan African towards Europe have grown substantially since the 1990s. This phenomenon is the consequence of civil wars and the economic crisis which have affected many of these countries, especially in West Africa. The gateway to Europe, the coast of north west Africa (especially the coast of Morocco and Mauritania) has become a favourite transit point for sub-Saharan migrants.

2.1. “I promised my family I would go to Europe”

The reasons that drive thousands of young Africans to face difficult times and often death in an attempt to reach Europe are linked essentially to poverty, a lack of prospects and family pressure as well as political violence and the civil wars that have affected, in particular, Liberia, Sierra Leone and Côte d’Ivoire. Many migrants Amnesty International met emphasized the extent to which their parents depended on them to take them out of poverty, or simply to survive in a context of endemic economic crisis and high unemployment.

Most of the migrants who try to reach the Canary Islands from Mauritania are from the Economic Community Of West African States (ECOWAS). The great majority are from Senegal or Mali, but Amnesty International also met nationals of Gambia, Guinea, Côte d’Ivoire, Ghana, Liberia and Sierra Leone.³The reason why the vast majority of migrants in Mauritania are nationals of ECOWAS countries, is that they can enter the country without a visa, provided they have identity documents.⁴

A Senegalese migrant, whom Amnesty International met in early March 2008 at the detention centre in Nouadhibou, said: “My mother is old and I have two sisters; I promised my family I would go to Europe to earn some money”.

© AI - Graffiti made by migrants on the wall of Nouadhibou Detention Centre

Many migrants pointed out that the entire family had clubbed together so that they could leave the country and try to reach Europe. One migrant from Côte d’Ivoire told Amnesty International at the Nouadhibou detention centre:

“It wasn’t because of the war that I left the country, but because of poverty. My father sold our radio and television and almost all our personal possessions so that I could leave. He said ‘Do it, son, do it for me’. That’s what gave me the will to do it.” Since his arrest by the Mauritanian authorities at the beginning of March 2008, this person has been trying to phone his father. “My father wept when he heard that I’d been arrested. He said that our luck had run out and asked me not to be discouraged, but to try again. I know that I’ll be sent back to Senegal, but I’m going to work there for a while to get some money and then I’m going to come back to Nouadhibou to give it another try. I know that without me, my family is finished. I am their only hope.”

Another Ivorian migrant arrested at Nouadhibou by the Mauritanian authorities told Amnesty International: “Now I’ve been caught, I can’t return home penniless. Maybe I’m going to grow old here, that’s in God’s hands. If peace returns to Côte d’Ivoire, I’m ready to go back, but only to some place where my family won’t see me, because otherwise I’d be so ashamed”.

Many migrants also highlighted the influential role of those migrants who have succeeded in reaching Europe and who call their families immediately to tell them of their success. One Mauritanian, who has twice tried to reach the Canary Islands, told Amnesty International: “As soon as migrants reach the Canary Islands, they call their families on their mobile phones and that encourages many young people to leave themselves.”

Amnesty International has also met individuals who have fled their country because of political conflict and civil war, but who have still not sought asylum in Mauritania because their aim is to reach Europe. A Liberian national at the detention centre in Nouadhibou told the Amnesty International delegation: “I left my country to escape the civil war; I went to Côte d’Ivoire in 2004, then I came here to try to reach Europe and live in safety”.

2.2“He advised me to go to Mauritania because it’s not far from Europe”

Since 2006 Mauritania has become a particularly favoured departure point for migrants who want to go to Europe. For a long time, the majority of west African migrants tried to reach Europe from northern Morocco, using small fishing boats to cross the straits of Gibraltar, where the crossing is a mere 15 km. After 2002, the reinforcement of controls along the Mediterranean coast obliged migrants wishing to reach Europe to change their itinerary, notably by trying to enter the Spanish enclaves of Ceuta and Melilla in northern Morocco. Many set out to sea on board pateras⁵ from the port towns of Dakhla and Layoune (in Western Sahara) and from the Moroccan town of Tarfaya (less than 100 km from Fuerteventura in the Canary Islands, only 8 to 10 hours by sea).

Following the events of October 2005 in Ceuta and Melilla and the intensification of controls along the Moroccan border⁶, particularly between Western Sahara and Mauritania, migrants were obliged to find other, longer and therefore more dangerous, routes and try to reach Europe by sea via the Canary Islands. So thousands of people set off from Mauritania (which is some 800 km from the Spanish islands) and even Senegal (2,000 km from the Canary Islands). As the voyage is longer and more dangerous, migrants adopted new means of transport, taking to the sea in cayucos.⁷

Another factor which has been instrumental in migrants choosing to go to Europe from Mauritania, and in particular Nouadhibou – the country’s northernmost town and therefore the least distant from the Canary Islands - is the opening at the end of 2005 of a new road between Nouadhibou and the capital of Mauritania, Nouakchott, considerably reducing the time and the random nature of the journey.⁸

The reinforcement of measures by the Spanish and Moroccan authorities to dissuade migrants from going to Spain and the almost simultaneous opening of an easier and safer road giving access to Nouadhibou meant that this region became a magnet for large numbers of migrants of West African origin eager to get to Europe. One Liberian migrant told Amnesty International: “I left Liberia for Côte d’Ivoire in 2004. On the way I met a lorry driver who advised me to go to Mauritania because it’s not far from Europe; you can find work there and save enough money for the crossing.”

Since the end of de 2005, there has been an enormous increase in the number of migrants leaving Mauritania for the Canary Islands by sea, and this has been the subject of considerable media interest, in particular on the part of the Spanish media. Reports vary as to the number of migrants arriving in the Canary Islands from Mauritania.⁹Confronted with the influx of migrants to the Canary Islands, along with images broadcast by the international media of bodies floating in the water and dehydrated and starving migrants drifting aimlessly, the EU reacted by seeking some means of dissuading these migrants from making the journey and saving human lives. The EU and its Member States also put pressure on Mauritania to play a more active role in the control of migration flows to Europe.

2.3“The trafficker organizes everything, but he himself doesn’t travel”

In order to be able to leave Mauritania by boat and elude the Mauritanian and Spanish authorities, anyone wishing to migrate is obliged to use a trafficker and pay an enormous sum of money, which may be as much as several thousand euros. Traffickers are people who know the area and which authorities to bribe; they may be fishermen, or people who are planning to migrate themselves, or who have already done so. Irregular migration is based on a complex network of relationships and dealings the extent of which is difficult to grasp, because it is constantly changing in response to the reactions of the authorities.

According to information gathered by Amnesty International, this complex system involves different levels of responsibility and individuals: first there is the “trafficker”, who organizes the whole operation; he works with touts (known locally as “coxeurs”)¹⁰who have to find the migrants who want to go to Europe. At times, potential migrants might themselves become touts, seeking out other migrants keen to get to Europe by some irregular means. There are also the “captains” of small fishing boats, who receive large sums of money to engage in this kind of crossing. Finally, there are certain representatives of the Mauritanian security forces who will agree, in return for large sums of money, to allow the very departures they are supposed to prevent. As the number of potential migrants has risen, these activities have become increasingly lucrative.

One Mauritanian migrant who has tried to get to Europe several times, explained to Amnesty International how the system works:

“First the migrants must find a tout who is looking for people who want to leave. The tout finds customers for the trafficker, but never travels himself; he notes in his book what each person has paid; the trafficker organizes everything, but he doesn’t travel either; he looks for a captain among the fishermen who bring in the biggest catch, then offers to strike a deal with him”.

