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By Achilles Skordas, Professor of International Law, University of Copenhagen

The discussion on the restrictive migration management policies of the European Union (EU) and its Member States (MS) has so far focused on the potential violation of the primary rules of international law that determine the conduct of subjects of international law. The question of applicability of the secondary rules of international responsibility that provide for the consequences of the commitment of a wrongful act has attracted less attention. The main question in the current context is whether the cooperation of the EU and its MS with the Libyan coastguard and militias with the view of stemming irregular migration flows to Europe generates international responsibility for the above actors. More specifically, it is asked whether there is an autonomous basis in the law of international responsibility for holding the EU and its the MS responsible for the violations of human rights occurring in Libya, even if they do not exercise directly jurisdiction over migrants. Three aspects of this theme will be developed here: first, the nature and scope of the cooperation of the EU and its MS, in particular Italy, with the Libyan authorities, coastguard and militias in view of restricting the access of migrants to the EU; second, the extent of human rights violations of migrants in Libya; and third, the alleged complicity and responsibility of the EU and MS for the violations of these rights.

I. Cooperation with the Libyan authorities, coastguard and militias

The cooperation with the Libyan coastguard is primarily based on the amended Council Decision of 2015 establishing the Operation EUNAVFOR MED Operation Sophia. The core element of the original mission was to contribute ‘to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean’. A year later, the Council added new responsibilities to EUNAVFOR MED, including the capacity-building and training of the Libyan coastguard and navy. The mandate was renewed in 2017 and is valid until the end of 2018.

Meanwhile, the EU and its Member States have been supporting post-conflict peace-building in Libya. On 2 February 2017, Italy and Libya signed a Memorandum of Understanding (MoU) with particular significance for the policies of migration management (see post relating to this MoU on this blog here). In the MoU, Libya agreed to take measures for stemming the migrant flows to Europe and Italy promised to support ‘development programs in the regions affected by illegal immigration’. Moreover, Italy agreed ‘to provide technical and technological support to the Libyan institutions in charge of the fight against illegal immigration, and that are represented by the border guard and the coast guard of the Ministry of Defence and by the competent bodies and departments of the Ministry of Home Affairs’ (Art. 1 MoU). Libya would host the migrants temporarily in camps until their return to their countries of origin and Italy would train personnel working in the hosting centers (Art. 2.3, and Preamble of the MoU). Furthermore, Italy would start ‘development programs through adequate job creation initiatives within the Libyan regions affected by illegal immigration phenomena, human trafficking and fuel smuggling as “income replacement” ‘(Art. 2.6 MoU).

The next day after the signing of the MoU, on 3 February 2017, the European Council adopted the Malta Declaration, emphasizing that ‘in Libya, capacity building is key for the authorities to acquire control over the land and sea borders and to combat transit and smuggling activities.’ The Council also decided to support ‘where possible the development of local communities in Libya, especially in coastal areas and at Libyan land borders on the migratory routes, to improve their socio-economic situation and enhance their resilience as host communities’. It also encouraged ‘efforts and initiatives from individual Member States directly engaged with Libya’ and welcomed the MoU.

The purposes of the MoU and the Malta Declaration were confirmed during the Paris meeting of the Heads of State and Government of France, Germany, Italy, Spain, the High Representative of the EU for Foreign Affairs and Security Policy, Niger, Chad, and the Chairman of the Presidential Council of Libya. In a Joint Statement on ‘Addressing the Challenge of Migration’ of 28 August 2017, they agreed to pursue the return of irregular migrants to the countries of origin, in particular to Niger and Chad. The Joint Statement expressed the will of the participants  ‘to improve human rights protection and living conditions for migrants in Libya …. on the basis of good standards treatment of migrants in the country, in particular for those who are rescued by the Libyan coast guards’ (Art. 2.3-4). According to the Statement, ‘the Italian project to cooperate with 14 communities along migration routes in Libya is much welcomed in this respect, as are projects financed by the EU Emergency Trust Fund for Africa’ (Art. 2.3-2).

There are three steps in the EU policy towards Libya. First, support to the Libyan coastguard in order to exercise effective control over its territorial sea and beyond. Italy has even decided to send a limited naval mission in the Libyan territorial sea to cooperate with the Libyan coast guard upon request of the Libyan authorities (see here, here and here).

Second, progressive disengagement of the EU and the MS from involvement in Search and Rescue operations on the high seas. In that way, the Union and the MS would not exercise jurisdiction over migrants, under the terms of the Hirsi Jamaa Judgment of the European Court of Human Rights. A restrictive code of conduct for NGOs engaged in search and rescue operations, issued by the Italian authorities, is part of the policy of deterring migrants from undertaking the trip to Europe.

