In November the head of human rightsat the United Nations has lashed out at the EU’s migration policy towardsLibya.1UN human rights chief Zeid Ra’ad Al Hussein said forcing rescued people at seato return to Libya for detention was inhuman. “The suffering of migrantsdetained in Libya is an outrage to the conscience of humanity,” he said.The EU has helped broker deals withLibyan authorities as part of a broader plan to prevent people from leaving thecountry.
It includes, among others, training the Libyan coast guard to takemigrants and refugees from the sea and then returning them to the war-torncountry. Many but not all are then sent to detention centres, which are oftenruled by armed militia groups. The EU’s naval operation, Sophia, as of earlierthis month has trained some 142 Libyans. The Libyan coast guard has sinceintercepted almost 19,000 people since the start of the year until October. Thoseinterceptions were supposed to take place within Libyan territorial waters butcharity rescue boats say the coast guard is also operating in internationalwaters. German-based rescue ship Mission Lifeline said in late September theLibyan coast guard fired shots, boarded it, and demanded they handed over thepeople it had rescued at sea. Libya’s department of combatingillegal migration (DCIM) says some 19,900 people are held in detention centresas of early November.
Al Hussein’s statement was followedby the leaked footage released by CNN four days ago that appeared to showyouths from Niger and other sub-Saharan countries being sold to buyers forabout $400 (£300) at undisclosed locations in Libya. Many critics impose blame upon theEU’s deal and policy towards Libya that was jump-started by the draft actionplan carried out in mid-2000s between EU and Libya and later on by the dealwith Turkey to stop migrant crossing to Greece.Historical overviewSince the beginning of 2000s Libyahas become a key transit point into Europe by sea, with some 80,000 migrantsreaching Italy’s southern islands, and to a lesser extent Malta, each year. Themajority set off from Libya’s west coast by the border with Tunisia, and somefrom Tunisia itself. During ‘high season’, hundreds of migrants and refugees,the majority from Egypt and sub-Saharan Africa, arrived at the small Italiantourist island of Lampedusa each week, either directly or usually after beingcaught or rescued by the Italian authorities in the surrounding waters.
Therehave been times when as many as 600 people—men, women and children—have arrivedin Lampedusa overnight (BBC, 6 October 2004).In its December 2005 conclusions (2005b), the Councilof the European Union (the Council), the EU’s main decision-making body,renewed its long-standing commitment to a ‘balanced, global and coherentapproach’ to migration, notably by addressing its root causes, when it adoptedthe ‘Global Approach to Migration’.Since November 2004 the EU has also placed considerableemphasis on ‘externalizing’ matters of asylum and migration. By virtue of theirproximity to Europe, North African countries, in particular Libya and Morocco,are now at the forefront of this policy in which the EU seems to be trying topartially export the management of its borders and transfer itsresponsibilities on asylum to third countries. A central component is tostrengthen the capacity of third countries to manage migration, theoreticallyin the field of refugee protection as well as border control. One fiercelydebated aspect of this policy is a proposal (which has been, at leasttemporarily, abandoned) to process asylum claims outside the EU by establishing’transit processing centres’ in countries bordering the EU (e.g.
AmnestyInternational 2003).The rising numbers of arrivals in Italy and Malta fromLibya since around 2000 created an urgent desire within the EU to preventarrivals from this new point of departure, leading to the initiation ofcooperation between the EU and Libya on migration. This cooperation follows EUcooperation on migration with Libya’s North African neighbours, especiallyMorocco. As in many other settings, this has predominantly comprised twoelements: to secure the borders of the EU to prevent entry; and to return so-calledillegal migrants to their countries of origin, or at least to the country oftransit (European Parliament 2006).In other ways, the development of cooperation withLibya is exceptional after the country’s years of isolation from theinternational community and its relegation to the status of a pariah state.These factors, and specifically Libya’s lack of formal relations with the EUand its poor human rights record, intensified questions within the EU aboutwhat form, if any, such cooperation should take.
