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By Joris van Wijk is associate professor criminology  and Maarten P. Bolhuis is assistant professor criminology, Vrije Universiteit Amsterdamd ,  Center for International Criminal Justice

January 2023 a former commander with the infamous Russian mercenary Wagner Group – Andrey Medvedev – sought asylum in Norway. He claims to have deserted the organization, to have witnessed Wagner group members committing war crimes in Ukraine and to be willing to assist in holding them criminally accountable. This case raises a complex conundrum; can and should deserters like Medvedev be granted protection? And at what price?

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By Professors Elspeth Guild, Queen Mary University of London & Valsamis Mitsilegas, University of Liverpool

In September 2022, the long-awaited report by OLAF, (European Anti-Fraud Office), on Frontex was unofficially made public. Its contents had been made available to the European Parliament’s LIBE committee earlier in the year and the director of Frontex resigned at the end of April, a direct result of the damning contents of the report. The report sets out in great details eight cases where Frontex staff: (a) witnessed but did nothing to stop illegal push-backs of boats full of people seeking to make protection claims in Greece, (b) failed to make serious incident reports of fundamental rights violations or (c) relocated surveillance planes so that they would not record evidence of illegal push-backs. Clearly these meticulously documented illegal acts and cover ups are representative rather that definitive of the unfortunate activities of the agency in the eastern Aegean since the opening of Frontex’s operation there.

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By Dr Efthymios (Akis) Papastavridis

On 1 August 2022, the Court of Justice delivered its preliminary ruling on two joined cases (see here) concerning the conduct of Italian authorities over Sea Watch vessels that had disembarked rescued persons in Italian ports in 2020. Sea Watch is a humanitarian organisation which systematically carries out activities relating to the search for and rescue of persons in the Mediterranean Sea, using ships that it owns and operates. During the summer of 2020, Sea Watch 3 and Sea Watch 4, both flagged to Germany, carried out rescue operations and disembarked the persons rescued at sea in the ports of Palermo and Porto Empedocle (Italy). They were then subject to inspections by the harbour master’s offices because they were not certified in respect of search and rescue activities at sea and had taken persons on board in much greater numbers than they are supposed to do.

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By Dr. Jasper Krommendijk and Kris van der Pas, Radboud University

In recent years, the use of strategic litigation by NGOs has grown, especially in migration law.  Strategic litigation can be defined as the use of judicial procedures in order to create change beyond the individual interest or individual case. Aside from initiating and being a direct party to legal proceedings, one could also think of third-party interventions as a more subtle form of strategic litigation. Intervention can be compared to the (common law) practice of amicus curiae, Latin for ‘friend of the court’. Although certain differences exist between amicus curiae and third-party interventions in different legal systems, their purpose in legal proceedings is largely similar.

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Dr Maja Grundler, Royal Holloway University of London and Professor Elspeth Guild, Queen Mary University of London

A recent contribution to this blog discussed the complex legal picture emerging in relation to the EU closing its borders to Russian nationals. While that contribution touched on fundamental rights issues, specifically the right to seek asylum, there are many other human rights provisions which are relevant when discussing the closing of borders and the rights of those who seek to cross them. EU Member States must indeed respect the prohibition of collective expulsion and refoulement, the prohibition of forced labour and human trafficking, as well as the right to liberty, the right to family life, and the right to non-discrimination.

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By Daniel Thym, Director of the Research Centre Immigration & Asylum Law, University of Konstanz, Germany

The ongoing war of aggression against Ukraine is such a turning point, which requires decisive action and political leadership. Changes of direction and a certain willingness to improvise are virtues in such scenarios, while respect for legal rules will not always be a top priority. Indeed, critics were swift in concluding that ‘there is no legal way under current EU law’ for a visa ban and border closure. It seems as legal rules are brushed aside in the name of superior political motives.

This blogpost will demonstrate that the legal picture is more ambiguous. Neither the border closure, nor the visa ban are based on formal decisions taken at the EU level. That is why it presents a formidable challenge to justify them on the basis of legislation adopted years ago. However, the existing legal framework gives States some flexibility and a hardly visible adjustment by the Commission and the Finnish government was a smart move. All the rest depends on the administrative practices of the Baltic States, Finland, and Poland, which may disrespect the procedural subtleties of EU migration law, nonetheless.

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