The Italian- Libya agreement and its relation with non-refoulement of refugees

By Reza Majd, on 28 March 2018

Written by: Nidhi Singh

Disclaimer: This blog post solely reflects the opinion of the author and should not be taken to represent the general views of IPPR’s management team or those of fellow authors.

 

“The refugee crisis.” It’s one of those phrases that really catches your attention. You can barely turn a page in a newspaper or look at the television anymore without there being some reference to it. But the phrase itself is a bit of a misnomer since it does not address who are the people affected by such a crisisWhile the existence of the crisis is now widely accepted by states and the international media, it is difficult to ascertain if the crisis in question relates to the refugees, or the countries which receive them. In most contexts I suppose, both are at stake.

February 2018 marked the one-year anniversary of the The agreement was most famously entered into to ‘cut off the Mediterranean route’ for refugees stemming from Africa, by detaining them in Libya so they could not reach the shores of Italy and subsequently enter Europe. To this end, Italy entered into an agreement with the now fragmented government of Libya (all three of them, and assorted militias) to provide them with boats, funding, and training to and detain all refugees coming from the African route. This push-back agreement was meant to cut back on the number of refugees entering Italy.

This agreement was lauded by the European Union as a whole and was then reinforced in the Turkey and Sudan Agreements. While the Turkish agreement is fairly well known, the push-back agreement for detaining of refugees in Sudan remains one of a kind, since the head of the state of Sudan, Omar al-Bashir, remains one of the few people to have received the distinction to be prosecuted for genocide, war crimes and crimes against humanity.

The reason for entering into such agreements can be found in the humanitarian principle underlying the refugee convention, which is unequivocal on the procedure for treatment of refugees. The only way to subvert it, would be to not allow any of the refugees to reach the shores of Italy in the first place. The governments of these countries (Sudan and Libya) are paid to catch boats leaving their shores and force the people back into their countries where they are detained.

The Libyan Agreement is not new, in fact back in 2008, a similar agreement existed between , which famously didn’t allow anyone to get into the detention centres to check conditions, . While this policy has faced major criticism from and NGOs, such as Amnesty International, the key domestic actors remain silent on the subject.

This, in part could be attributed to new , which is alleged to be massively hampers the work most can do , over 70% of the NGO’s have stopped work on this route. It was only the recent reports on the slave trading and auctions happening in Libyan refugee camps which has thrust the matter back into limelight. Meanwhile, the Italian MMarco Minniti has been lauded by the EU for reducing the flow of African migrants by 87%, but no official statements have been issued on the issues of rampant human rights abuses and slave trading of refugees occurring in Libya.

This now brings us to the question of attribution, in terms of the human rights violations committed in Libya, how much of the fault can be placed upon Italy and the EU? Italy has provided 220 million euros to Libya to stem the flow of people. In addition to this they have also provided boats and training to the Libyan coastguards, there have also been reports of Italian officials actually being on board these ships while they arrest boats and turn them back towards Libya. Here, the question of attribution is raised, should Italy be held responsible for the eventual situation of these migrants in Libya; arguably, they would not have suffered the abuse had it not been for Italy’s intervention in providing funding and training. If they are not to be held responsible, should a part of the responsibility them? How does this relate to refugees from countries such as Eritrea, who have almost a 100% recognition rate in Europe and would have otherwise gained refugee status were it not for the push back agreement?

Unfortunately, none of these questions have had yet their moment in court due to a loophole in the jurisdiction clause for refugee dispute. While clear case law already exists prohibiting the violation of non-refoulement[4] i. The only case in this regard to be heard in the European Court of Human Rights was Hirsi Jamaa and Others v. Italy[5], which was only possible as the court somewhat relaxed its stance on jurisdiction. All previous cases brought forth on the matter of interception at sea were dismissed by the court for want of jurisdiction.[6]

So far, no one who has been detained has managed to go forward to Europe, most are detained in Libya itself, [7]

Despite the heavy criticism levelled towards Italy and the EU, there are no signs of suspension of the agreement. Furthermore, it seems that there is no mode of redress as there appears to be no mode of judicial intervention to force the parties into abeyance. This agreement is however one of the cornerstone issues in the upcoming elections in Italy, but whether this debate results in improving or regressing the situation, remains to be seen.

 

 

 

 

 

[1] Italy – Libya Memorandum of Understanding (2017), Available at https://www.asgi.it/wp-content/uploads/2017/02/ITALY-LIBYA-MEMORANDUM-02.02.2017.pdf, [Accessed 16 Feb. 2018].

[2] Libya: Smugglers holding refugees and migrants in deplorable conditions, say UN agencies. Available at https://refugeesmigrants.un.org/libya-smugglers-holding-refugees-and-migrants-deplorable-conditions-say-un-agencies [Accessed 16 Feb. 2018].

[3] Italy’s code of conduct for NGOs involved in migrant rescue. [online] Available at: http://www.euronews.com/2017/08/03/text-of-italys-code-of-conduct-for-ngos-involved-in-migrant-rescue [Accessed 16 Feb. 2018]; See also Code of conduct for NGOs involved in the rescue of migrants at sea: the ASGI comment. (2017). [online] ASGI. Available at: https://www.asgi.it/wp-content/uploads/2017/07/Draft-ASGI-Position-Paper_Final_EN.pdf [Accessed 16 Feb. 2018].

[4] The practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution. It is an obligation under the Refugee Convention, 1951 to which Italy is a party.

[5] Hirsi Jamaa and Others v. Italy, Application no. 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012, available at: http://www.refworld.org/cases,ECHR,4f4507942.html [accessed 16 February 2018]

[6] Ibid

[7] The migrant slave trade is booming in Libya. Why is the world ignoring it? | Ross Kemp. [online] the Guardian. Available at: https://www.theguardian.com/commentisfree/2017/feb/20/migrant-slave-trade-libya-europe [Accessed 16 Feb. 2018].