The implementation of a system of forced return to Libya
Sophie-Anne Bisiaux
Border externalization has in the last few years become the main instrument through which the EU seeks to stop people on the move heading to Europe. The principle is as simple as it is cynical: outsource border control and the rights violations that these controls necessarily imply to third countries. To stem migration across the central Mediterranean, the EU member States have been cooperating with the North African countries since the 2000s, providing logistical, operational and financial support to control their coasts in order to prevent that European shores are reached.
As of 2016 onwards, faced with persistently high numbers of migrant arrivals, Italy and the EU have accelerated the practices of externalized border control, especially in Libya, seen as a major place of departure. Following a “pushback by proxy” strategy, European migration policies have established a system of forced return to Libya. Combining capacity building of the so-called Libyan Coast Guard and the criminalization of civil sea-rescue, these policies are violating international law and aggravating the situation of the people on the move trying to escape from Libya.
STRENGTHENING THE CAPACITY OF THE SO-CALLED LIBYAN COAST GUARD
In Autumn 2016, while Libya was still considered a failed state by the international community and torn by the civil war, EU started training the so-called Libyan Coast Guard personnel through its EUNAVFOR MED operation (EU naval operation set up in 2015 to fight against migrant smuggling and human trafficking in the Central Mediterranean).
In February 2017, the Italian interior minister Minniti of the Democratic Party, with the political and financial support of EU institutions, signed a Memorandum of Understanding with Al Serraj’s government in Libya, establishing a strong cooperation between the two countries in combating illegal migration from Libya. As part of the implementation of the Memorandum, the Italian authorities provided financial and logistic support to the so-called Libyan Coast Guard, heavily increasing their presence at sea through the provision of ships and training of personnel, allowing them to perform a very high number of interceptions of people fleeing from Libya.
In July 2017, the EU programme “Support to integrated border and migration management in Libya” was adopted to further enhance the capacity of the Libyan authorities through a €46 million envelope. A significant part of these funds was earmarked for increasing the presence of the so-called Libyan Coast Guards at sea, and granting them all the attributes of a functioning Coast Guard body – including a SAR zone and a functioning Maritime Rescue and Coordination Centre (MRCC), the objective being to allow Libya to take over from Italy regarding the organization and coordination of “rescue” in this area, and for Italy and Malta to shirk their responsibility and always officially refer to Libya as the competent authority.
This objective was officially reached in June 2018 through the registration of a SAR zone 200 kilometers north of the capital Tripoli with the International Maritime Organization, and the creation of a Libyan MRCC. In 2020, two other “coordination centers” were also created and financed by Malta in Libya.
It is however important to underline that up to now Libya has clearly shown no capacity for managing the vast area declared as its search and rescue region (SRR) either in terms of technical knowledge or equipment, or regularly delaying or refusing “rescue”. In addition, Libya is under no circumstances a safe place to disembark rescued people, rescued people being systematically brought back to detention centres where their lives are threatened and their human rights are seriously violated. This circumstance is not new nor is it unknown by European authorities. On the contrary, it has been extensively documented by both non-governmental and governmental organizations, journalists, researchers and through the widespread testimony of those who suffered violations of their fundamental rights in Libya and subsequently managed to reach the European Union.
EU MEMBER STATES ESCAPING SEARCH AND RESCUE RESPONSIBILITY
With the objective of avoiding at all costs the disembarkation of migrants rescued or intercepted in Europe, the EU member States have gradually withdrawn from their search and rescue responsibilities.
This trend started as early as November 2014, when the Italian-led rescue operation, Mare Nostrum, came to an end. Launched in the aftermath of the Lampedusa shipwreck of October 2013 (during which 368 people died), the operation, which had saved thousands of people, was cited as a “pull factor” responsible for the increase in migrant crossings in 2014 and the increased number of disembarkations in Italy. A year after it started, Mare Nostrum was superseded by Frontex’s Operation Triton, which operated with smaller capacity and a much smaller search and rescue zone.
The withdrawal of the EU States from search and rescue operations has accelerated with the strengthening of the so-called LCG capacity. While in the Libyan “SRR” zone, the European MRCCs categorically refuse to intervene, referring to the responsibility of the so-called LCG, non-assistance tends to become the rule also in the European SAR zones. MRCC Rome has progressively reduced their direct responsibility for rescues to a small belt around Lampedusa. In the Maltese Search and Rescue zone, RCC Malta and the Armed Forces of Malta delay rescues or refuse to rescue while they coordinate pushbacks by proxy.
COORDINATING PUSHBACKS FROM THE AIR
At the same time, the EU has gradually replaced its maritime surveillance assets with airborne assets, to avoid the need to disembark rescued or intercepted people in European ports. This is the case of the Frontex mission, which now has only surveillance aircraft and drones (Multipurpose Aerial Surveillance), but also for the EUNAVFOR MED Sophia mission after March 2019, when, following the lack of agreement at EU level to relocate the migrants rescued under the mission and who were disembarked in Italy, the maritime operations were suspended and replaced by air patrols. In April 2020, EUNAVFOR MED Sophia was substituted by Irini, which reintroduced maritime operations to enforce the arms embargo, but only in areas further east, where there is little chance of encountering migrant boats departing from Libya.