In some cases, the touts or the traffickers betray, inform on or cheat the migrants, in particular the weakest, notably the women or some Anglophone migrants (mainly from Liberia, Sierra Leone or Nigeria) who are not familiar with the region and would not dare to complain and demand their money back. Amnesty International has gathered the testimony of several migrants who consider themselves to have been betrayed and robbed by touts or traffickers.

A 24-year-old Gambian recounted the following story to the organization’s researchers at the Nouadhibou detention centre in March 2008:

“I left Gambia in 2005 to escape the poverty. I’ve been here two years, working as a labourer, to save up enough money to get on a boat. I’ve suffered a lot to save up this 200 000 oughias (around 550 euros). In August 2006 I gave the money to a Senegalese tout who said: ‘It’s just a question of waiting, don’t worry, I’ll make sure you get away’. I waited a long time, but the tout told me that the captain had disappeared along with the boat and my money. He asked me for another 50,000 oughias (around 140 euros). I gave it to him and yesterday evening [3 March 2008], he took me to where I and my group were supposed to board the boat, but the Mauritanian police were waiting for us there. I think that the trafficker had informed on us. Since then, his mobile phone is always switched off. I’ll be sent back in a few days, so I won’t be able to ask for my money back. I’ve lost everything.”

One migrant who had made several attempts to go to Europe explained to Amnesty International that some traffickers would cheat prospective migrants by promising large numbers of people a place in the same boat knowing that there would not be room for all of them. “Some do the same as the airlines, they overbook. They ask 100 people for money but they know that only 75, maybe not even that many, will be able to leave because the boat mustn’t be overloaded. So they give some people the wrong date, or they inform on them to the authorities”. Asked about the “criteria” adopted by the traffickers to determine who was actually going to be able to go on the boat, the same person said: “They take the most determined migrants, those who could make problems for them if they don’t getaway, that’s why it’s often the women or the English-speaking migrants [who don’t understand the local languages] who are left behind”.

 

At the detention centre in Nouadhibou, Amnesty International met two women from Côte d’Ivoire, who believed they had been “betrayed” by their trafficker. One of them said: “The trafficker told us to be at a crossroads. Later he came in a car to pick us up and take us to his house where some other people were already waiting. He said he had to go out and told us to wait for him. Shortly after that, ten police officers came to arrest us. The police told me that I was going to be sent back to Mali. We are tired in Africa, too tired. We are poor, we have nothing…. What are we going to do now, they are going to dump us at the border, we are going to die, we have no way of getting back to Mali”.

Some people accused of trafficking, or presumed to be traffickers, have been arrested by the Mauritanian authorities. The Amnesty International delegation met some of them in prison in Nouakchott and Nouadhibou. Some had been convicted, while others were awaiting trial. Many traffickers manage to avoid being arrested, apparently as a result of links with influential people including, according to some allegations, people within the security forces. But others, who do not enjoy the same level of protection, have been arrested and accused of being traffickers’ accomplices. ForAmnesty International, the testimony gathered from some of those being held in detention confirmed that the system that exists for those attempting to reach the Canary Islands by an irregular means is complex, that it involves people at very different levels of responsibility and that the authorities must take steps to avoid people being detained in inhuman conditions as a consequence of a simple denunciation.

One particular case that came to Amnesty International’s knowledge was that of a Ghanaian, who had been arrested by the Nouadhibou police on 27 October 2007. The arrest took place following notification by the Spanish authorities that he had been accused of being a trafficker by the migrants who had been arrested as they attempted to reach the Canary Islands. He had been held in custody for six days at the police station in Nouadhibou before being sent to the National Security headquarters in Nouakchott. The prosecutor before whom he was brought on 7 November 2007, decided that there was insufficient evidence to charge him and left it to the discretion of the police. Although the police should have released him under the presumption of innocence guaranteed by Mauritanian law, he was forcibly returned to Senegal via Rosso, the border town between Senegal and Mauritania. Since then, he has returned to Mauritania, but he has lost his job and is now penniless.

Several people have told Amnesty International that some members of the security forces with responsibility for coastal surveillance, would, in return for large sums of money, allow migrants to leave, even if that meant pursuing them later. One person who had attempted to go to Europe several times, told Amnesty International that at certain locations on the coast, “at night, there are only three soldiers on guard between midnight and six in the morning. They ask for 250,000 ouguiyas (around 700 euros) to close their eyes for an hour; migration is a major source of revenue for soldiers. Many of them have a Mercedes back in Nouadhibou in spite of the fact that they earn only 35 000 ouguiyas (around 100 euros)”.

Amnesty International has also learned that some members of the security forces are allegedly selling motors or fuel to migrants. These motors are said to come from the fishing boats arrested and confiscated by the police. Clearly it is impossible, or very dangerous, for migrants to complain about such behaviour. For instance, Amnesty International learned that in January 2007 a Guinean migrant was beaten up in the detention camp at Nouadhibou for having said that a police officer had agreed to let him set out to sea in return for 200,000 ouguiyas (around 550 euros). As a result of the beating, he had a fractured hand and had to be taken to the hospital.

2.4. “As we approached Europe, even the waves unleashed themselves against us”

The migrants Amnesty International met told of the conditions in which they had travelled at sea for days, their lives in danger, in an attempt to reach the Canary Islands on board small, overloaded fishing boats, often with no lifesaving equipment in the event of a shipwreck and very little food and clothing to protect them against the cold and the rain. This crossing is particularly perilous because the sea current flows southward. It is therefore easier for a boat to go from the Canary Islands to the African continent than in the opposite direction. One migrant, of Sierra Leonean origin, who had succeeded in making the crossing to the Canary Islands in September 2007 before being sent back to Mauritania by the Spanish authorities several days later, told Amnesty International: “When we left the coast of Mauritania, the sea was calm, but as we approached Europe, even the waves unleashed themselves against us. They were three or four metres high, it was like climbing a mountain. It was very dangerous and I was afraid because I can’t swim.”

A 24-year-old Ghanaian at the detention centre at Nouadhibou, told Amnesty International:

“I arrived in Mauritania in 2004 and I’ve been working in the port since then. In October 2007, at about six o'clock in the morning, I saw some people getting into a boat that was going to Spain. I followed them and went on board; there were more than 100 people on board. The captain threatened to throw me overboard if I didn't pay him immediately. I had 1,400 euros on me and he took 1,000. The crossing was very long; it took nine days. I had only my trousers and a shirt and it was very cold at night. Also, I was really afraid of falling because we had to remain seated, with our heads almost on our knees. If anyone wanted to urinate, we used a bottle, with two of the migrants holding us. It was just as difficult for the ten women who were with us; they had to use a bucket. We wept during the crossing. The waves were more than four metres high and we were afraid. We prayed the whole time. By the end of the fourth day, there was practically nothing left to eat or drink. We had used up all our supplies and some of us had even drunk some seawater. Several people fell ill, including the women. After nine days at sea we arrived in Tenerife, where the Spanish police were waiting to arrest us.”

