EU migration control: made by Gaddafi?

For over three years now, we have relied on Gaddafi and his state apparatus to keep asylum seekers and other migrants away from our European doors.

Amongst observers to the unravelling of the authoritarian government in Libya, there is a far-reaching consensus that a government that uses indiscriminate lethal force to retain power is, as the diplomatic phrasebook has it, “unacceptable”. Yet, over the past six years, it has been perfectly acceptable for EU governments to outsource its border protection to an authoritarian leader with a dismal human rights record. Today, we should not only recall the fact that it is EU member states that are importing some 80% of Libya’s total oil production. We, the citizens of the EU, should also be reminded that for over three years now, we have relied on Gaddafi and his state apparatus to keep asylum seekers and other migrants away from our doors.

The Gaddafi Government’s treatment of migrants has been known to undercut human rights for a long time. In the past week, matters have escalated further. Human rights groups have reported atrocious racist violence against Sub-Saharan Africans in Libya, including those removed there by Italy on the basis of bilateral agreements with Libya designed to combat illegal immigration to Europe. Eritrean, Somali, and Sudanese refugees, accused of being mercenaries on the payroll of the government are summarily executed with knives and machetes. Prisons have been randomly bombed, including a facility in Misratah, where a large proportion of the immigrants and asylum seekers intercepted in the attempt to reach European soil are currently being detained.

In the light of both the patent brutality of the Gaddafi government against its own citizens and such heinous violations of the fundamental human rights of migrants and refugees in the country, to what extent can Italy and the EU as a whole legitimately keep on justifying their bilateral cooperation on illegal immigration with Libya?

Background to murder

In June 2010, the EU Commission and Libya signed a Memorandum of Understanding undertaking to provide EU technical assistance and cooperation for the period from 2011 to 2013. The Migration Cooperation Agenda agreed in October with Libya aims to jointly address the challenge of managing migration and protecting refugees by offering 50 million Euros in aid to stop migrants and would-be refugees transiting through Libya on their way to Europe. Meanwhile, with the full support of the EU, Italy boasts a well-established relationship with Libya consecrated by two Protocols of technical and police cooperation dating back to December 2007 and aimed at combatting criminal organizations involved in the trafficking of human beings. A Partnership Treaty to strengthen mutual cooperation in various fields, signed on August 2008, and providing for a $5 billion compensation package putting an end to the dispute on claims arising from Italian colonialism, was made conditional upon a reinforcement of Libya’s commitment to the containment of illegal immigration by sea.

Bearing in mind that the costs of Libyan land borders and territorial waters’ patrols are jointly financed by Italy and the European Union, in the last two years hundreds of migrants and asylum seekers intercepted at sea have been driven back to Libya without any chance of setting foot on European soil to claim asylum. But in Libya, migrants and refugee are victims of discriminatory treatment of all kinds. They live in constant fear of being arrested, in which case they will be indefinitely confined in overcrowded detention centres where they are exploited, beaten, raped, and abused. Refugees who have no possibility of applying for asylum or accessing any other effective remedy, thereby run the risk of being forcibly returned to countries of origin where they may face persecution or torture. The inadequacy of Libya’s response to the flow of migrants and refugees is so infamous and well documented that it simply cannot be the case that the EU member states are only now starting to gain an insight into Libya’s doubtful track record in human rights, rule of law, and democracy.

Surely the Italian government is the real culprit in this story, as it has taken the lead role in pushing back asylum-seekers and other migrants to Libya? Isn’t this the case? Not so. European law requires member states to control the Union’s external border. If a state fails to do so, it is forced by law to take back asylum seekers and other immigrants that have migrated onwards to other EU countries. What Italy has done was only trying to pass the buck. So the reprehensible pact trading in migrants’ lives between Berlusconi’s and Gaddafi’s governments is but a logical consequence of reprehensible EU legislation in the form of the Dublin Regulation.

A few days ago, Gaddafi warned the EU that he would halt cooperation on illegal immigration if European governments took the side of protesters. What is to be done now?

First, suspend the Treaty

First, Gaddafi’s threat is a timely reminder that the EU and all its member states should no longer entrust border control to Gaddafi’s atrocious government. The Partnership Treaty between Italy and Libya expressly contains a human rights clause. On this basis, the Italian government must immediately suspend the Treaty.

Second, the Dublin Regulation establishes that the EU member state a person first arrived in is ultimately responsible for examining an asylum application. This puts excessive pressure on border countries, who prefer to pass the buck to unsafe non-European third countries through bilateral readmission agreements. Instead of indirectly pushing single member states to muster human rights violators in Northern Africa as their border control agents, the Dublin Regulation must be revised so that asylum seekers are no longer sent back to the country where they first entered the EU. This has been discussed in European fora for more than a decade, but to no avail. Gaddafi’s Libya is as good a reminder as any of the urgency to act on this matter, as EU cooperation with Algeria and Morocco on migration interception is still ongoing.

Third, no future migration control cooperation should be entered into with regimes that are likely to violate human rights. Existing agreements with other Northern African states should be suspended until they have been revised and reinforced with human rights conditionality clauses and impartial monitoring.

The EU as a project has engendered much talk of European values. Our cooperation with Libya, directly or by our Italian proxy, exposes this talk as hypocritical. If we want to be seen as serious about human rights, here is our chance to show our ability to learn from past mistakes.

 

About the authors

Gregor Noll is professor of international law, Faculty of Law, Lund University, Sweden.

Mariagiulia Giuffré is a doctoral candidate at the School of International Studies, University of Trento