The European Union’s hypocrisy in Libya
Training and blaming local authorities?

Recent reports on migrant slave markets in Libya led to a joint outcry amongst EU and AU leaders and to quick hypocritical reactions: vulnerable asylum seekers are (planned to be) returned to their home countries instead of being granted access to Europe. Most asylum seekers are held in detention centers in Libya where their rights are violated on a large scale. However, the causes for these violations including the selling of migrants and asylum seekers are to be found in Libyan law which criminalizes “illegal migration”, in the political chaotic situation amid the country as well as in the EU’s desire to decrease numbers of arrivals on European shores.

 

“The suffering of migrants detained in Libya is an outrage to the conscience of humanity. What was an already dire situation has now turned catastrophic”, the United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein denounced publicly. He refers to the sharp increase in the number of migrants and asylum seekers held in horrible conditions at detention facilities in Libya. Al Hussein based this statement on findings of a field visit of the UN human rights monitors to four detention centers in Tripoli where they interviewed detainees who had reached Libya on their way to European shores. The United Nations (UN) monitors were deeply shocked of the situation migrants and asylum seekers are exposed to: trafficking, kidnappings, torture, rape and other sexual violence, forced labor, exploitation, severe physical violence, starvation and other atrocities such as arbitrary killings.

Such reports are no news as human rights activists and NGOs such as Amnesty International and Human Rights Watch have been pointing out these grave crimes many times in the past and have demanded immediate actions from the world community. The reports on slave markets in Libya from April 2017 published by the International Organization for Migration (IOM) went unheard by the international community. The international community has turned a blind eye to Libyan migrant detention centers for more than a decade. Outcries seem to also remain unheard by the European Union (EU) until very recently. This is despite the fact that even official diplomatic correspondence between the German embassy in Niger and the foreign ministry in Berlin had already a year ago described the horrific situation of migrants and asylum seekers in Libyan refugee detention camps as “comparable to concentration camps”.

 

International outcry after reports on migrant slave markets in Libya

The turning point came in November 2017 with the release of a report and video footage by the CNN on the “migrant slave market”. The CNN’s video footage shows African migrants and asylum seekers being sold as slaves at auctions for as little as $400 each. The report claims that when detention facilities and warehouses become overcrowded, or when migrants and asylum seekers are unable to pay traffickers for the boat journey towards Italy, they are sold off as farm workers. Unscrupulous traffickers charge anything from $750 to $3,500 for a spot in a rubber boat from Libya to Italy – a high sum which many cannot afford, especially not if they are trying for the second or third time to cross the Mediterranean Sea to Europe.

The horrific news on the slave market led to expressions of outrage amongst the African Union (AU) and the EU, and to statements urging the Libyan authorities to do everything in their power to improve the conditions of African migrants and asylum seekers on their territory and to prosecute the perpetrators.

The footage and the public slave market reports were a wake-up call for the world’s politicians. This can be best seen in the fact that the conditions in Libyan detention camps and the selling of migrants for farm work suddenly became the prevailing topic of the African Union-European Union summit from 29-30 November 2017 in Abidjan, Cote d’Ivoire. The idea of the annual summit was to discuss the future of relationships between both organizations. This year’s summit was supposed to focus on solutions for providing investments for a better future for youth in Africa. However, this was relegated to a side issue by questions on migration. State leaders were forced to address the dire situation in Libya and take action which first led to the creation of a committee whose task is to investigate the accusation of slave-markets, and later to the announcement during the summit that some European and African states plan to launch “concrete military action” to rescue African migrants enslaved in Libya. The proposal, however, lacks to provide a detailed action plan on how to help the migrants and asylum seekers currently being detained. Instead of granting passage to a safe place in the EU, the evacuation plan proposes that most migrant and asylum seekers rescued would be taken back to their home countries. The announcement was followed by quick reactions as Libyan authorities in conjunction with the UN refugee agency (UNHCR) flew 240 Nigerians back to their country of origin while the summit was still underway.

Thus, the video on the Libyan slave market shocked the world, led to public outcry, debates and calls for prosecution as well as to a quick evacuation plan, but responses remain insufficient. The hopes of many migrants and asylum seekers stuck in Libyan detention camps will probably go down in disillusionment as evacuation for many means to return to the country they left in fear of persecution. It is doubtful that the horrific human rights situation in Libya will improve within a short time given the political and legal ongoing turmoil in this country.

 

Libyan detention policy and practice violate human rights and jus cogens norms

One of the reasons that have fostered the emergence of such slave markets is the fact that the Libyan coast guards — supported with funds and resources from the EU and especially with resources from Italy — have cracked down on boats of refugees and migrants trying to leave Libyan soil to Europe. This is due to the intense return efforts of the Libyan coast guards which have led to a sharp increase in the numbers of migrant and asylum seeker detainees labelled as “illegal immigrants” possibly causing prison sentencing in accordance with national law. This in turn leads to constantly overcrowded detention facilities and finally to the above mentioned arbitrary violence and killings to make room for new arrivals and to the sale of human beings for farm work.