During these crossings, a considerable number of people, the magnitude of which is impossible to evaluate, have drowned. At an official audience with the Amnesty International delegation in March 2008, the then Mauritanian Minister of the Interior, Yall Zakaria, said: “Every day we find bodies along the coast. The ocean has absorbed thousands of people.” A migrant who made the crossing on a small fishing boat in September 2006 told Amnesty International: “The voyage took five days. We were spotted by a Spanish helicopter, and they called the Guardia Civil. The Spanish police arrived by boat and came on board while we were still at sea. During the crossing, one of us was vomiting. He was 25 or 26, from Guinea Bissau and was travelling with his older brother. We thought he was asleep because in the boat it’s every man for himself and the devil take the hindmost. I don’t know you and you don’t know me. The Spaniards tried to wake him and realized that he was dead. They put him in a big plastic bag and took him away”.

3 “FORTRESS EUROPE” PUSHES ITS EXTERNAL BORDERS SOUTH

Over the last 10 years or so, the Member States of the EU have considerably hardened their policy of managing migration flows. The aim was to limit the number of irregular migrants arriving on their territory, especially by reinforcing controls on their external borders. Having failed to contain this migratory phenomenon, in the end they decided to externalize their policy of combating “illegal migration”.

So pressure was exerted on the countries of the Maghreb and of sub-Saharan Africa to include them in combating irregular migration and to turn these countries into the de facto “policemen of Europe”.

During the last few years the EU has developed its policy on migration flows around two main axis: the clauses of readmission and the joint operations of the Frontex Agency.

3.1. Readmission agreements and clauses

Readmission agreements and readmission clauses inserted into co-operation and association agreements have consequently become one of the EU’s preferred weapons against irregular migration. This type of agreement provides for reciprocal undertakings between the two signatories concerning the return of nationals of their own countries or of any third country who have entered the territory of one of the two parties irregularly.

Amnesty International is not opposed in principle to readmission agreements, which are not illegal in themselves. However, the organization stresses that any readmission agreement has to be fully compliant with the human rights obligations with the states parties to the agreement. They must contain clear provisions protecting the rights of migrants and asylum-seekers. These must include their rights to liberty and freedom from arbitrary detention; protection against torture or other ill-treatment; their rights to access to a fair and satisfactory asylum procedure and protection from return to a country or territory where he or she would be at risk of serious human rights violations.

In order to stem migration flows, the EU and its Member States have sought to persuade the migrants’ countries of origin and the countries through which they travel to agree to enter into readmission agreements or clauses within the framework of their development aid policies.

Faced with resistance on the part of some States – unenthusiastic about agreeing to readmit nationals of third countries onto their territory - the EU resorted to what, in March 2006, the European Commissioner for Justice and Internal Affairs, Franco Frattini, clearly called “levers” or “carrots”.¹¹

In the context of the policy conducted by the EU to generalize the signature of readmission agreements or of cooperation agreements incorporating readmission clauses with countries of the South, the Cotonou Agreement, signed in 2000 with the ACP (African, Caribbean and Pacific) countries, marks an important date. Article 13 of the agreement incorporates, in effect, a standard readmission clause which provides that every State Party “shall accept the return of and readmission of any of its nationals who are illegally present on the territory” of another State Party “at that State’s request and without further formalities”. This text also makes provision for the possibility of adopting “if deemed necessary by any of the Parties, arrangements for the readmission of third country nationals and stateless persons”.¹²

At the European Council meeting in Seville in June 2002, the EU went a step further by stating that, in the future, it would systematically include in its cooperation and association agreements “a clause on the joint management of migration flowsand on compulsory readmission in the event of illegal immigration".¹³

This provision therefore became, at Community level, an essential weapon against irregular migration. However, the EU has often been faced with problems concluding readmission agreements with transit countries, in particular, which have resisted EU pressure attempting to impose the readmission onto their territory of third country nationals.¹⁴

For their part, some Member States, notably France and Italy, but also Spain, are already largely committed in this respect, and have signed readmission agreements with a certain number of countries of Eastern Europe, the Maghreb and West Africa.

3.2. The introduction of Frontex

In parallel with these readmission agreements, in October 2004 the EU set up a European Agency for the management of operational cooperation on the external borders of the Member States of the EU, known as Frontex. The objective of this agency is to reinforce security on the EU’s external borders by coordinating the action of Member States and facilitating the application of Community measures relating to the management of such borders.¹⁵

Frontex has conducted migration flow control operations along all of the EU’s external borders (notably in the Baltic sea ports, the borders of Austria, Hungary, Slovakia and Romania and also the coasts of Libya, Greece and Italy).

With regard to West Africa, it was in August 2006 that Frontex put in place an operation to control irregular migration from West Africa to the Canary Islands. These operations, named HERA I, II and III have been developed at the request of Spain and have two main objectives: deployment of groups of experts from other Member States to support Spanish authorities on the Canary Islands interviewing the migrants arriving as well as carry out joint sea patrols along the coast of West Africa. The first objective should help to identify the country or origin of the migrants concerned in order to facilitate their return and should at the same time produce information with regard to the identification of those responsible for the facilitation of the sea crossings. The joint sea patrols are organized close to the West African coast in order to stop unseaworthy boats from continuing their dangerous journey.

Under the aegis of Spain, several European countries have participated in this operation, notably Germany, France, Italy, Luxembourg and Portugal. The operation involved sending experts to the Canary Islands and providing ships, helicopters or planes, as well as personnel on the ground. The operation was implemented in collaboration with Mauritania, Cape Verde and Senegal (agreements signed between Spain and these countries). Initially intended for a limited period, the operation has been renewed several times and is still active today. For instance, within the framework of Frontex, Luxembourg made available a helicopter to Mauritania. This is based in Nouakchott and undertakes air patrols along the Mauritanian coast.

France has also contributed to this operation. The director of the “Direction centrale de la Police aux frontières (DCPAF, Central Directorate of Border Police) within the Ministry of the Interior stated to Amnesty International that France was lending a Falcon plane for certain flight routes as well as providing an expertise on forged documents ( La France fournit des heures de vol d’un Falcon depuis Marseille ainsi qu’une expertise des faux documents). He specified that, “Owing to our knowledge of West Africa and the French language, and to our experience with forged documents from these countries; our representatives are spending one or two months there assisting Spanish officials in interviewing migrants, looking for their connections, and denouncing those responsible.”¹⁶

In any case, the HERA operation is considered a success by Frontex. According to the 2006 annual report of Frontex: “During the operational phase of HERA II, 3887 illegal immigrants on 57 cayucos (small fishing boats) were intercepted close to the African coast and diverted. During HERA I and II operations, close to 5000 illegal immigrants could be stopped from setting off for a dangerous journey that might have cost their lives”. The report does not contain any information on where the 3,887 migrants were diverted to, nor whether or not they were in need of international protection.¹⁷

Part of the HERA operations in the Canary Islands are aimed at identifying the traffickers through interviews of the migrants that arrive there. The Frontex 2006 annual report stated that Frontex experts and Spanish authorities identified 100% of the irregular migrants and it is added that “through the information collected during the interviews, it was possible to detain several facilitators mainly in Senegal and to avoid the departure of more than one thousand people”. The report did not specify what the number of 1,000 prevented departures was based on.

4. VIOLATION OF MIGRANTS’ HUMAN RIGHTS

Several of the migrants Amnesty International met at the detention centre at Nouadhibou told how the security forces had treated them roughly or insulted them at the time of their arrest. Most had been robbed of some of their possessions and many said that they had been arbitrarily arrested in the street or at home, when they were not making preparations to try to reach Europe irregularly. It is possible that some of these people were present in Mauritania irregularly, but others stated that their papers were in order and that they had seen these documents confiscated or torn up by the security forces at the time of their arrest.

