The truth about the alleged pull-backs of migrants from the sea to Libya

Italy is under scrutiny for allegedly forcing migrants and asylum seekers to return from international waters to lawless territory. A European source recognizes to Salam Plan that such actions are illegal but the European Commission denies that it is happening.

A boat with 130 people on board is in distress off the Libyan coast. The rescue vessel of the German NGO Sea-Watch arrives to rescue them, but on instructions from the Italian Maritime Rescue Coordination Center (IMRCC) and its Libyan counterpart, they have to let the Coast Guard of the North African country take the survivors back. It does not matter that they were in international waters.

About twenty passengers of that vessel died, including children. Those who were taken back by Libyan coast guards, endured detentions “in inhumane conditions”, beatings, extortion, starvation and rape. Two of the survivors were “sold and tortured with electrocution.”

This week 17 of the survivors of that event last November have filed an application against Italy before the European Court of Human Rights, defending this version. They are represented by various legal and medical associations, including the prestigious Yale Law School.

Sea-Watch has long been denouncing similar episodes in international waters and describes them as “illegal and deadly”. They assure these pull-backs are orchestrated not only by Italy, but also by the European Union, which they blame for “facilitating forced returns to Libya”.

“Pull-backs to Libya are illegal and deadly”

— Sea-Watch

Doctors Without Borders (MSF) has also criticized Italy, which coordinates rescues in the Central Mediterranean. On March 30, a boat operated by this NGO together with SOS Mediterranée arrived first to rescue some 120 people from a rubber boat “in distress”, according to the alert sent to them from the Italian coordination center. It was also in international waters near Libya and MSF says the center in Rome instructed them to stand by and not engage. They had to wait for the Libyan coast guards to arrive.

The situation of the boat worsened while they were waiting and the NGO negotiated to be able to deliver life jackets and to evaluate the people’s medical conditions. They identified 39 “medical and vulnerable cases” and could evacuate those. Among them there were a newborn, a pregnant woman and families with children.

MSF later said in a statement that due to the “violent reactions in recent months by the Libyan coast guard to the few other remaining humanitarian organizations” in the area, the crew could not “complete the rescue”. They had already other 253 people from other rescue operations on board and the Libyans ordered them to leave.

Another case is the one of the Spanish NGO Proactiva Open Arms, which had its ‘Open Arms’ rescue ship in Italy recently withheld until a judge settled its release. Two members of the NGO formed by lifeguards still face charges of human trafficking, the same accusation against three Spanish firefighters of the small NGO Proem-Aid that in a brief court hearing in Athens were acquitted last Monday. Proactiva publicly denounced already last summer that the Libyan coast guards made some shots to try to prevent them from rescueing people near there territorial waters.

“European Governments actively enforce policies of deterrence and containment in Libya”

— Doctors Without Borders (MSF)

These are just some examples. The cases of pull-backs reported by humanitarian organizations continue to pile up week after week. MSF, which traditionally avoids making statements of  political nature to keep impartial, has said: “MSF continues to call on European Governments to prioritise the safety of refugees and migrants rather than actively enforcing policies of deterrence and containment in Libya.”

Libya is “hell for refugees”

The UN Agency for Refugees (UNHCR) has access to 12 “disembarking points” on the western coast of Libya as well as to detention centres. It ensures that the country is a “death trap” and “hell for refugees”. Moreover, the agency explains in its recent report “Desperate journeys” that those who are returned from the sea to Libya end up systematically in detention centres.

Another revealing data collected by UNHCR: the number of dead at sea crossing to Italy has “more than doubled”, with one death per 14 persons attempting to cross the Mediterranean in the first quarter of 2018 compared to one death every 29 persons in the same period last year. At the same time, arrivals by sea to Italy were reduced “dramatically” since July 2017. At the same time, boat rescues or interceptions by Libyan coast guards increased.

“Among those arriving in Italy from Libya there are more people in a state of extreme weakness and thinness, and in general with poor health”

— UNHCR

“In addition, in recent months there has been a worrying health deterioration of those arriving in Italy from Libya, with more people arriving in a state of extreme weakness and thinness, and in general with poor health,” UNHCR reported in April.

The changing factor between the beginning of 2017 and now is the agreement that Italy signed in February last year with the only government in Libya internationally recognized. Rome provides them with the necessary means and training to monitor the international waters near the North African country. It is also true that the UNHCR itself recognizes that thanks to Rome and that Libyan government (one of three who are fighting for power in the failed state) they have been able to evacuate several hundred refugees safely. But let’s go step by step.