Tens of thousands of migrants and asylum seekers, many of them from countries in West Africa but also Bangladesh, Somalia, Sudan and Eritrea who have tried to cross Libya en route to Europe, are detained in camps and warehouses on the Libyan coast. Currently, there are officially 34 of such facilities detailing around 20,000 migrants and asylums seekers according to the UN. The numbers most likely spike further since it is estimated that between 400,000 and 1 million migrants and asylum seekers are trapped in Libya at the moment, trying to leave for Europe.

It is thus likely that the situation of detainees will not improve but rather deteriorate if no effective and large-scale measures are implemented immediately. The “Expanded Response in Libya” action plan recently presented by UNCHR is a starting point, but has to be assessed as being nothing more than a mere drop in the ocean. The plan foresees to “identify refugees, asylum seekers and vulnerable cases in detention centers through regular visits and advocate for the release of a monthly average of 20”. Advocating for the release of 20 detainees on monthly basis is not enough given the fact that 20,000 people require such regular visits. A real impact on an international level is necessary such as the offering of safe and legal passage to Europe. Paying lip-service and deporting small numbers of victims back to their home country is not sufficient.

 

Domestic law allows detention for “illegal migration”

A transitional government after the removal of Muammar Al-Gaddafi failed to implement rule of law in the country, which has splintered into several fractions of militias, tribes, and gangs in Libya. Not only the political condition, also the legal situation in Libya plunged into turmoil and insecurity since the former government fled Tripoli in Summer of 2014 and the Libyan Supreme Court declared the Parliament unconstitutional.

The basis for the detention of these migrants and asylum seekers is Libyan law which punishes “illegal migration” with fines, detention, and expulsion. The key legal norms for such a detention are contained in two laws: Law No. 6 (1987) Regulating Entry, Residence and Exit of Foreign Nationals to/from Libya as amended by Law No. 2 (2004) and Law No. 19 (2010) on Combating Irregular Migration. Both laws criminalize and sanction violations of migration provisions with high fines, forced labor and imprisonment followed by expulsion after the termination of the time served there.

Moreover, Libyan law does not distinguish between migrants, refugees, victims of trafficking or others in need of international protection and the 2010 Libyan Law on Combating Irregular Migration (Law No. 19) allows for the indefinite detention in such cases. Under international human rights law detention policies that are not based on an individual assessment of the circumstances, but are misused as deterrent factor for “illegal migrants”, are illegal. Problematic in this context is that Libya is not a member state to the 1951 Convention on Refugees which defines the term “refugee” and outlines their rights as well as the legal obligations of states to protect them – especially the principle of non-refoulement. Even though Libya is a state party to the regional Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa which encompasses the definition of the term “refugee” and entails in its article II the non-refoulement principle, Libya has not incorporated the convention into domestic legislation.

Thus, the insufficient domestic laws on migration in combination with a lack of a migration framework in the country has given state and non-state actors control within migrant detention centers and favored the above mentioned widespread human rights violations.

 

Libyan detention policy violates international human rights law-including jus cogens norms

The described practice of incarceration of migrants and asylum seekers itself is a violation of human rights such as the right to a due and fair process (Art. 9 (2-5) ICCPR), the prohibition of arbitrary arrest and detention (Art. 9 (1) ICCPR), the detainees’ right to be treated with humanity and respect for their inherent dignity (Art. 10 (1) ICCPR). In addition to that, also the horrific conditions in these facilities violate human rights on a massive scale and even jus cogens norms such as the prohibition against torture and against slave trade.

These gross violations occur despite the fact that Libya has already in 1970 ratified the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR). Thus, the state is bound to granting due process and fair trial rights. Besides that, by also having ratified the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT), Libya is bound to the obligation of non-refoulment and to the prohibition of torture. One of the reasons for the failure of granting such rights is the political chaos amid the country as well as the  complete impunity which continues to prevail in Libya and the systemic failures of the justice system.

The gap between theory and practice in this regard could not be wider. For these reasons, the UNHCR has been urging – however unsuccessfully – the international community, especially the EU and Italy, for many years to refrain from cooperating with Libya until the state complies with international human rights standards.

 

The EU’s role in the situation

“Who are the traffickers? They are Africans my friend, they are Africans”. This angrily voiced exclamation by French president Emmanuel Macron during the AU-EU summit (from 5:36 min on), exemplifies the EU’s attitude about its contribution to the dire situation for migrants and asylum seekers in Libya: an attitude of denial of responsibility for the horrific circumstances.