Whatever the circumstances of these arrests, there is no legal foundation for detaining migrants who are accused of nothing more than wishing to reach Europe by irregular means. Indeed, leaving Mauritanian territory by irregular means does not constitute an offence of any kind under the country’s criminal code. The only reference to leaving national territory appears in decree 64-169 of 15 December 1964 on the immigration system in Mauritania and applies only to ordinary foreign immigrants who, when they wish to leave Mauritanian soil, must “have [their] foreign identity cards stamped by the administrative authority at the place of exit”. Failure to observe this formality cannot be classified as an offence. The National Security officers responsible for the detention centre at Nouadhibou are aware of this basic principle of law. One of their senior officers clearly indicated to the Amnesty International delegates that seeking to leave the country in a clandestine manner “does not constitute an offence under the law”. This was also recognized by the prosecutor at Nouadhibou when he told the Amnesty International delegates: “These migrants have done nothing wrong because it is not, at least at the present time, an offence to leave the country irregularly”.

Penalizing a person for an offence that does not exist under the law is a violation of one of the basic principles of national and international law. This is recalled, in particular, in article 6 of the African Charter on Human and Peoples’ Rights, which states: “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

4.1.“We are not thieves, yet the police beat us and rob us”

Several migrants told the Amnesty International delegation that they had been beaten and their possessions had been taken by the Mauritanian security forces at the time of their arrest. No investigation was undertaken by the authorities to verify these allegations.

Three Malians at the detention centre at Nouadhibou said they had suffered a beating and had been robbed of their possessions at the time of their arrest. One of them said:

“On the evening of 4 March [2008], I walked for two hours to catch the boat, not far from Sahara. I put on three pairs of trousers, three jumpers and a jacket and I was on the beach waiting to board the small boat that would take us to the bigger boat that was waiting for us out at sea, when the soldiers¹⁸arrived. They told us to lie down on the sand, and whenever I raised my head, they hit me. The soldiers searched the migrants and took their money and other possessions, including their mobile phones.”

Other migrants were robbed of their possessions at the police station to which they had been taken. One 19-year-old Senegalese from Kaolack said that on 3 March 2008 he was waiting on the beach with about twenty other migrants for the boat that was to take them to Spain when:

“Suddenly, four soldiers arrived. I ran away, but they saw me and two of them fire into the air once, then a second time. We were arrested by the sea. They took us to the army camp by car. On the way, they hit us, slapped us and hit us with a belt. When we arrived at the camp, they stripped us and searched us. They took 25,000 ouguiyas (around 70 euros) from me as well as my mobile phone. We are human beings, workers, we are trying to find a way to help our parents. We have rights. We are not thieves, yet the police beat us and rob us, it’s sickening”.

Some members of the Mauritanian security forces allegedly insulted and humiliated the migrants they arrested. One group of Senegalese told Amnesty International at the detention centre at Nouadhibou: “the police arrested us on the beach as we were preparing to board a small boat. They hurled insults at us in a Mauritanian language, insulting our fathers and made us lie on the ground, handcuffed, for some time, but they did not hit us”.

Torture and ill-treatment are generally prohibited by all international human rights instruments that protect the rights of migrants in particular (see Part 7: International Standards on the Protection of Migrants).

4.2. “They arrested me, but it’s not fair because I haven’t yet attempted to go to Spain”

Corroborating information indicates that some members of the security forces do carry out arbitrary arrests of foreign nationals, notably nationals of ECOWAS countries. These people, arrested in the street or at home, apparently without any evidence, were allegedly accused of intending to leave Mauritania irregularly to travel to Europe. Some of these people, held at the detention centre at Nouadhibou to await being sent back to Mali or Senegal, told the Amnesty International delegation that they were legally present in Mauritania and that, at the time of their arrest, the security forces had torn up their residence permits. Amnesty International fears that these arbitrary arrests are one of the perverse effects of the pressure exerted by the EU on the Mauritanian government.

© AI – Migrants in the Nouadhibou Detention Centre

Some people being held at the detention centre at Nouadhibou said that they had been arrested at home in the middle of the night. A 41-year-old Malian who had been at Nouadhibou for two years said: “I was arrested yesterday, in my room. I don’t know why. I slept on the floor at the police station and I came here [to the detention centre] this morning. Yet I have a job, I have a rickshaw, I’m not an illegal migrant, I have been living here for two years and all my papers are in order. I have no intention of going to Europe; I’m head of a family. I don’t know what’s going to happen, they don’t tell us anything. What will happen to me and my family if they send me back to Mali? My rickshaw is worth 20,000 ouguiyas (around 55 euros) and I could lose it”.

Others who have been arrested then sent to the detention centre at Nouadhibou told Amnesty International that they had been arrested in the street simply because they were wearing two jackets or two pairs of trousers. This simple fact appears to be interpreted by the Mauritanian security forces as proof that they are preparing to leave for Europe, even though the weather can be cold in Nouadhibou, especially in the evening. One Malian, born in 1987, recalled: “I live here at my friends’ house and I do odd jobs, especially car washing. Yesterday evening [2 March 2008], I was walking alone; I was cold and was wearing two pairs of trousers and a jacket when I was arrested by the police. I don’t speak their language, but I understood that they were accusing me of intending to leave for Europe. They seized my identity card and brought me here. I know that I’m going to be sent back to Mali, but it’s not fair because I wasn’t going to go to sea.” 

Amnesty International also gathered the testimony of an Ivorian at the detention centre at Nouadhibou, who said that he had been arrested on 1 March 2008 when he was in a taxi. “I was arrested in a taxi by police officers who were looking for migrants. They said if I gave them money they would release me. I refused and was taken to the police station. I said that I was selling mobile phones, but they accused me of making preparations to leave. If I’m earning money and I can leave, I accept that they can arrest me as an illegal migrant. But they didn’t catch me on the way; I find that hard to take. I acknowledge that I intended to leave, but I haven’t done it yet because I can’t afford it yet”.

Other people have told Amnesty International of the sense of injustice and impotence they felt with regard to an arrest which was not justified by an attempted departure to Europe. One Guinean national told Amnesty International: “I was arrested yesterday evening [Sunday 2 March]. I was at home, and I went out to eat. The police arrested me and I had forgotten to take my identity card. They arrested me, but it’s not fair because I haven’t yet attempted to go to Spain, I can’t afford it, and now they are going to send me back to Senegal”.

Information gathered by Amnesty International also shows that the Mauritanian security forces have sometimes arrested nationals of ECOWAS countries, simply in order to demand money from them. Those who refused to pay found themselves at the detention centre and were then expelled. This is what appears to have happened to an 18-year-old Malian, who told Amnesty International:

“I don’t want to go to Europe. I came to Nouadhibou to buy dried fish to sell in Mali. On Saturday, 1 March, at around 23.00, I was coming back from the port where I had ordered some dried fish. I was wearing a Barcelona football shirt and a tracksuit when the police arrested me. They asked me what I was doing there and I said that I had just been to order some dried fish. They asked me for money, but I told them that I didn’t have any. They took my identity card and my vaccination card. Then they sent me here and said that I was going to be sent back to Mali.”