The European Parliament, forexample, has urged caution in proceeding with cooperation for fear Libya wouldfail to respect international human rights and humanitarian law.In response to calls from within the EU and fromconcerned NGOs to fully integrate human rights into any cooperation (e.g.Amnesty International 2005), and to widespread media coverage of deaths ofmigrants at sea, the EU has framed its cooperation with Libya in terms ofhumanitarian concerns and human rights principles.1 In June 2005 the Councilannounced the initiation of ‘an ad hoc dialogue’ and cooperation with Libya onmigration issues, which it said was guided by respect for human rights and aneed to prevent loss of life at sea.
In June 2005 the Council adopted conclusions on theinitiation of ‘an ad hoc dialogue’ and cooperation with Libya on migrationissues, in recognition that full cooperation could not take place in theabsence of formal relations between the two parties. The conclusions set outseveral measures for cooperation, which are mentioned below. Subsequently aJoint EU–Libya Action Plan on Migration was drafted, which had not been madepublic by the end of 2006. The absence of a final plan has not, however,prevented concrete steps from being taken, including the release of substantialfunds.
Bilateral cooperation between Libya and EU MemberStates, most importantly Italy, and at the level of the Council reveals anemphasis by the EU on border control and surveillance, including as the mainstrategy to prevent migration-related deaths. Over 2004 the Italian governmentprovided Libya with training and equipment, in particular to assist bordersurveillance and management, and plans were made to continue this support in2005 (European Commission 2005a: 63). The Italian Minister of the Interiorreportedly pledged to give Libya €15 million over a three-year period forborder control equipment (Corriere della Sera, 27 May 2005).
Although Libya and Italy have not signed a readmissionagreement, they appear to have reached a verbal agreement on returns, which hasallowed Italy to restrict entry into its territory by carrying out a series ofmass deportations. These have taken place since 2004 at times when largeinfluxes of foreign nationals arrive at Lampedusa. The manner in which thesedeportations are carried out violates Italy’s national and internationalobligations, particularly with regard to the right to seek asylum and theprinciple of non-refoulement (e.g.
FIDH 2005; European Parliament 2005b). Onarrival in Libya, some returnees have been detained without access to UNHCR andwhere they are at risk of torture or ill-treatment, while others have been sentback to their countries of origin, where they are at risk of serious humanrights violations. In many cases, the fate of those returned to their countryof origin is unknown. In addition, Italy has financed a programme of charterflights for the repatriation of so-called illegal immigrants from Libya back totheir countries of origin, returning 5,688 individuals over 2004 (EuropeanCommission 2005a: 61–62).
To facilitate returns, Italy has also financed theconstruction of a camp for illegal immigrants in northern Libya, apparently inline with European criteria; two additional camps in Kufra and Sebha, southernLibya, are envisaged (European Commission 2005a: 59).At the level of the Council, the June 2005 conclusionsreveal a similar emphasis on border-control measures despite the references tohuman rights and refugee protection. Although the Council briefly mentions theneed to find ways to prevent further loss of life at sea and build capacity onrefugee protection, border-control measures dominate.
The sharp rise in the number of migrants crossing theMediterranean from Turkey to Greece in 2015 threw the EU into disarray. InAugust 2015, German Chancellor Angela Merkel announced that Germany wouldprocess the asylum claims of people who had already transited through other EUcountries, opting out, albeit temporarily, of the ‘Dublin regulation’, whichmandates that asylum-seekers must claim asylum in the first EU country theyenter. But Hungary erected a razor-wire fence along parts of its borders withSerbia and Croatia to stop migrants entering its territory, and the border-freeSchengen agreement was suspended, as border controls were reintroduced betweenAustria, Hungary, Germany, Denmark and Sweden (and elsewhere). Pressure fromAustria and other EU states then led to other border closures along the westernBalkans route. And in March 2016, theEU, led by Germany, negotiated a deal with Turkey to stop migrants crossing toGreece. In exchange, the EU offered to take in some refugees from camps inTurkey, gave Turkey aid and promised visa liberalisation and to speed up thecountry’s accession negotiations. Thus Merkel’s policy to open Germany torefugees has been reversed.
