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By Anja Palm*, Istituto Affari Internazionali

 

On 2 February 2017 a Memorandum of Understanding (English Version**) on development cooperation, illegal immigration, human trafficking, fuel smuggling and reinforcement of border security (hereafter ‘memorandum’ or ‘MoU’), was signed between the Italian Prime Minister Gentiloni and Fayez al-Serraj, Head of the UN-backed Libyan Government of National Accord.

Cooperation with Libya on migration and border control is not a new policy choice for Italy: during the 2000s numerous agreements focused on curbing migratory flows and enhancing readmission were concluded with the then Gaddafi regime. This partnership was nevertheless suspended in 2012 as a result of both the collapse of the Libyan government due to the outbreak of the civil war and the ECtHR judgment Hirsi Jamaa, which condemned Italy for violating the principle of non-refoulement and the prohibition of collective expulsions.

Increasing crossings through the Central Mediterranean, which represent the final step for Sub-Saharan migratory flows transiting primarily through Niger and Libya, have led to the emergence of a policy approach aimed at reducing crossings from Libya to Italy at any cost, dictated by the need to give quick answers to the mounting uneasiness in the public opinion. If the memorandum represents its baseline, such policy has been expanded as to include dialogues with numerous Libyan actors ranging from institutional players to local tribes, mayors, entrepreneurs and even contending actors. This approach has further been reinforced by both multilateral and bilateral dialogues with other countries situated along the main migratory routes such as Tunisia and Niger.

European institutions and key Member States have repeatedly praised Italy for its proactive role in Africa, most recently in occasion of the Paris summit held on 28 August 2017. As explained elsewhere, this policy, if not counterbalanced with the opening of legal access channels for persons in need of international protection, challenges international and European law, a reality which the funders and outsourcers of those actions cannot easily ignore.

The content of the Memorandum

The memorandum has been presented as the first chapter in a new era of cooperation on irregular migration and border control between Italy and Libya. The 3-page-long document is structured in a preamble and an operative section, the latter being composed of 8 articles. Articles 1 and 2 outline the obligations of the parties, Article 3 mentions the establishment of a mixed committee to implement the MoU, Article 4 concerns the financing, Article 5 the applicable legal framework, and Articles 6 to 8 technical aspects such as the amendment procedure, the settlement of disputes and the duration of the agreement (3 years). Overall, the memorandum adopts very generic (and sometimes legally imprecise) language and thus does not reveal much about the precise projects supported or the amount and origin of funds.

The most critical aspect of the MoU is reflected in the obligations it refers to in Articles 1 and 2. Article 1 outlines the key commitments of the partnership, that is to resume the cooperation between Italy and Libya on security and irregular migration according to past bilateral agreements, and Italy’s engagement to support and finance both development programmes and the technical and technological means for the fight against irregular migration. Article 2 further details some of the aspects mentioned in Article 1, namely, the completion of Libya’s southern land border control system; the financing of and the necessary adjustments to the local reception centres ‘in compliance with the relevant provisions’ and the supply of medicines and  necessary equipment to meet the health needs of the migrants detained there; the training of Libyan personnel working in such centres with a special focus on their ability to deal with clandestine immigration and human trafficking; support to international organisations operating in the migration field in Libya; and the investment in development programmes in the region, particularly in projects for job creation.

An unbalanced approach

The memorandum outlines two main objectives, namely the control of migratory flows and the support to the development of the region. Nevertheless, immediate actions clearly focus on reducing entries to Italy at any cost. Not only is the goal of the memorandum repeatedly stated to be the stemming of flows of transiting migrants through Libya to Europe, but the more detailed actions outlined in the MoU (as well as in subsequent deals and meetings) primarily focus on securitizing Libya’s borders and preventing departures. Indeed, if the memorandum were to be implemented according to its wording, migrants would be blocked and – most probably – pushed-back at the Libyan southern border, or would be intercepted by the Libyan coast guard upon departure to Europe by sea and transferred back to local reception camps pending repatriation or voluntary return to their countries of origin.

This, along with the substantive lack of reference to the international protection and human rights framework (the word ‘rights’ appears only once in the 8 articles), seems to turn the logic of shifting the burden of border and migration control to other countries (far away from the sight of the European public opinion and the reach of European lawyers and courts) into reality.

In this respect, a detail that stands out is the choice of vocabulary: the memorandum repeatedly refers to clandestine or illegal migrants. This could be interpreted as a (not so) hidden policy choice which aims at the creation of a rhetoric based on the association of different legal statuses to a single category of persons not having the right to enter the EU territory. Indeed, the outsourcing of migration management as a whole necessarily also implies the outsourcing of asylum management, and this in a country that does not recognize the right to asylum, nor has the institutional capacity and experience to process international protection claims.