It is certainly possible that some of these detainees were in an irregular situation when they were arrested because many migrants enter Mauritania at unofficial crossing points and do not register with the authorities which is a criminal offence.¹⁹

However, there is evidence that appears to indicate that nationals of African countries, notably ECOWAS countries, have been arrested arbitrarily, even though they have papers, on the pretext that they were attempting to go to Europe irregularly. The arbitrary nature of these arrests has been condemned by the United Nations Working Group on Arbitrary Detention which, following a mission to Mauritania in February 2008, reported: “The Group noted that many foreigners are detained by the police without any warrant, sometimes even when they have papers, particularly if they are suspected of attempting to emigrate to Europe”. ²⁰

4.3. “It’s like being in prison. It’s not normal, we’re not criminals”

The migrants arrested in the Nouadhibou region who were known, or presumed, to have attempted to reach Europe irregularly, are held in a centre governed by the National Security Service without any legal control on the part of the judicial authorities (See the box entitled “Guantanamito”, a detention centre with no official name).

The Amnesty International delegation made two visits, in March 2008, to the detention centre at Nouadhibou. The first time the delegates arrived at the centre, 62 people were being held there, including two women who were in a separate room. All the men were in two former classrooms, which had become de facto cells and were overcrowded. The hygiene conditions did not meet the international standards applicable to persons deprived of their liberty. In addition, several minors were present in the room, alongside the adults.

Many migrants complained about the conditions of their confinement. For instance, a group of 35 who had been expelled by Morocco were being held in a room measuring 8m by 5m, with bars at the windows, which contained 17 bunk beds. A 27-year-old Malian said: “You can’t leave this place. You have to urinate into a bucket on the spot. For other personal needs, we are obliged to bang on the door and beg the guards to let us go to the lavatory. Sometimes, they make us wait 20 to 30 minutes before opening the door for us”.

Another migrant told of the living conditions that he and his companions were obliged to endure:

“It’s like being in prison, it’s not normal; we’re not criminals. You have to take your chance; sometimes you fail. They have to let us leave – there are adventurers all over the world. The doors of our room are locked at all times; it’s hot and some people smoke in here. The Red Cross brings us food, that’s all; we eat on our beds. We urinate into a big bucket that’s kept in what used to be the schoolteacher’s cupboard. They tell us nothing. They are going to send us back, Inch Allah! You’ve failed, don’t make a fuss. Why do they treat us like prisoners? They tire us out, we can’t sleep”.

Many migrants expressed their astonishment at being treated in this way by the Mauritanian authorities. One Malian told the Amnesty International delegates: “We can’t understand why they treat us like this. We’re not criminals. The guards don’t tell us anything about what is going to happen. I know that they are going to send me back to Mali. If Mauritania expels you like this, it’s because they have Europe’s backing”.

Those migrants who dare to complain are in danger of being beaten by the guards. On the day the Amnesty International delegation made its first visit to the centre, 3 March 2008, two Malians had been beaten up. One of them recalled: “I’ve been here four days. This morning, my companion and I asked the police to let us go because we had done nothing wrong. The police officers handcuffed us together, then five of them made us lie on the ground, and one of them kicked us and hit us with a belt.”

Forced to remain silent, the migrants let their anger and their frustration spill out on to the walls of their “cells”. Below are some examples of graffiti that the Amnesty International delegation read on the “cell” walls:

• “Please release us; God grant that we never come back to this place”.

• “When white people first came over the sea to Africa, nobody treated them as illegal immigrants; why is it that today, when we try to go by sea to Europe, we are treated as illegal immigrants?”.

• “Tired of living, but afraid of dying. What can I do?”

• “Life is a risk. But what is the risk?”

These detention conditions are contrary to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and, in particular, Principle 6which states: “No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.” Principle 11, for its part, states: “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.”²¹However, all of the information gathered by Amnesty International clearly shows that the migrants who had been arrested and held at the detention centre at Nouadhibou awaiting expulsion did not, at any time, have the opportunity to challenge the legality of their detention or appeal the decisions for collective expulsion taken against them.

“Guantanamito”, a detention centre with no official name

The detention centre at Nouadhibou was opened in April 2006²². It is a former school which was restored by the Spanish authorities early in 2006. The authorities had set up large tents and a canteen in the school yard. However, as soon as the Mauritanian authorities began to use it as a detention centre, the tents and the canteen disappeared, leaving just the former classrooms which became de facto “cells”. At the present time, the former classrooms have 216 bunk beds distributed among several former classrooms, but when the Amnesty International delegation visited the centre at the beginning of March 2008, only three classrooms were in use, which resulted in a serious problem of overcrowding and deplorable hygiene conditions. The centre is managed by the Mauritanian authorities, but meals are funded and delivered by the Spanish Red Cross and the Mauritanian Red Crescent. These two organizations also give migrants the opportunity to telephone their parents.

This detention centre appears to have been set up within the framework of the decisions taken at a high level meeting at Nouakchott on 16 March 2006, attended by the Spanish Secretaries of State for Foreign Affairs and Security and their Mauritanian counterparts with responsibility for the Interior and Foreign Affairs and Cooperation. A joint press release, published after the meeting, states, in particular:

“The Mauritanian party informed the Spanish party of its intention to open reception centres for immigrants involved in repatriation proceedings.

For its part, the Spanish party undertakes to support Mauritania in the construction and management of such centres”.²³

© AI – Nouadhibou Detention Centre

The centre, which is not governed by any regulations applicable to Mauritanian detention centres, does not appear to have an official name, either. The Regional Director of National Security in Nouadhibou told Amnesty International that the Mauritanian authorities referred to it as the “reception centre for clandestine migrants”. The Spanish Consul in Nouadhibou has said that the Spaniards called the centre “internment centre or detention centre” (Centro de internamiento o centro de retención). The migrants held at the centre refer to it as the “Red Cross Centre”, while other inhabitants of Nouadhibou and some migrants call it “Guantanamito”.²⁴This uncertainty as to the name of the centre is a further indication of the absence of any legal character for this detention centre.

According to official sources, the centre receives between two and three hundred people every month. Statistics supplied to Amnesty International by the National Security Service in Nouadhibou show that, for the year 2007, 3,257 people were held in the retention centre, including 1,381 Senegalese and 1,229 Malians. All were subsequently expelled to Senegal or Mali. As the centre is not governed by any law, there is no limit on the duration of such detention, which may extend from one or two days to a week or more, until the police are able to organize transport for these people.

As soon as they arrest persons suspected of trying to reach Spain irregularly, the Mauritanian authorities interrogate them concerning their nationality and their point of entry into Mauritania (in almost all cases, these people enter over land through either Senegal or Mali). This may prove to be a difficult task, because those migrants who leave in fishing boats dispose of their papers. Some migrants say they are of a nationality other than their real nationality to avoid being forcibly repatriated to countries to which they do not wish to go. This is particularly true of some Senegalese migrants whom the Amnesty International delegation met at the detention centre at Nouadhibou. These migrants had been arrested in Morocco, then expelled to Algeria via the border post of Oujdah in very difficult conditions²⁵. Re-arrested by the Moroccan authorities after attempting another crossing to the Canary Islands, they said they were Mauritanian, so as to be expelled to that country rather than Algeria²⁶.