The EU has sought to close its borders, especiallystopping migrants from taking the treacherous sea routes across theMediterranean in unseaworthy boats supplied by people-smugglers.EU-Libya Deal 2017Background: The number of migrants who have crossed theMediterranean – estimated at 1.7 million between 2014 and 20171 – is notunmanageable, given the EU’s population of 510 million. But the EU has found itpolitically difficult to share the burden. The Union has sought to ease thepressures on Italy and Greece, which as frontline states must process mostasylum claims, thanks to the Dublin rule. The EU has made increasing use of theEuropean Asylum Support Office (EASO), which has worked with the Greek andItalian authorities to set up ‘hotspots’ – processing centres for new arrivals.It has also created a ‘relocation mechanism’ to move asylum seekers from Greeceand Italy to other member-states, agreed by qualified majority in September2015.
This mechanism was passed despite opposition from Slovakia, Hungary,Romania, Finland and the Czech Republic, and the number of asylum-seekersrelocated under the scheme has been far lower than originally envisaged. ByOctober 2017, only 29,700 of the 98,000 foreseen by the plan had been relocatedfrom Italy and Greece to other member-states.2 Support for anti-immigrantparties has risen in many member-states, and Poland and Hungary’s increasinglyauthoritarian governments have vehemently opposed the relocation ofasylum-seekers, stoking anti-EU sentiment to serve their broader politicalagendas.The EU’s ad hoc response to the migration crisis isslowly being formalised into a strategy to curb migration by dealing directlywith countries outside the EU. Since the EU has found it difficult todistribute the administrative and political costs of migration among itsmember-states, policy-makers are increasingly focusing on foreign policy to tryto prevent migrants crossing the Mediterranean in the first place.
The idea isto stop people attempting to cross the Mediterranean at all. The most immediateproblem facing Italy in particular, and the EU in general, is the continuingpeople smuggling operation from Libya. The numbers are falling at the time ofwriting, thanks to controversial Italian and EU policies in Libya and in theMediterranean.
Since the Turkey deal, the EU’s efforts have continuedto focus on the political imperative of reducing the number of migrantsreaching the EU. Following the closure of the Balkan route and the March 2016EU-Turkey deal, the flow of arrivals in Greece from Turkey fell significantly.In the summer of 2016, the EU’s attention then turned to the centralMediterranean route, where the number of arrivals in Italy, almost entirelyembarking from Libya, was increasing.
Libya is not under the authority of asingle government, but has three competing centres of power: the UN backedGovernment of National Accord, the House of Representatives backed by GeneralKhalifa Haftar, and the Government of National Salvation. In turn, each ofthese actors is fragmented and does not have complete control over its ownforces. These divisions mean that Libya does not have a single coastguardadministered by the state, but a set of armed groups with differentallegiances. The EU has let Italy take the lead on negotiations with Libyanactors, following the template of the Turkey deal, for which Germany’sagreements were endorsed by the EU. In January 2017, Italy agreed to help theGovernment of National Accord police its own waters and train and equip itscoastguards.
On February 3rd 2017, the EU endorsed the deal. In April, the EUallocated €90 million to Libya to be spent on improving conditions in detentioncentres and fostering economic development.Some NGOs involved in search and rescue in theMediterranean stopped operating in Libyan waters after Italy negotiated a new’code of conduct’ in July 2017, which mandated that they refrain fromtransferring rescued people to other vessels, among other things. Other NGOswhich refused to sign, such as Médicins Sans Frontières, have stopped operatingin Libyan waters after they reported being threatened, and in some cases shotat, by Libya’s coastguard. This, as well as stepped-up EU and Italian supportfor the Libyan coast guard, has meant that more migrants attempting thecrossing are being intercepted by Libyan boats and taken back to Libya, ratherthan landing in Italy.