Border control and migration management are understandable objectives, particularly in the current European political context which prioritizes security concerns, and indeed fundamental to ensure internal security and stability. However, this cannot come at the cost of fundamental rights. Flows from Libya are notoriously mixed, being composed of people holding, according to the EU and international framework, different sets of rights. The differentiation of legal statuses currently becomes indeed relevant only once EU territory has been accessed irregularly, there being no instrument enabling individual assessments beforehand.

Another problematic aspect is represented by the local reception centres the Italian party promises to finance, which are described as ‘temporary reception centres under the exclusive control of the Libyan Ministry of Interiors to host the clandestine migrants awaiting repatriation or voluntary return to the country of origin’. Worryingly, whilst funds, training to the Libyan personnel and medical assistance are promised (and have, to a certain extent, already been delivered) the human rights records of these sites is not even mentioned. Neither is there any reference to measures capable of mitigating the risk of violations (such as access for lawyers, NGOs, international organisations or even for Italian officers).

From bad to worse? A poor replication of the EU-Turkey deal

At first sight it might be said that the memorandum follows the lines of the EU-Turkey deal, being a kind of agreement aimed at externalising migration control to a country representing a crucial ‘access gate’ to Europe. However, it must be highlighted how, under many viewpoints, it embodies a bad replication of its predecessor.

Firstly, the memorandum foresees no resettlement component, the only real innovative aspect that the EU-Turkey deal was carrying. Indeed, not only in the whole MoU are the terms ‘refugee’, ‘legal migration’ or ‘access channels’ never mentioned, but the parties seem to voluntarily ignore all dissimilarity in the legal status of people on the move, assimilating all of them in the undifferentiated  category of illegal (as narrated in the MoU) migrants.

Secondly, there is even less clarity as to the origin and destination of funds. Article 4 states that ‘the Italian party will finance the projects mentioned in the memorandum or proposed by the mixed committee mentioned in Article 3 without any additional burden for Italy’s budget’ as well as ‘making use of available EU funds’. The main source (additionally to the EU Trust Fund for Africa) will therefore probably be the Italian Fund for Africa, a €200 million instrument approved by the 2017 budget act and which, according to Foreign Minister Alfano, has the main goal of ‘stopping irregular migration flows’, as ‘the reinforcement of third states’ borders indirectly reinforces the EU’s borders’. There is consequently some scepticism as to how far these funds will be used to support development programmes. A detailed mapping of precise amounts, projects and implementing partners as is the case for the EU Facility for Refugees in Turkey would be strongly needed, also to counter accusations of funds being channeled to smugglers for stopping boats from leaving Libya’s shores.

Thirdly, both the political and the human rights situation in Libya is much more preoccupying than the one in Turkey at the time of adoption of the EU-Turkey declaration. This is particularly true concerning the complete lack of any national framework regulating migrant’s rights, contributing to great legal insecurity and arbitrariness. The generic reference in Article 5 that ‘the parties commit to the interpretation and application of the present memorandum in accordance with their international obligations and the human rights agreements they are signatories of’, is clearly insufficient. Libya is a heavily unstable country and authoritative reports certify the systematic violations of (migrant’s) fundamental rights (see OHCHR, Amnesty International, Human Rights Watch). Adding to this, Libya is not a signatory of the 1951 Refugee Convention, nor is there any national protection framework to ensure that possible beneficiaries of international protection are not refouled to their countries of origin.

Out of sight – relieved of responsibility?

Outsourcing the management of migratory flows which also include potential beneficiaries of international protection to a third State results in the circumvention of the duty to safeguard those in need of protection and in a shift of responsibility to a third party in order to not face liability before European courts (see Giuffré, Camilli). As noted above, Libya is not a signatory of the 1951 Refugee Convention, nor has anything changed regarding the human rights concerns mentioned in the Hirsi judgment, except maybe that they have worsened. Notwithstanding Italy’s complete awareness of this situation, not only is there no positive conditionality in the agreement (demanding an improvement of the human rights conditions and the recognition of refugee status) but, on the contrary, the agreement even explicitly identifies voluntary and forcible returns as a fundamental objective of the cooperation. In a system that does not assess refugee claims, this will inevitably result in a high record of refoulement or chain-refoulement put in practice by Libyan authorities.