4.4. “Nobody wants to have anything to do with us”: how forcible expulsion takes place

Although Mauritania agreed to co-operate with Spain in dealing with irregular migrants, it also adopted a policy of expulsion to Mali or Senegal with regard to migrants from third countries expelled by Spain or arrested in Mauritania while avowedly or allegedly trying to travel to Spain irregularly. Expulsions are organized as quickly as possible, with no official procedure and no possibility for individuals to challenge the expulsion order. A Mauritanian official told Amnesty International that the number of migrants taken to the border rose to 11,600 in 2006 and 7,100 in 2007. All Malian migrants or those supposed to have entered Mauritania through Mali are sent to Gogui (a Malian village near the border with Mauritania). All other arrested migrants, of whatever nationality, are sent to Rosso, on the River Senegal, from where they are forcibly expelled by boat to Senegal.

The Mauritanian authorities offer migrants no right of appeal against expulsion. Only a few refugees arrested on suspicion of wanting to travel to Spain irregularly have been released after the United Nations High Commission for Refugees (UNHCR) or its local operational partners were able to confirm their status as refugees. Amnesty International knows of at least one case of an Ivorian refugee released from Nouadhibou detention centre after his status was confirmed by the UNHCR's operational partner in that town.

The Nouadhibou regional director of national security openly acknowledged that the authorities’ objective is to forcibly expel non-Mauritanian migrants as quickly as possible to Senegal or Mali.  He told the Amnesty International delegation: “We hire private buses for the drive to Nouakchott, where the national office takes care of transporting them to Gogui [in Mali] or Rosso [on the border with Senegal]. At least 19 people are needed for a full load, which explains why some migrants may stay at the detention centre for a few days.”²⁷ The cost of transporting migrants to the border is high and, according to a Nouadhibou security officer, the Mauritanian authorities cover the costs "in co-operation with international partners".²⁸

In addition to the migrants arrested in the Nouadhibou region, hundreds of other migrants are regularly forcibly expelled to Mali or Senegal from Nouakchott after having been flown back by Spain from the Canary Islands in accordance with the 2003 readmission agreement. One of these migrants, a Ghanaian, born in 1984, described to Amnesty International the conditions of detention on the Canary Islands and how he was sent back to Mauritania.

“The Spanish police arrested us as our boat was approaching Tenerife. They took us to a police station where we were interrogated individually so that we couldn’t agree on a story. The police took our fingerprints and made a note of our names. We spent most of the time on mattresses in the yard at the police station. After three days, we were taken to a camp. We were very tired; I spent the whole time lying down. After 28 days, the police came to get us. They put a green band on our arms, the sort of thing you put on newborn babies. They gathered us all together and took us by bus. I thought this was a positive sign; they were taking us into town. I thought: ‘I’ve done it. They’re going to take us to Madrid or Barcelona’. I had memorized the phone numbers of close friends in Spain. It was only when we reached the airport that I realized. The police handcuffed us and the next thing we knew we were in Nouakchott. There, the Spaniards gave us 50 euros each and handed us over to the Mauritanians”.

Several migrants have told Amnesty International that the Spanish authorities do not tell migrants they are being forcibly expelled to Mauritania, probably to avoid protests.

The Amnesty International delegation visited Rosso, on the banks of the River Senegal, where all expelled migrants judged to have entered the country through Senegal are sent to, whatever their nationality. The delegation met the Rosso chief of border police who told us that approximately a dozen migrants were forcibly expelled every day to Senegal. He added: "we do not have any statistics, sometimes there are a lot. If they refuse to go, we sort it out, we manage to persuade them.” Amnesty International obtained information according to which migrants who are expelled to Senegal or Mali were generally left without much food and no means of transport.

In some cases, these collective expulsions lead to disputes between the Senegalese and Mauritanian local authorities, with each country trying to get rid of the migrants. One Ghanaian migrant told Amnesty International that in December 2007: “The Mauritanians took us to Rosso. We got on the ferry to cross the river, accompanied by Mauritanian police officers. When we got to the Senegalese shore, the Senegalese soldiers refused to accept us and sent us back. We did four round trips between Mauritania and Senegal. Nobody wanted anything to do with us. In the end, the Senegalese agreed to take us. After a week in Senegal, I came back to Mauritania and now I’m trying to get to Spain.”

“Kandahar”, a minefield in no man’s land between Morocco and Mauritania

Several migrants interviewed by Amnesty International in Nouadhibou said they had been expelled from Morocco to a five-kilometre long desert zone between the south of Western Sahara and Mauritania. This area, considered by the two countries to be a no man's land, is called Kandahar because of the anti-personnel mines that date from the conflict between Mauritania and the Polisario Front.²⁹

Some migrants were trapped in this minefield for weeks. For example, five sub-Saharan migrants, arrested on 28 June 2006 off Dakhla, Morocco, were abandoned in Kandahar for 24 hours, with neither Morocco nor Mauritania allowing them into their territory. They managed to survive thanks to the assistance of Médicos del Mundo, a Spanish NGO that has an office in Nouadhibou. The NGO publicly denounced this situation and Mauritania finally agreed to allow them entry.

In August 2006, another group of 53 people, shipwrecked on the coast of the Western Sahara were expelled by Morocco to Kandahar, with no food or water. This group of migrants from Senegal, Gambia, Côte d’Ivoire, Guinea and Mali had left Mauritania aiming to reach the Canary Islands. A Médicos del Mundo team went to the area to help the migrants. They found the body of one Malian migrant and two other people in an advanced state of dehydration. The Médicos del Mundo coordinator in Nouadhibou, who was a member of this mission, said that the "two sick people were so exhausted that their companions had to help them drink and eat.”³⁰

Before being allowed to return to Mauritania, a Mauritanian migrant expelled to Kandahar in May 2007, told Amnesty International : “The migrants are over there in ‘Kandahar’ and they can’t get out. You can’t come back to Morocco, because you’ve just been expelled and you can’t go back to Mauritania because you have no papers, because everyone who wants to leave gets rid of their papers before they board the boat. People can be there for weeks and months. They are fed by the Red Crescent and they sleep in tents donated by the Red Crescent. Often it’s the Médicos del Mundo, based in Nouadhibou, who manage to get them back into Mauritania.”

Amnesty International reiterates that migrant workers are entitled to protection against arbitrary or collective expulsion under several international human rights instruments and notably under article 22 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. These collective expulsions are also inconsistent with the standards provided for in General Recommendation No. 30 of the Committee on the Elimination of Racial Discrimination. (see also part 7 on international standards on the protection of migrants).

5. SPANISH PRESSURE ON MAURITANIA

It is impossible to understand Mauritanian policy towards migrants who attempt to travel to Europe irregularly via the Canary Islands without examining the pressure that Spain puts on the Mauritanian government.³¹

5.1 The immigration agreement of July 2003

The presence of Spanish forces on Mauritanian territory forms part of the increasingly close cooperation between Spain and Mauritania in their fight to control the flow of migrants attempting to reach Spain, especially the Canary Islands, from the Mauritanian coast. This cooperation has its principal legal basis in the Agreement on Immigration signed by the two countries in July 2003. The agreement contains a readmission clause covering migrants from third countries. The agreement also provides that Spain will provide technical assistance to Mauritania.

Spain has increasingly based its actions on this agreement since 2006, when the flow of migrants from Mauritania increased considerably. Under the agreement, Spain can request that Mauritania readmit not only Mauritanian migrants but also migrants from third countries who have tried to travel to Spain from the Mauritanian coast.