Third, financial support to the fourteen Libyan communities across the ‘smuggling road’ and the ‘income replacement’ are expected to destroy the smuggling business. The big question here is how these funds would be channeled to these communities in the absence of an effective central authority. There is some justified skepticism on whether such projects could be realistically implemented without involving militias. However, there is considerable ambiguity and lack of clarity on this aspect of the problem (see here and here).

II. Violations of human rights of migrants in Libya

On the contrary, the state of migrants’ human rights in Libya is sufficiently clear. According to the EUBAM Libya Initial Mapping Report of January 2017, about 4,000 migrants, most of them from West Africa, were detained in Libya. The conditions in the detention centers (DCs) were described by the Report as follows:

“There are reports about these DCs which describe gross human rights violations and extreme abuse and mishandling of detainees, including sexual abuse, slavery, forced prostitution, torture and maltreatment. Detainees do not have access to proper medical facilities. The trafficking of migrants for organs has also been reported.”

The EUBAM Report also describes the lack of authority and control over the militias and other security bodies. The Ministry of Defense, which is also in charge of the coastguards and port security forces, ‘has little or no control over the Armed Forces’, in the formulation of the Report. The border guards in the South are also linked with the local militias, and the Ministry of Interior is infiltrated by ‘militias and religiously motivated stakeholders’.

The violation of migrants’ rights has been confirmed by other official sources. The Report of the UN Secretary-General on the United Nations Support Mission in Libya (UNSMIL) from 1 December 2016, described as follows the situation of migrants in Libya:

“Migrants were detained arbitrarily in detention centres run by the Department for Combating Illegal Migration, and in other forms of informal detention under the control of armed groups and criminal smuggling and trafficking networks. Migrants detained in centres operated by the Department did not go through any legal process, and there was no oversight by judicial authorities. Conditions in the centres were inhuman, with people held in warehouses in appalling sanitary conditions, with poor ventilation and extremely limited access to light and water. In some detention centres, migrants suffered from severe malnutrition, and UNSMIL received numerous and consistent reports of torture, including beatings and sexual violence, as well as forced labour by armed groups with access to the centres.”

On 11 April 2017, the IOM revealed the existence of ‘slave markets’ in Libya, and the Report of the UN Secretary-General from 22. August 2017 repeated this information stating also that ‘migrants continued to be subjected by smugglers, traffickers, members of armed groups and security forces to extreme violence’. It was not until the CNN showed concrete evidence of the slave trade that the global public was alarmed. At the same time, the UN Human Rights Commissioner for Human Rights Zeid Ra’ad Al Hussein stated that the ‘suffering of migrants detained in Libya [was] an outrage to the conscience of humanity’ and that the ‘increasing interventions of the EU and its MS [had] done nothing so far to reduce the level of abuses suffered by migrants.” The Human Rights Commissioner stressed that the situation of migrants had rapidly deteriorated.

In its recent report on ‘Libya’s Dark Web of Collusion’ of 11 December 2017, Amnesty International took an extra step by stating that ‘European governments, and Italy in particular, are breaching their international legal obligations and becoming complicit in such violations, sharing with Libya the responsibility’.

III. International responsibility for the EU and the MS?

The violation of human rights of migrants in Libya is a matter of fact. The main issue here is whether these violations generate the international responsibility of the Union and its MS, in particular Italy. The answer to this question requires the discussion of a variety of legal factors and potential legal bases and cannot be answered here. However, it is possible to discuss the core international law issue whether the migration management policies of the EU and its MS and their support to Libya amount to ‘assistance’ in the commitment of wrongful acts under the law of international responsibility of States and international organizations.

Article 16 of the ILC Articles on ‘Responsibility of States for internationally wrongful acts’, as included in the UN General Assembly resolution 56/83, reads as follows:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State.

The same wording was adopted by Article 14 of the ILC Articles on ‘Responsibility of international organizations’ (UNGA res. 66/100).

There are numerous legal issues concerning the interpretation of the above provisions. First, it is asked whether the assisting State or international organization incurs responsibility only for wrongful acts of another State or a de facto regime, or also for acts of militias and other similar armed groups. Second, the status of some of these groups perpetrating the atrocities as de facto or de jure organs of the Libyan State, or as criminal gangs or insurgents, should be clarified. Third, it should be discussed whether the legal basis of the alleged responsibility of the assisting State is to be sought only in the secondary rules of international responsibility, or whether primary rules of international law relating to complicity in the commitment of war crimes or crimes against humanity are also relevant. In fact, the distinction between primary and secondary rules is not always obvious. Notwithstanding these issues, the fundamental legal question that will be presented in some more detail here is the meaning of ‘knowledge of the circumstances of the internationally wrongful act’.