The European Commission will not take action against Italy

The European Commission (EC) assures that making forced returns to Libya is illegal, as a ruling of the European Court of Human Rights made clear in 2012. However, in practice it moves between turning a blind eye and denying that these actions are taking place in international waters, with no intention of investigating the repeated claims of humanitarian organizations.

The Commission’s position was confirmed in the responses of its spokesperson, Natasha Bertaud, during a press conference on Tuesday. At the insistence of several journalists about the passivity of the Commission, she said: “European boats, including Italian boats, are acting in full respect of the principle of non-refoulement.” There is, therefore, no hint of sanction or warning to Italy, as it is happening respectively with Poland and Hungary in other matters.

“European boats, including Italian boats, are acting in full respect of the principle of ‘non-refoulement'”

— Natasha Bertaud, European Commission

Bertaud argued that they cannot interfere in an issue that, according to her, depends on regulations outside the European one. But article 7 of the Treaty of the European Union states that measures can be taken against a Member State when it does not respect the fundamental values ​​of the Union (article 2). Among them are “respect for human dignity”, “respect for human rights” and “a society in which [among other maxims] solidarity prevails”.

The spokeswoman for the Commission did describe as “regrettable” another incident that confronted Italy and the United Kingdom earlier this week. 105 people, including children, had been rescued at sea by another Proactiva ship. They had to wait more than 24 hours before they could be transferred to one operated by MSF, which was right next to it. The reason? Italy assured them that they were not under their jurisdiction, but under the British.

Italy’s agreement with a failed state

That returns of migrants to Libya are currently taking place, is a fact, according to Wolfgang Pusztai, someone who knows the situation on the ground first hand and one of the security advisors on Libyan issues to the EU and Italy. “There are currently a large number of migrants in the SAR (search and rescue) region of ​​Libya who are caught with the support of the Italian Maritime Coordination Centre in Rome and the Italian Navy – through information on the location of the boats- and transported back to Libya,” he confirmed to Salam Plan.

Whether these actions are legal or not depends, according to him, on the assessment of the situation of the refugees in Libya. We already know what UNHCR thinks, and it is an agency the European Commission works with in that country. Pusztai would not send back the migrants found at sea.

The agreement signed by the Executive of Matteo Renzi with the Libyan Government of National Accord last year has led to collaboration in the surveillance and rescue or interception of boats with migrants outside the Libyan territorial waters, but in an area that theoretically would correspond to the North African country. The Mediterranean is divided into search and rescue zones (SAR) and Italy has for years been responsible for the area that now Rome and Brussels are trying to transfer to Tripoli.

“There are currently a large number of migrants in the search and rescue region of ​​Libya who are ‘caught’ with the support of the Italian Maritime Coordination Centre in Rome  and transported back to Libya”

— Wolfgang Pusztai, security adviser to the EU and Italy

For that to be possible, there is a project of a Libyan Centre for Maritime Coordination (LMRRC), such as the one in Rome coordinating rescues in the central Mediterranean. It is an initiative of the Italian Coast Guard funded by the European Commission, “with the aim of conducting a feasibility study in order to establish a Libyan MRCC and to support the Libyan authorities in identifying and declaring their Search and Rescue Region”.

That is what they told the International Maritime Organization (IMO). This centre in Libya is essential to be able to declare a SAR zone, according to international maritime laws. Although an IMO representative has explained to Salam Plan that it is the countries -and not this organization- who recognize or not the legitimacy of a SAR area.

The complexity of the whole situation is due to the fact that Libya is a failed state. The country has been plunged into chaos since the fall of dictator Muammar al-Gaddafi in 2011. The three parallel governments of the country are fighting over territorial power not only with each other, but also with militias and terrorists like Daesh/ ISIS. The authority recognized by Western countries is the already mentioned Government of National Accord, which only controls the city of Tripoli, and not even completely, Pusztai says.

On the other hand, Italy does not act solely by virtue of the agreement with that government and with a half-implemented Libyan SAR area, but as part of the so-called ‘Operation Sophia‘. That military operation of the EU before the Libyan coasts to prevent irregular immigration, human trafficking while at the same time rescuing those boats in distress, as required by maritime law. The same that also gives training to the Libyan coast guard and provides them with means to operate.