The Spanish government has therefore been within its rights to request that the Mauritanian authorities readmit migrants who have avowedly or allegedly reached the Canary Islands from the Mauritanian coast. During its mission, Amnesty International learned that between 28 February and 6 March 2008, the Mauritanian authorities received three requests for readmission of a total of 274 migrants, including 14 minors who, according to the Spanish authorities, admitted embarking from Nouadhibou. Almost all these migrants were citizens of ECOWAS countries. The legal basis on which Spain bases its requests to Mauritania to readmit Mauritanian migrants and citizens of third countries is article IX of the 2003 agreement. Paragraph I of this article states that:

“Each Contracting Party must readmit, at the request of the other Contracting Party, citizens of third countries who did not or no longer fulfil the conditions of entry or residence applicable in the territory of the requesting Contracting Party if it is verified [emphasis by Amnesty International] that the citizens of third countries have travelled through the territory of the requested Contracting Party.”

Paragraph 2 repeats this text with a single change, the significance of which is considerable because it provides for readmission of third country citizens to the territory of one of the two parties “if it is presumed [emphasis by Amnesty International] that third country citizens have travelled through the territory of the requested Contracting Party after an agreement on their case.”

Paragraph 2 has allowed the Spanish government to ask Mauritania to readmit migrants even without being able to prove they embarked from the Mauritanian coast. Amnesty International has learned that the Mauritanian government has often sought to avoid the obligation to readmit migrants to its territory by questioning whether migrants arrested in Spain did in fact embark from the Mauritanian coast. In such cases, the agreement stipulates that the representatives of the Mauritanian authorities should go to the Canary Islands to lead a counter inquiry to determine whether the migrants in question embarked from Mauritania. However, the investigation capacity of the Mauritanian authorities cannot rival the resources available to the Spanish authorities with the support of Frontex. A representative of the Mauritanian authorities told Amnesty International: “The Spanish use satellite photos to show the Mauritanian government that such and such a group of migrants embarked from Mauritania and that they must return there. We do not have the technical resources to contradict this information." Another Mauritanian official admitted that the Mauritanian government very often agreed, under pressure from senior representatives of the Spanish government, to readmit migrants from third countries "while knowing that they did not travel through Mauritania." This official said that the policy caused problems with the people of neighbouring countries. The official also indicated that on one occasion, after the collective expulsion of migrants to Mali, "the Malian people took issue with the Mauritanian police officers escorting the migrants, telling them: ‘You are the police officers of the whites.’”

Another Mauritanian official told Amnesty International: “We are forced to use our meagre resources to take migrants back to Senegal and Mali. This situation makes our government ill at ease with regard to the people of neighbouring countries. Frontex cannot solve our problem. The security response is not the most effective. It is necessary to promote development in Africa, but our European interlocutors are obsessed by the security aspects."

Amnesty International believes that all those expelled from Spain to Mauritania should have access to fair and satisfactory asylum procedures in Spain if they so wish. In addition to respecting the principle of non-refoulement, Spain must respect the right of individuals to determine their state of destination. Such third country citizens should not be forced to return to Mauritania, but should instead chose their country of destination, subject to the latter country’s agreement.

Spain has also signed a cooperation agreement with Mauritania to conduct joint surveillance operations along the Mauritanian coast. Spain began to provide equipment and training to the Mauritanian authorities with the aim of allowing them to strengthen maritime border control. This is set out in the joint communiqué issued after a high-level meeting between the Spanish Secretaries of State for Foreign Affairs and Security and their Mauritanian counterparts responsible for the Interior Foreign Affairs and Cooperation, in Nouakchott on 16 March 2006. The document states that: "Aware of the importance of material and technical resources for border control, as expressed by Mauritania, the Spanish authorities agree to provide the Mauritanian gendarmerie with four patrol boats in perfect condition and to ensure the training of the personnel responsible for their operation." The Spanish authorities also agreed to provide "appropriate training to Mauritania, to ensure the improvement of its security forces in the fields of investigation, research into trafficking networks, the trafficking of people, the analysis and processing of information, border control, research into false documents and training of the Mauritanian teams responsible for maritime surveillance and all other requests made by Mauritania."

Although these agreements sought to establish close cooperation between Spain and Mauritania in order to control migration, they were unable to respond to humanitarian crises such as the one which occurred on 30 January 2007 following the interception by the Spanish sea rescue service of a boat, the Marine I, which had 369 people aboard. The passengers, believed to be from Asia and Sub-Saharan Africa, were travelling to the Canary Islands. The Spanish rescue service assisted the boat to a position 12 miles off the coast of Mauritania. The boat remained stranded there for almost two weeks until the Mauritanian and Spanish authorities agreed on 12 February to allow the boat to land in Mauritania. Part of the agreement allowed the Spanish authorities to manage the welfare and processing of the migrants and asylum-seekers in Mauritania. The Spanish authorities agreed to process the asylum claims of 10 Sri Lankans on board, who were transferred to the Canary Islands along with 25 others. However, despite a positive report from UNHCR, the UN refugee agency, the asylum claims were not admitted into the Spanish asylum procedure and all 10 individuals were deported on 25 March 2007.

At the end of March 2007, most migrants accepted repatriation to their countries of origin³²but twenty-three individuals remained for three months in a hangar in Nouadhibou Mauritania under the effective control of Spanish authorities in conditions of detention that did not comply with Spanish law. According to allegations received by Amnesty International, these men were held in a room that measured 25 m². They were prevented by the Spanish Guardia Civil from leaving this room and were reportedly not allowed to go outside and had to request permission to use sanitary facilities. According to reports, their physical and mental health seriously deteriorated during this period and they showed symptoms of severe anxiety and stress. Furthermore, the detainees did not have access to counsel, to a court to challenge the legality of their detention or to the outside world. On 18 May 2007, 17 of them were transferred to a detention centre under Mauritanian jurisdiction, and in June they were returned to Pakistan. The remaining six were transferred to Melilla (Spain) to receive psychological treatment as a result of their experience in detention.

Although the detentions did not occur on Spanish territory, Amnesty International believes that the Spanish authorities exercised de facto effective control over the 23 men. Therefore, under international law, the government of Spain had a duty to ensure that their human rights were respected and protected, including their rights to liberty and freedom from arbitrary detention; protection against torture or other ill-treatment; their rights to access to a fair and satisfactory asylum procedure and protection from return to a country or territory where they would be at risk of serious human rights violations.

Amnesty International has communicated its concerns to the Spanish government, which replied, on 20 July 2007, that: "The intervention of the Spanish government, although it had no jurisdiction in the matter, occurred with the sole aim of fulfilling its humanitarian duty to come to the rescue of the boat [Marine I] and to save the passengers and crew. This is why one cannot call its conduct into question or demand it assumes responsibilities and takes actions that are outside its jurisdiction.”

However, information obtained by the Amnesty International delegation during its mission to Mauritania in March 2008 confirms that the Spanish authorities exercised significant psychological pressure on the 23 individuals requesting asylum in Nouadhibou and kept them in very gruelling detention conditions apparently in order to break their physical and moral resistance.