The aircraft directly stream video and other data to Libyan authorities, allowing for real-time monitoring at and beyond the borders of the EU, including for the early detection of migrant boats departing from Libya. This sharing of intelligence between EU and Libyan SAR authorities works to guide the so-called LCG towards boats that will then be captured and forced back to Libya. This strategy is used to effectively pushback migrants to Libya from international waters, including “pushbacks” from the Maltese SAR zone. Numerous illegal pushbacks, operated directly by so-called LCG or by private merchant vessels commissioned by the Maltese authorities, have indeed been observed in recent years.
ILLEGAL PRACTICES
The current behavior of European MRCCs and the ever-closer cooperation with Libyan authorities by the European Union and European member States, with the implicit purpose of allowing the people to be pushed back to Libya, are illegal. Indeed, the mere existence of a Libyan SRR shouldn’t impact the obligations of European Member states. Libya remains an unsafe place for disembarkation and thus European member states should coordinate the rescue of any boat in distress they are informed about and, in accordance with the law, ensure disembarkation in a safe country.
Through the coordination of SAR operations, the financial and logistical support to the so-called Libyan Coast Guard, and the political legitimization of the Libyan authorities, EU States’ activities facilitate the illegal interceptions carried out by the so-called LCG. They remain responsible for the violations suffered by the people pushed back to Libya, who are caught in an endless cycle of abuse and exploitation. When coordinating rescue operations, European member States knowingly ignore international maritime law and human rights law, in particular the non-refoulement principle, whereby countries receiving asylum seekers are forbidden from returning them against their will to a territory where their life or freedom could be at risk.
In 2012, the European court of human rights made it clear in the decision Hirsi-Jama that Libya was under no circumstances a safe place to disembark rescued or intercepted people fleeing the country. In this case, Italy was found guilty of violating the non-refoulement principle, after three boats carrying approximately 200 migrants were intercepted by the Italian police and Coast Guard in the Maltese SRR on their way from Libya to Italy, transferred onto Italian military vessels and handed over to Libyan authorities in the port of Tripoli. The difference now is that the EU and Italy act indirectly through the so-called Libyan Coast Guard, operating the pushback by proxy and outsourcing the violation of the non-refoulement principle.
CRIMINALIZATION OF THE CIVIL FLEET
The situation in the central Mediterranean has been aggravated by the increasing criminalization of NGOs providing assistance at sea. The civil fleet began operating in the region after the termination in 2015 of Mare Nostrum. As states put an end to their SAR operations, accused of encouraging crossings and arrivals in Italy, NGOs multiplied in the central Mediterranean to deal with the increasing number of shipwrecks. Various NGOs arrived to ensure a civil presence at sea through rescue vessels, a hotline for migrant people in distress and aerial reconnaissance operations. However, these actors quickly became unwelcome actors and witnesses, especially in 2016, when the EU and its member states intensified their cooperation with the so-called LCG. Whereas these solidarity initiatives have enabled more than 75.000 people to be rescued and disembarked in European ports between 2014 and 2018, the EU States reacted with widespread criminalization and intimidation campaigns to attempt to stop their activities.
This movement to criminalize solidarity at sea intensified particularly during the summer of 2017, when the Italian government imposed a “code of conduct” on NGOs rescuing migrants at sea, prohibiting them from approaching Libyan waters and requiring the presence of a police officer on board the boats. At the same time, following the declaration of its SAR zone, the Libyan authorities threatened any rescue NGOs that dared enter it. Since, several NGOs were attacked by the so-called LCG while in international waters. From their side, EU members began actively prosecuting NGOs involved in rescue activities, seizing and impounding their vessels, and charging crew members with facilitating illegal immigration. Since 2018, Italy and Malta have also limited disembarkations, regularly closing their ports to sea-rescue NGOs and imposing long stand-off periods upon them.
DISASTROUS CONSEQUENCES
These policies of criminalization against sea rescue NGOs, coupled with a strengthening of the forced return regime in Libya, have not prevented people from attempting to escape Libya. The central Mediterranean route has become even more dangerous, causing the disappearance each year of hundreds of people, and pushing thousands of them into an endless cycle of abuse and exploitation.
Whereas many still manage to reach Europe, the proportion of people returned to Libya keeps increasing. In 2021, of over 60 000 people who departed from Libya by sea, half managed to reach Italy, autonomously or after having been rescued by the civil fleet or the European Coast Guards, and the rest were intercepted and returned to the place they were trying to escape. For the first time, the number of interceptions is therefore higher than the one of arrivals. Many people report to have been intercepted twice, and sometimes up to 5 or 6 times. While virtually everyone intercepted at sea by the so-called Libyan Coast Guard ends up in a Libyan detention centre, the pushback system orchestrated by the European Union is fueling a cruel system of human trafficking and arbitrary detention in which many migrants find themselves trapped.
The CMRCC strongly condemns this inhumane border regime based on a security approach against migrants. As a network of actors supporting solidarity at sea, we will continue to tirelessly remind EU states of their sea rescue obligations, document their rights violations, and to deepen the cooperation among the civil society in order to ensure prompt rescue of the people in distress and their disembarkation in a safe place. This place cannot be Libya or Tunisia.