8 February 2017
Lawyers for Justice in Libya (LFJL) is concerned by the Memorandum of Understanding (MoU) between Italy and the Government of National Accord dated 2 February 2017 in relation to border security and migration. The MoU gives the Libyan coast guard an increasing role in controlling “illegal migration” but fails to ensure adequate protection of refugees, unaccompanied minors and victims of trafficking (migrants) in Libya. LFJL reminds both parties that this MoU does not supersede the obligation under international law to protect migrants.
Thousands of migrants attempt to cross the Mediterranean Sea from Libya to Italy in search of a safe haven in Europe. International organisations have recorded 181,126 border-crossings on the Central Mediterranean route in 2016, with over 4,500 persons dying in failed attempts. The situation is made more complex by the fact that many intercepted migrants are returned to Libya, where they are held in detention centres. Detainees in these centres are subjected to systematic ill-treatment, including forced labour, beatings, torture, rape and sexual violence.
Although the MoU mentions cooperation on matters like healthcare for migrants, it has no guarantees of key human rights, such as access to a fair and effective asylum procedure for those intercepted at sea. It also does not provide protection for victims of human trafficking. The MoU is silent on Italy’s obligations under international and European Union law to offer asylum in the context of its partnership with Libya. This is especially alarming given that Libya has no asylum law and does not have the resources, infrastructure or political will to deal with the immediate and long-term needs of migrants.
In judgments delivered by the European Court of Human Rights in 2012 and 2015, Italy was found to have breached its obligations under international law by pushing back migrants into Libya, where there was a high risk that they would be subjected to torture. Under this latest MoU, Italy will provide training to the Libyan coast guard to intercept vessels and deal with migrants. Italy is returning migrants to Libya by making it the role of the Libyan coast guard to do so. LFJL is concerned that this as an attempt by Italy to sidestep the rulings.
Through the MoU, Libya is assuming the responsibility for the returned migrants. LFJL reminds the Libyan state that it is its duty to ensure these migrants’ right to freedom from torture and inhuman or degrading treatment. The use of torture can never be justified. Libya must ensure that no migrant is subjected to torture in the detention or reception facilities or in any other facilities over which the Libyan state has direct or indirect control. LFJL also reminds the Libyan state that authorities should only detain migrants when strictly necessary, for a limited period of time and that the detention must be reviewed by a judge. It is the responsibility of the Libyan state to ensure that places of reception meet international standards, including the provision of healthcare and sanitary facilities. Having taken on the responsibility of returned migrants to Libya, LFJL calls on the Libyan state immediately to establish asylum procedures that meet international refugee standards, including by ratifying the 1951 Refugee Convention.
LFJL Director, Elham Saudi, warned “This is not the first time Italy has attempted to escape its international obligations to protect refugees, unaccompanied minors and victims of trafficking. These vulnerable groups must not be taken to Libya or any country that does not have the resources, infrastructure or legal framework to protect them and which has a record of ill-treatment and torture of these groups.” She also remarked, “By signing on the line, Libya has accepted the duty to ensure the protection of these vulnerable groups from ill-treatment and torture. States cannot allow bilateral agreements to undermine the protection afforded under international law to refugees, unaccompanied minors and victims of trafficking, many of whom are the victims of torture and abuse.”