But these actions do not have to necessarily go without any liability. Firstly, concerning Libya it must be recalled that the principle of non-refoulement is applicable even if a country is not a signatory of the Refugee Convention. It is embodied in, or derived from, relevant multilateral treaties ratified by Libya, such as the 1984 UN Convention Against Torture and the 1966 UN Covenant on Civil and Political Rights. Additionally, many authors affirm that non-refoulement is a principle recognized in customary international law and, according to some of them, is even part of ius cogens. Secondly, even admitting that it would not be the Italian coast guard itself, neither Frontex to engage in the physical push-backs and returns, the actions of the Libyan coast and border guard, being trained, equipped and funded by the Italian counterpart, could still engage Italy’s liability as assisting state, clearly without precluding Libya’s responsibility. The conditions spelled out in Article 16 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, could be fulfilled as there is clear knowledge and consensus on Italy’s side (if not even an encouragement) regarding the actions to be taken by Libya, as well as those acts resulting in breaches of international refugee and human rights obligations that Italy is bound to respect.

Nevertheless, even if such an assessment might be reached in theory, there are a number of challenges that make it more difficult in practice: the act of complicity is an exceptional assessment in international jurisprudence and it is often difficult to find a court possessed of the jurisdiction over both states involved. An additional difficulty is represented by the current lack of an effective state authority in Libya and the high number of actors involved in the possibly wrongful acts, leaving the question open as to who could be recognized as representative of the state committing the breach. According to the European Union Agency for Fundamental Rights, responsibility can nevertheless not be fully excluded, and depends on the ‘exercise of de jure or de facto control over a person or the degree of leverage exercised by the EU Member State on the conduct of the third country’.

What future for cooperation on migration control in Africa?

Whilst Europe is celebrating the success of the reduction of incoming flows (from 21.294 in August 2016 to 3.914 in August 2017 according to the Italian Interior Ministry), the humanitarian consequences seem not to be of much interest to policy makers. But even if Europe follows in shutting its eyes and promoting a policy with high human costs and possibly amounting to violations of international law, the implementation of such approach requires reliable counterparts, as is hardly the case in Libya.

Indeed, whilst the Libyan Supreme Court just recently reversed the Tripoli Court of Appeal decision to temporarily suspend the effects of the Italian-Libyan MoU, the conditions on the ground still leave some doubts as to the effectiveness and sustainability of migration cooperation with Libya. Not only is Fayez al-Serraj incapable of ensuring sufficient territorial and executive control outside the capital, but the fragmentation and the presence of conflicting actors in the area does not allow a long-term assessment of the feasibility of such policies. Among others, the National Tebu Assembly recently rejected the outcome of the Rome agreement between Libyan tribes stating that the Tebu signatories were not truly representative of the community and that Italy was interfering in Libyan internal affairs. The genuine desire of tribes and other local actors to close smuggling routes is further questionable, given their strong involvement in this business that has proved to be increasingly profitable for them, generating up to $1.5 billion per year according to estimates by the International Crisis Group.

It is further fundamental to stress how the choice of shifting the borders further South alone will not represent the solution of all problems. Alternative irregular routes will open (as is already being reported) entailing an even more dangerous journey for migrants and consequently higher profits for smugglers. This crisis-led approach further has the risk of nurturing a climate of conflict between the two shores of the Mediterranean that will leave everyone worse off in the long term (ACAPS: Refugee/Migrant crisis in Europe: Scenario 3).

Amidst the current challenges, the silver lining might be found in the joint statement released following the meeting between Italy, Germany, Spain, France, Chad, Libya, Niger and HRVP Mogherini in Paris on 28 August 2017. The strong focus on migrant’s rights and international protection obligations as well as the linguistic choices might indeed indicate the start of a new chapter in EU-Africa cooperation, as is claimed in the document. Particularly of interest is the emphasis put on the creation of legal pathways or ‘protection missions’ as defined in the non-paper, although so far limited only to the provision of increased resettlement efforts, as already proposed by the Commission this July (37.750 places for 2018).

It is nevertheless to be hoped that the increasing talks about setting up external processing centers will fuel an analysis of the legal and moral obligations as well as limitations that emerge in dealing with mixed migratory flows in third countries. The current approach which puts human rights and international protection aspects only at a second stage, conditioned to the reduction of migratory flows, has to be inverted. Times are more than mature to finally recall that the respect of human rights should be the foremost preoccupation when shaping any policy both when acting inside and outside our borders.

* The author first submitted the blog post on 16 May 2017 and last updated it on 13 September 2017.

** The Odysseus Omnia Team thanks all the contributors of the English translation of  the Memorandum of Understanding.