There is a long track record of cooperation in the field of migration between EU member states and Libya. For example, Italy and Libya had already established a return agreement in the mid-1990s. After the end of the Al-Gaddafi regime, a new era of intense interest of cooperation began. In June 2015, the European Union Naval Force – Mediterranean (EUNAVFOR MED “Operation Sophia”) was set up in record time to hinder migrant smuggling in the Mediterranean Sea.  In October of the same year, the UN Security Council Resolution 2240 was passed, giving Operation Sophia the authority to be present on the high seas and in Libyan territorial waters, in pursuance of stopping human smugglers and trafficking.  The current mandate of Operation Sophia was recently prolonged and now runs until 31st December 2018. In the course of the operation, 25 Member States have contributed almost 1.800 personnel and assets, equipment and training of the Libyan Coastguard and Navy.

The EU’s interest in cooperating with Libya is obvious – almost 90% of departures of asylum seekers and migrants in 2015 from Africa to Europe left from here. Thus, in order to strengthen efforts to keep migrants and asylum seekers from reaching European shores, EU member states set a series of concrete goals for cooperating with Libya in the 2017 Malta Declaration. In a nutshell, the EU promised Libya financial aid, training of the coast guards, and technical support in exchange for preventing asylum seeker from accessing Europe. Especially the training of  intercepting and rescuing migrant boats near the Libyan coast before they reach international waters so that they can be returned to Libyan shores instead of European ones, is politically discussed as a “successful” approach to shift large numbers of arrivals off its shores.

These interceptions lead to detention in Libyan facilities under unbearable circumstances and also correlate to the selling of human beings and arbitrary killings as described above. It is thus not surprising that UN Human Rights chief Al-Hussein called the EU’s policy of assisting the Libyan Coast Guard to intercept and return migrants in the Mediterranean “inhuman”.

 

EU attempts to circumvent its legal obligations

Especially the training of the coast guards with the aim of increasing the interceptions within the Libyan territorial sea have to be assessed as measures used by EU member states to circumvent their legal obligations such as the non-refoulement principle or the prohibition of collective expulsion. The prohibition of collective expulsion – which is of customary law character and codified in Art. 4 Protocol No. 4 to the European Convention on Human Rights (ECHR)– demands an individual, reasonable and objective examination of the personal circumstances of every claimant and her particular case by the relevant authorities.

The underlying reason is simple: according to the case law of the European Court of Human Rights (MSS v. Belgium and Greece, Sharifi and Others v. Italy and Greece, and Khlaifia and others v. Italy, especially according to the famous Hirsi Jamaa judgement, member states are bound to these obligations not only on their territory, but also on the High Sea if they have continuous and exclusive de jure and de facto control over the individuals. This is not the case if the individuals never make it to the High Sea, as they have been intercepted beforehand within Libyan territorial waters.

Hence, as long as member states to the European Convention do not exercise such an effective control over migrants and asylum seekers, no jurisdictional link can be established and thus no responsibility for an internationally wrongful act can be triggered. State responsibility for violating the non-refoulement principle (Art. 3 of the ECHR) and the prohibition of collective expulsion (Art. 4 Protocol 4 ECHR) in accordance with the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) may be established in some specific cases where such effective control was given. As a prerequisite, the wrongful act would have to be attributable to the ECHR-member states (Art. 4 ARSIWA) or the states would have to have aided or assisted Libyan authorities in the commission of an internationally wrongful act (Art.16 ARSIWA).

Despite the fact that responsibility of ECHR-member states may be triggered in some individual cases of unlawful interceptions and push-backs, no general legal responsibility of these states for the human rights violations in Libya on the basis of monetary and other forms of aid can be established under international law. EU member states nevertheless have a moral obligation and a model function not to support a system which commits atrocities on a large scale just to reduce the numbers of arrivals of migrants and asylum seekers in Europe. Therefore, the EU has to stop the training of the Libyan coast guards and end all cooperation efforts until the human rights situation has been drastically improved.

 

The EU’s dismal plans for cooperating with Libya

For now, it seems that even the EU member states can no longer turn a blind eye on the ongoing human rights catastrophe in Libya, which does not mean that the cooperation is abolished. EU policymakers have several plans for Libya in the drawer: from a training mission for Libyan soldiers, external hotspots in northern Africa, the deployment of the EUROGENDFOR EU policing group, which could be used as a stabilizing instrument to the establishment of a return agreement similar to the EU-Turkey deal. Currently, the question whether the EU-Turkey model can be replicated in other Arab Mediterranean contexts such as in Tunisia, Egypt and Libya, luckily remains a theoretical thought experiment. The question whether a transit state is a safe place for a returned asylum seeker in the context of the EU-Turkey agreement’s safe third-country concept, already sparked a controversial discussion on the question if Turkey is such a safe state or not (here and here in opposition).

Considering the situation in Libya, one wonders how this country will be declared a safe third country in the near future. Besides that, the Libyan government also resists the demands of the EU countries Austria and Hungary to return refugees to Libya, maybe this hurdle will also – as in many previous cases – only be a question of money and concessions?

 

Photo Credits:

(c) Florian Richter