A 2017 report by the Oxford Analytica consultancy for the European Council recognizes that “the rescue/interception of migrants in the Libyan SAR zone raises questions about the state responsible for the rescue operation and the port of disembarkation, which should be a ‘place of safety’”. At the same time, it reminds that the SAR Convention does not include the obligation to allow disembarkation in a particular port; neither does it oblige a state to accept the rescued people.

The pull-backs from international waters that denounced by humanitarian organizations occur in the area designated theoretically to Libya. Rome remains the legal authority to which their ships have to oblige, but Italy coordinates with them and with the Libyan coast guards.

The dangers of Libyan chaos

The annual report of Amnesty International 2017/18 states that in Libya all parties to the conflict carry out “indiscriminate attacks”, “serious violations” of international law and human rights. Torture and other ill-treatments are “widespread” practices in prisons. “Migrants, refugees and asylum-seekers were subjected to widespread and systematic serious human rights violations and abuses at the hands of state officials, smugglers and armed groups,” the study indicates.

There are also testimonies of migrants who claim to have been sold as slaves in Libya -a circumstance confirmed by Pusztai, the security expert- although he denies that it is happening on a large scale.

“Many of those who arrive to Italy by sea are persons fleeing violence and persecution, and people who had experienced trafficking, torture, and other forms of abuse in Libya”

— UNHCR

More than 662,000 migrants in Libyan territory are exposed to these dangers. The International Organization for Migration (IOM), deployed in the country, has counted among them 5,000 migrants currently detained, including children.

In addition, about 51,500 refugees and asylum seekers are registered at UNHCR. This is without counting the displaced Libyans themselves in their country, which are 184,000. This does not mean that other migrants in Libya cannot qualify for asylum in Europe. In fact, UNHCR explains in its recent report that among “those arriving to Italy by sea from Libya, many were seeking international protection including persons fleeing violence and persecution, and people who had experienced trafficking, torture, and other forms of abuse in Libya.”

“The current reception system, despite recent improvements, remains unacceptable as migrants remain in detention after being returned”

— International Organization for Migration (IOM)

This week, IOM positively assessed the work of the coast guards of Tripoli, who have intercepted one out of every three boats in recent months. But at the same time, it warned: “The current reception system, despite recent improvements, remains unacceptable as migrants remain in detention after being returned.”

Pusztai, the adviser to Rome and Brussels earlier mentioned, shows his concern for the “harassment” of the Libyan coast guards against the NGOs “to try to push them out” and “to be the only ones who can rescue”. Why are they so keen to pick up the people drowning in international waters (albeit within their theoretical area of ​​responsibility)? “That certainly also has to do with the Italians and the Europeans exercising the corresponding pressure. There is no doubt about that,” he says. “The Government of National Accord is completely dependent on international support.”

The responsibility of the EU

The document mentioned by leaders of the EU Member States recalls that “a safe place” to land shipwrecked people in accordance with the Geneva Convention is “a place on dry land where the lives and freedoms of those alleging a well- founded fear of persecution, torture, and ill-treatment would not be threatened.” Still, each government and European body interprets it differently.

For the socialist MEP Juan Fernando López Aguilar the answer to whether Libya is a safe country to which migrants or asylum seekers should be sent back, is: “Flatly, no.” On Italy, this member of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament emphasizes that “it has a history of convictions (and it is) under scrutiny (of the EP), but that does not prevent us from recognizing that it has invested its own resources to save lives at sea”.

Is Libya a safe country to which migrants or asylum seekers should be sent back? “Flatly, no. It’s a ‘non-state’ in which, unfortunately, Italy has been forced to look for local partners”

— Juan Fernando López Aguilar, MEP

He considers that the Italian Public Prosecutor’s Office is an independent body that will be able to judge the specific cases of alleged automatic returns, but he does not believe that Italy’s overall work in the central Mediterranean is comparable to the hot returns produced in places like Spanish Ceuta and Melilla, condemned by the Strasbourg Court of Justice.

“Libya was a failed state, now it is a ‘non-state’ (…) in which, unfortunately, Italy has been forced to look for (local) partners to try to alleviate the tremendous pressure that it has been suffering alone in recent years,” says the socialist MEP. He adds a crucial remark to assess the security or not of Libya: among those interlocutors with whome Rome “has reached some kind of understanding” there are also not only militias, but human trafficking networks.

