TY - JOUR

T1 - Zurückweisungen von Migranten durch zivile Schiffe auf See

T2 - Eine strafrechtliche Perspektive

AU - Hahn, Johanna

AU - Schatz, Valentin

PY - 2020/12

Y1 - 2020/12

N2 - The article analyzes the phenomenon of push-backs of migrants and refugees rescued in the Mediterranean to Libya carried out by non-governmental vessels (so-called privatized push-backs). It does so from the perspective of German criminal law with respect to vessels flying the German flag. The article first provides an overview of the factual and legal background that has given rise to the phenomenon of privat-ized push-backs (including by vessels of German ship-owners), before turning to the issue of resistance by rescued migrants and refugees facing such illicit push-backs. The issue is illustrated by three relevant examples involving the vessels Vos Thalassa, Nivin and El Hiblu 1. Next, the article examines the role of the prohibition of refoulement under the European Convention on Human Rights in the context ofprivatized push-backs, which does not directly apply to the conduct of private actors, but which is relevant to the interpretation and application of national criminal law. Against this background, the article analyzes the criminal liability of crew members of vessels involved in push-backs of migrants and refugees to Libya, concluding that such conduct may constitute criminal abandonment (“Aussetzung”) pursuant toSection 221 (1) of the German Criminal Code. Finally, the article addresses the question of whether (violent) resistance by rescued migrants and refugees facing illicit push-backs may result in criminal liability. It shows that such conduct may constitute an attack on maritime traffic pursuant to Section 316c (1) of the German Criminal Code, but also that – in the vast majority of cases – this conduct would be justifiedeither as self-defense under Section 32 or due to necessity under Section 34 of the German Criminal Code. The article concludes that while German Criminal Law is in principle able to address privatized push-backs, the current factual situation leaves private actors – both commercial and activist – with an unacceptable burden and legal risk.

AB - The article analyzes the phenomenon of push-backs of migrants and refugees rescued in the Mediterranean to Libya carried out by non-governmental vessels (so-called privatized push-backs). It does so from the perspective of German criminal law with respect to vessels flying the German flag. The article first provides an overview of the factual and legal background that has given rise to the phenomenon of privat-ized push-backs (including by vessels of German ship-owners), before turning to the issue of resistance by rescued migrants and refugees facing such illicit push-backs. The issue is illustrated by three relevant examples involving the vessels Vos Thalassa, Nivin and El Hiblu 1. Next, the article examines the role of the prohibition of refoulement under the European Convention on Human Rights in the context ofprivatized push-backs, which does not directly apply to the conduct of private actors, but which is relevant to the interpretation and application of national criminal law. Against this background, the article analyzes the criminal liability of crew members of vessels involved in push-backs of migrants and refugees to Libya, concluding that such conduct may constitute criminal abandonment (“Aussetzung”) pursuant toSection 221 (1) of the German Criminal Code. Finally, the article addresses the question of whether (violent) resistance by rescued migrants and refugees facing illicit push-backs may result in criminal liability. It shows that such conduct may constitute an attack on maritime traffic pursuant to Section 316c (1) of the German Criminal Code, but also that – in the vast majority of cases – this conduct would be justifiedeither as self-defense under Section 32 or due to necessity under Section 34 of the German Criminal Code. The article concludes that while German Criminal Law is in principle able to address privatized push-backs, the current factual situation leaves private actors – both commercial and activist – with an unacceptable burden and legal risk.

KW - Rechtswissenschaft

M3 - Zeitschriftenaufsätze

VL - 15

SP - 537

EP - 550

JO - Zeitschrift für Internationale Strafrechtsdogmatik

JF - Zeitschrift für Internationale Strafrechtsdogmatik

SN - 1863-6470

IS - 12

ER -