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International Law, the EU, and the Criminal Treatment of Migrants in Libya

Teriza Mir | Middle East and North Africa Fellow

On April 25, 2023, 57 bodies washed up on the Libyan coastline after two boats bound for Europe sunk in the Mediterranean Sea. Libya is a key departure point for many refugees in Africa seeking asylum in Europe. However, the appalling conditions migrants endure while waiting to be smuggled out are akin to hell. Although their suffering is well-documented, rising anti-migration sentiment in Europe has seen hundreds of thousands of people either turned back, disappeared, or killed before reaching safe harbour.

The infamous Central Mediterranean Route (CMR) begins in North Africa and terminates in Italy and Malta. It is known as the world's 'most dangerous migration route'. As of May 27, 2023, 5,784 people have attempted the treacherous crossing this year alone, with 975 declared either dead or missing.

On February 2, a controversial Memorandum of Understanding (MoU) between Libya and Italy was renewed for the second time. Under this agreement, Italy provides funding and training materials to the Libyan Coast Guard, enabling them to intercept boats of refugees heading to Europe and forcibly return them to Libya. Despite copious reporting of crimes against humanity committed against those living in Libyan transitory detention centres, the deal has now entered its sixth year. Over this time, funds from the EU's Trust Fund for Africa have expanded Libya's border control infrastructure. Consequently, in renewing the MoU, both Italy and the EU have extended their complicity in the inhumane treatment of refugees in Libya.

In 2008, Italy and Libya signed the Treaty of Friendship, Partnership and Cooperation, which endorsed a practice known as 'pushbacks' where Italian vessels would intercept migrant boats and return them to Libya. Pushbacks, also known as refoulement, are expressly forbidden in the 1951 UN Refugee Convention. Italy, along with fifteen other European states that helped to draft this treaty, is unreservedly party to it. Libya is not party to this treaty, though it is bound to the 1969 Organisation of African Unity Refugee Convention.

In 2012, the European Court of Human Rights held that Italy had breached its human rights obligations by contravening the non-refoulement principle of the 1951 Convention. Thus began a brief period of redemption. Between 2013 and 2014, the Italian government ran Operation Mare Nostrum: a search and rescue mission that saved an estimated 91,000 lives along the CMR, and resettled these migrants in continental Europe. However, calls to restrict migration and a lack of funding from any other European country saw the replacement of Operation Mare Nostrum with a series of policies focused instead on border surveillance and enforcement, as well as anti-trafficking and anti-smuggling.

In 2017, Italy and Libya signed the MoU, which strongly echoed their 2008 treaty. Upon its first automatic renewal in 2020, the Council of Europe's Human Rights Commissioner, Dunja Mijatović, said, "I regret that the Italian authorities have not scrapped that agreement or – as a minimum – changed its terms." That same year, a similar MoU was signed between Libya and Malta.

The effect of the Italy-Libya MoU has been devastating for migrants. In April 2019, the designated Libyan Search and Rescue Zone was left unmonitored for three weeks while Libyan Coast Guard vessels were commandeered for use in the nation's second civil war. Those crossing the CMR now face a higher risk of death, with 1 in 20 people dying or going missing in 2022. There have also been reports of physical abuse against migrants whilst being rescued by the Libyan Coast Guard, and a lack of any monitoring mechanism to ensure human rights obligations are being upheld.

Beyond merely shirking responsibility onto the Libyan Coast Guard, Italian and Maltese authorities have also adopted a 'hands off' approach towards distressed migrant boats in the Mediterranean. This means ordering ships belonging to other countries or NGOs to stand down and harassing them if they do not obey. Most commonly, boats that do rescue migrants are denied access to Italian and Maltese ports for disembarkation. Despite this policy, NGOs have been credited with saving thousands of lives along the CMR since 2017.

Multiple avenues exist in international law to hold Italy, Malta, and the EU accountable for failing to assist distressed migrants at sea, and for complicity in human rights abuses in Libya. Calls for the International Criminal Court to investigate the EU and its member states for complicity in crimes against humanity originated in 2019 and were renewed in 2021. If successful, the Court could hold individual persons in these countries criminally responsible for these crimes.

In April 2020, a complaint was filed with the European Court of Auditors regarding the EU-backed policy. While this Court is not judicial, it can investigate the spending of EU funds and encourage political action where necessary. In the same year, two NGOs submitted a formal complaint to the UN Human Rights Council (UNHRC) regarding Italy's, Malta's, and Libya's roles in violating the right to leave Libya.

From June 2020 to January 2023, a UNHRC Independent Fact Finding Mission investigated allegations of human rights violations in Libya. In 2021, it called for Libya, the EU, and its member states, to review their search and rescue policies in the Mediterranean. The mission posited that failure to assist people in distress at sea may be a crime against humanity, and therefore justiciable by the ICC.

Holding any nation or supranational union accountable will not stop human rights abuses from occurring. NGO Lawyers for Justice in Libya proposes that the ideal solution and best use of EU resources is to balance training the Libyan Coast Guard with creating safe and legal pathways for refugee resettlement directly from their countries of origin. This would decrease the pull factor to Libya and reduce the strain on Italy and Malta as the most frequent European entry points for African migrants. Above all, the dignity of the lives of people in Africa fleeing violence and seeking a better life abroad must be respected. Those who violate or allow the contravention of this fundamental human right must be held accountable.

Teriza Mir is the Middle East and North Africa Fellow at Young Australians in International Affairs.


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