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In spite of everything, a European high official familiar with the terrain that asks for anonymity assures Salam Plan: “Libya does not seem dangerous to me (…). It depends a lot on the area. Regarding immigrants, the south controlled by Tebus and Touaregs is much more dangerous than the areas of departure at the coast. Western Libya, near Tunis, is relatively quiet.”

Nevertheless, he recognizes that in Libya “immigrants won’t be able to be protected the same way as in Europe, especially if they are refugees”. Asked about “the pull-back of migrants found adrift in the Mediterranean and returned to Libya by order of the center of Rome”, this person recognizes that “that is illegal according to a ruling of the European Court of Human Rights (ECtHR).”

The case that ruling refered to was also against Italy, which in May 2009 intercepted a ship in the middle of the Mediterranean with 834 people on board and returned them to Libya. At that time, Gaddafi still ruled the country, but the work document of the European Council does not make distinctions with the current moment: “As stated by the ECtHR, (…) Libya cannot be considered a ‘place of safety’ because of the well-documented inadequacy of its response to flows of migrants and asylum seekers.”

The European Commission therefore maintains that hot returns are illegal, but it denies that they are occurring. On the other hand, the Commission explains to this website that they work with UNHCR and IOM “to improve the conditions of people who are trapped in Libya.” They also collaborate to evacuate migrants there legally, either by returning them to their countries of origin or by resettling them.

In the last three months, UNHCR has been able to safely evacuate more than 1,000 asylum seekers and refugees to Italy and Niger. But the Agency for Refugees continues to struggle to have access to all migrants and asylum seekers in order to evaluate their request.

“Everything indicates that (pull-backs) will keep on rising. It is happening more and more often”

— Laura Lanuza, spokesperson for the NGO Proactiva Open Arms

Pusztai acknowledges that the European Commission “has been much stricter with Hungary and Poland” than with Italy. He assures that precisely because of the situation of insecurity in Libya, eventual investigations on the ground would be “very difficult” to conduct. Even so, this expert believes that the reports of UNHCR and IOM are reliable. “Everything here comes back to the question of what is still ‘acceptable’. The answer of the Italians is obvious”, he resolves.

It cannot be forgotten that the EU has also formed and provided means to the Libyan coast guards and is financing the project of a possible maritime control centre in Libya.

Possible short-term solutions

“Many of us have been complaining for a long time against hypocrisy, that the EU continue to return so-called irregular migrants – even if they are asylum seekers – without giving an option for regulation at origin,” MEP López Aguilar regrets. He advocates for “humanitarian visas“, which would give a limited entry permit only to be able to raise the asylum or subsidiary protection request once in the EU, if they cannot present it in their countries of origin.

Pusztai proposes another possible transitory solution: to construct migrant and refugee camps on uninhabited or sparsely inhabited islets of the Mediterranean where these people can make their applications. The European authorities could study each case before deciding whether they are entitled to asylum here or whether they are economic migrants and should be sent back to their place of origin.

“I think it is urgent to save these people and evaluate them before bringing them to Europe. Everything else would not be really responsible,” explains this expert. He does not say it solely because of the humanitarian concerns, but also because in his opinion both the Operation Sophia ships and those of the NGOs exert a “suction effect”.

He mentions another aspect to be taken into account: Daesh is recruiting sub-Saharan Africans who have already attacked in Tripoli. For this reason he estimates that they could leak among the migrants on the boats. It is worth remembering here that the vast majority of the so-called ‘jihadist’ attacks on European soil have been carried out by people born or raised here, such as the attacks in Paris or Catalonia. While it is true that in some cases, like the young man who attacked the passengers of a Bavarian train with an ax, he was a radicalized refugee.

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Humanitarian organizations insist that it is essential to establish legal and safe passage for asylum seekers. But while a solution to the so-called “migratory flow” is found in the central Mediterranean, Italy is already applying its agreement with Libya without much European scrutiny.

So far this year, more than 9,500 migrants or asylum seekers have arrived in Italy across the Mediterranean, according to IOM. So far, at least 385 people have died in that journey. Meanwhile, almost 6,000 migrants have been returned to Libya.

“Everything indicates that (pull-backs) will keep on rising. It is happening more and more often,” says Laura Lanuza, spokesperson for the NGO Proactiva Open Arms. And she warns: when the Libyan coast guards take the people back they do not rescue them, they “capture” them.

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