The Commentary of the ILC on Art. 16 defines the ‘knowledge of the circumstances’ by two cumulative conditions. First, the assisting State must have knowledge of the facts linked to the commitment of the wrongful act. According to the Commentary, when a State engages in cooperative relations of economic or financial nature with another State it does not usually assume that it assists the commitment of acts that are inconsistent with international law.

Second, even knowledge of the facts is not sufficient for establishing the responsibility of the assisting State, because the ILC added a second element that can be understood as the ‘purpose’. Responsibility can only be established if the assisting State acts ‘in view to facilitating the commission of the wrongful act’. According to the Commentary, ‘a State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State’. Therefore, following this line of thought, it has to be proven that the Union and the MS had the intention to facilitate the commitment of torture and other similar crimes by Libya or by the Libyan militias and this has obviously not been the case.

It has also been argued that ‘purpose’ may exist even in the sense of ‘awareness’ that wrongful acts would happen in the ‘ordinary course of events’ under the standards of international criminal law (see here). In this context, though, the International Court of Justice followed a restrictive interpretation of intent in Article 16 of the ILC Articles on State Responsibility in the case on the Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) of 2007. The Court ruled that ‘there [was] no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide[could] not be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator (para 412 of the judgment).’Therefore, the Union and the MS would engage their international responsibility for assisting Libya only if they were at least aware that it had specific intent to torture, and still offered assistance. The Joint Statement on the Migrant Situation in Libya, issued by the African Union-European Union Summit of 29-30 November 2017 constitutes an outright condemnation of the human rights abuses that occurred in that country and is therefore an important indication that there is neither complicity nor intent by the Union, its MS and Libya to facilitate or commit such crimes.

At this point, a broader picture of the Union’s actions and of the interpretation of Article 16 of the above ILC Articles might emerge. The main purpose of the cooperation of the EU and the MS with Libya is to manage the migration flows, which is a legitimate objective. The collapse of Libyan statehood has been one of the main factors that facilitated the exodus of migrants towards Europe and it is reasonable that the Union would try to re-establish the capacity of Libya to exercise effective control over its land and maritime borders. This objective was also consistent with the policies of the United Nations for the restoration of peace in Libya after the 2011 war. In fact, an expansive interpretation of Article 16 of the ILC Articles establishing the international responsibility of third States for aiding or assisting the perpetrator would make international cooperation risky (see Georg Nolte/Helmut Philip Aust, Equivocal Helpers – Complicit States, Mixed Messages and International Law, ICLQ 58 (2009), 1-30). In particular, it would complicate post-conflict peace-building, because it would deter States from getting involved in the process of restoration of peace during the fractious, troubled and uncertain period of transition, where international support is necessary more than ever.

Nevertheless, this is not yet the end of the discussion. Article 41 of the ILC Articles on State Responsibility (Article 42 ILC Articles on the Responsibility of International Organizations) introduces a sharper measure in instances of assistance in the commitment of serious violations of peremptory norms of general international law (jus cogens). In such cases, ‘no State (or international organization) [should]  … render aid or assistance in maintaining’ a situation created by the violation of the above norms (see Nolte/Aust, ibid., at pp. 16-18). Whether this provision is relevant or applicable in the situation in Libya, cannot be answered here, because it would involve a detailed discussion on the facts.

Moreover, there are still more dimensions in the ambiguity surrounding the alleged responsibility of the Union and its MS. The secondary rules of State Responsibility under the ILC Articles may be displaced by special rules or legal regimes according to the rule lex specialis derogate legi generali, or applied simultaneously with such rules (Article 55 ILC Articles on State Responsibility, and Article 64 of the ILC Articles on the Responsibility of International Organizations). The discussion should therefore also involve the responsibility of the Union under European law, as well as the jurisdiction and responsibility of the contracting parties to the European Convention on Human Rights.

Europe is increasingly behaving as a realist power as a consequence of systemic crises and risks in its neighborhood. For this reason, it is necessary to conduct a discussion involving both law and geopolitics. Furthermore, the conceptualisation, interpretation and application of international law, EU law and human rights law in the area of migration have consequences for many other international and transnational activities and interests. In the area of international responsibility of States and international organisations, one should be particularly mindful of the broader consequences the interpretative exercise might have.