Upsides of the DealAt the same time, the EU has sought to co-operate withcountries of transit and origin in Africa and Asia to reduce the number ofmigrants reaching Libya. While efforts to negotiate readmission agreements withorigin countries have been very slow, the deals with Libya and other countriesalong the route appear to have reduced the numbers, at least at the time ofwriting. In the first half of 2017, the number of sea arrivals in Italy largelytracked the average in previous years, rising to around 24,000 per month duringthe summer, when the sea is calmer and the crossing less dangerous (see Chart1).
However, arrivals in July and August were sharply lower than a yearearlier.EU officials say that it is not only the deal withLibya that has reduced the number of boats. They point out that potentialmigrants are starting to appreciate how difficult the route has become.But it is not clear whether the numbers entering Libyahave slowed as migrants might be taking unmonitored, more dangerous routesacross the desert.
Officials also point out that 7,000 migrants have voluntarilyleft Libyan detention centres and returned to their country of origin since thestart of 2017, thanks to a repatriation programme conducted by theInternational Organisation for Migration (IOM).5 The EU also wants to set upscreening systems for migrants in countries to Libya’s south, such as Mali andNiger. The EU, in conjunction with the United Nations High Commissioner forRefugees (UNHCR), would set up processing centres in these countries to stopmigrants from travelling onwards. The centres would also deal with migrantstransferred from Libya, and the UN agency would identify those qualifying forasylum. But, so far, this plan remains embryonic.Downsides of the DealIt is likely that the EU’s and Italy’s deals withLibya are most responsible for the decline in the numbers: they fell soon afterItaly stepped up its support for the Libyan coastguard in the summer of 2017.But the deals also trample on the human rights of migrants being returned toLibya.
The militias that patrol the coast has been involved in people-smugglingthemselves. Many migrants have suffered horrificabuse, including forced labour, torture, and sexual violence at the hands ofsmugglers. The various Libyan authorities are unable to deal with migrantshumanely and effectively.
By the EU’s own admission, “conditions in the centreswhere migrants are held are unacceptable and fall short of international humanrights standards”. Unless conditions inLibyan detention centres are improved, the EU’s current approach will continueto put people’s safety at risk. The EU has no presence on the ground inLibya, and is leaving the work on improving the centres to the UNHCR and IOM.Both say that poor security in Libya prevents them from sending internationalstaff to Libya on a permanent basis: the centres are currently only managed byLibyan staff.ConclusionIn the light of recent developments, the UNcondemnation of the EU-Libya deal, the Slave Trade Market connection to thedrastic outcome of this deal, it is too soon to tell whether the Libyan dealwill hold.
The Libya case demonstrates the difficulties that the EU faces inits attempts to externalise its migration policy by signing agreements withcountries of origin and transit outside Europe. These difficulties largelyarise out of the fact that countries of origin and transit are often weakstates, which do not have enough border staff or infrastructure to controlmovements of people. Many officials in countries of transit are bribed bypeople-smuggler gangs which in some towns hold more power than state officials.Moreover, governments and voters in these countries do not necessarily want toreduce migration flows. Remittances from migrants living in richer countriesare a big source of revenue for many poorer countries.This does not stipulate that human rights standardsaren’t being implemented. In fact, it is in the name of human rights andinternational standards to be granted, that organisations such as IOM and UNHCRare currently part of the EU-Libya Migration Deal, “assisting” migrantsintercepted and taken back to Libya by the Libyan Coast Guard, before beingdeported to Niger or transferred to prisons.
However, as mentioned above theseorganizations are unable to carry out their mission due to the lack of securityin the host countries. The Solution here would be the iconic term”proportionality”, “balance” between the human rights obligations and interestsof State’s and their citizens on both sides. Only way for the EU and especiallyItaly to have clear conscious regarding the loss of life, inhuman treatment andetc. is to rethink its containment strategy, become more flexible and keep inmind the basic human rights while making the changes.1