6. ASYLUM SEEKERS AND REFUGEES

The situation of asylum seekers and refugees in Mauritania is precarious. The national procedure for requesting asylum, established in 2005, is not yet fully operational and it is still the UNHCR that examines almost all applications for asylum. In 2007, the Commission nationale consultative sur les réfugiés, National Consultative Commission on Refugees, examined only a few dozen cases of individuals granted refugee status by the UNHCR delegation in recent years.

Most of the refugees in Nouakchott in March 2008 were worried about the situation in Mauritania. Many of them mentioned their children's lack of access to education. Some have tried to leave the country and travel to Europe while others plan to do so. Despair can lead to tragic situations. In Nouakchott, the Amnesty International delegation met a family in which one parent was considering risking the trip to the Canary Islands while the partner did not want to risk the safety of their children. The Sierra Leoneans met by Amnesty International said they had asked to return to their country in 2004 and that their certificates of refugee status had not been renewed; some of those who were expelled have returned to Mauritania and live there without authorization.

The consideration of refugee applications for asylum and protection is currently going through a transitional phase in Mauritania. Until 2005, no law gave the Mauritanian authorities any jurisdiction to consider issues regarding refugees. Cases were dealt with by the UNHCR Nouakchott office, which considered requests for asylum and granted certificates, renewable in six months, to those it recognized as refugees.³³ These certificates do not take the form of an identity card and consist of a single sheet of green paper. Refugees do not receive a refugee card or a residence permit or a travel permit allowing them to leave the country.

Moreover, although a copy of the UNHCR certificate is sent to the Ministry of the Interior, several refugees have provided testimony to Amnesty International showing that some elements of the security forces either do not seem to be aware of the existence of this document or they dispute the authenticity of it. In some cases, it even seems that police officers have torn up these certificates in an arbitrary manner.

Amnesty International has also learned that refugees are regularly arrested and are not usually released without the intervention of the UNHCR or a third party guarantor of their status. One refugee told Amnesty International: "The police often arrest us and take us to the national security offices for questioning. We showed them our refugee certificates but they tell us they have to check with the UNHCR because there are many forged certificates."

In another case, several refugees were arrested on 25 February 2008 inside and at the entrance of a restaurant in Nouakchott and were only released the following day, after the employer of one of them intervened. One of this group, a Sierra Leone citizen, told Amnesty International :

“Around 1.15 pm, I was inside my restaurant when three policemen got in. They asked for my papers which they did not look at and asked me to accompany them to the national security office, near the ministry of internal affairs. Other refugees were also arrested near my restaurant or in town. On our arrival, one of the refugees called the UNHCR protection officer who asked us to be patient and that we were going to be released soon. The police told us that the UNCHR should come to testify that we were in fact refugees. The next day, the employer of one of the refugees came and he testified that he knew one of us. We were then released.”

In at least one case, two Sierra Leonean refugees, recognized as such by the UNHCR, were arrested and expelled by the Mauritanian security forces to Mali in December 2004. One of them, Alpha Koroma, died on the way to Mali from the effects of an illness. Amnesty International met Alpha Koroma’s travelling companion, who was expelled with him but who has returned to Mauritania. He told us:

“I went to visit Alpha who was being held at the police station in the Fifth arrondissement in Nouakchott. All the refugees had mobilized to demand his release and the HCR had been called. We had clubbed together to obtain his release, but the police said that it wasn’t enough. During one of these visits, I was arrested and expelled with Alpha before the HCR could intervene. Alpha was ill and he died en route between Kayes and Bamako”.

6.1 Mauritanian legislation on asylum

It is only since 2005 that Mauritania has domestic procedures to decide on applications for asylum and protection. The two applicable laws in this area are Decree 2005.022 of 3 March 2005 from the prime minister “setting the modalities of application of Conventions on refugees”³⁴ and circular 0007 of 2 May 2006 from the Minister of the Interior on the “modalities for the registration of applications for asylum and refugee status.”

The Decree of 3 March 2005 refers to the two definitions of refugees in article 1 of the 1951 Convention relating to the Status of Refugees and article 1 of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

This Decree states that applications for refugee status must be addressed to the Ministry of the Interior by the applicant or UNHCR. Applicants receive a receipt that serves as a provisional residence permit, renewable after three months, giving the right to employment and access to social services. Requests are communicated to the Commission nationale consultative sur les réfugiés (CNCR), National Consultative Commission on Refugees, which examines cases and gives an opinion to the Minister of the Interior, who decides whether to grant refugee status.

This Commission “advises the Minister of the Interior. Its remit is to give an opinion on applications for refugee status and, in general, on any question related to refugees and submitted to it for consideration.” It is chaired by a representative of the Ministry of the Interior and is composed of a representative from each of the following ministries: Foreign Affairs and Cooperation, Defence and Justice as well as a representative of the National Security Department, the National Police and the Commission for Human Rights, Poverty and Integration.

If refugee status is granted, article 13 of the 3 March 2005 Decree states that “beneficiaries of refugee status shall receive the same treatment as citizens with regard to access to health care, employment, social security and education.” Article 12 of the same Decree states that: "Beneficiaries of refugee status wanting to travel abroad shall be granted a travel permit, on request.”

The Decrees do not provide for any appeal procedure in cases where requests for asylum are rejected. The Decree includes clauses for the suspension and exclusion of the Geneva Convention but the Circular only says that decisions on applications will be communicated to the local authorities.

Despite the existence of these laws, Mauritanian legislation is not yet really implemented and, in the absence of the regular operation of the CNCR, it is still the UNHCR that examines applications for asylum and refugee status.

However, following the adoption of this decree and the creation of the CNCR, the responsibility for dealing with requests for asylum is being gradually transferred from the UNHCR to the Mauritanian authorities. The UNHCR is therefore currently passing the cases of recognized refugees on to the Ministry of the Interior, which is authorized to confirm or refuse such status.

According to information obtained by Amnesty International during its mission, there are currently 950 refugees under the protection of the UNHCR. In March 2008, the refugee status of 38 of the 80 cases so far transferred by the UNHCR to the Ministry of the Interior had been confirmed. It is therefore possible and even probable that people granted refugee status by the UNHCR are refused confirmation of their status, which could become a source of violation of the rights of refugees.

Amnesty International believes that the current system governing the consideration of asylum requests in Mauritania does not guarantee fair and satisfactory access to asylum procedures, notably with regard to the right of appeal in the event of rejection of applications. These guarantees are essential to ensure respect for the rights of all individuals "to seek and to enjoy in other countries asylum from persecution" in the event of persecution.³⁵ These guarantees are also indispensable to ensuring that Mauritania respects its obligations under the terms of the 1951 Convention relating to the Status of Refugees and the OAU Convention of 1969 Governing Specific Aspects of Refugee Problems in Africa.

7. INTERNATIONAL STANDARDS ON THE PROTECTION OF MIGRANTS

A certain number of international standards and United Nations reports have affirmed and set out the fundamental rights of migrants. The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which came into force in July 2003, and was ratified by Mauritania on 22 January 2007, is the most comprehensive standard on migrants’ rights.

With regard to the conditions for the arrest and detention of migrants, Article 16 of this Convention states that;

“Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.” (paragraph 4)

“Migrant workers and members of their families who are arrested shall be informed at the time of arrest as far as possible in a language they understand of the reasons for their arrest and they shall be promptly informed in a language they understand of any charges against them.” (paragraph 5)

“Migrant workers and members of their families who are deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the lang