When migrants do not arrive in Europe: The Memorandum of Understanding

This article is a contribution from our partner EU-Logos.
On February the 2^nd  2020, the harshly criticized agreement between Italy and Libya about the control and the fight against illegal immigration, human trafficking, fuel smuggling and reinforcement of border security in the Central Mediterranean has been silently and automatically renewed, with no changes, despite calls from human rights groups and NGOs to revoke it. Italian government signalled no intention of changing course. Actually, some small glimmers of change seem to appear at the horizon, because the second week of February the Italian Ministry for the Foreign Affairs, Luigi Di Maio together with the Ministry for Home Affairs, Luciana Lamorgese (who replaced Matteo Salvini), announced that Italy has been asking for some modifications to the agreement, calling for a meeting of the joint Italian-Libyan Commission. In this article we are going to deal with the migrants’ situation in the centres of detention in Libya where they arrive, and from which is difficult to escape. This article firstly will give a background about the situation in the Mediterranean, the consequences that this agreement has been producing and still produces and which are the possible improvements in order to get a more sustainable condition in Libya.
 

1. Legal aspects and background

The Memorandum of Understanding (hereafter Memorandum or MoU) is an agreement of intention signed in 2017 by the Italian centre-left government led by Paolo Gentiloni and Fayer Mustafa Sarraj, Head of the Libyan Government of National Accord recognised by the international community. This document was part of a more general migration policy adopted by Italy (together with the so called “decreto Minniti” and the code of conduct for NGOs) as aftermath of the 2015 migration crisis and the repeated summit of EU Heads of States calling for a reduction of migrants arriving on the Italian coast and in turn in Europe. The MoU refers to a previous partnership and cooperation agreement signed in 2008 in Benghazi, and specifically in the field of migration, to the art. 19 through which “the two Parties promote the creation of a Libyan land border control system […] The Italian Government will bear 50% of the costs, while for the remaining 50% the two Parties will ask the European Union to take charge of them”. Through it, the two parties set out a framework to work together in « development cooperation, countering illegal migration, human trafficking and smuggling and reinforcing security at the Libya-Italy border« . Italy engages itself to provide training and material, military and financial resources to the Libyan Coastguard to block the boats towards Europe, as well as the completion of Libya’s southern land border control system. The document is composed of 8 articles. In particular art. 3 mentions the establishment of a mixed committee to implement the Memorandum, articles 6 to 8 explain technical aspects and the duration of the agreement (3 years). Overall, the MoU is generic, sometimes legally imprecise and above all it does not reveal much about the precise projects supported or the amount and origin of funds.
This deal has provoked waves of indignation, especially from the civil society, NGOs, associations for human rights, who accused Italy and the European Union, to be guilty and co-responsible of violation of human rights (and consequently of duties coming from the International Conventions) which occurred in the African country.
It is worthy to bear in mind that Libya has not adopted the 1951 Refugee Convention or “Geneva Convention”. It defines who can be considered as a refugee ; sets out the responsibilities of nations that grant asylum; the rights of individuals who are asking for asylum from persecution in other countries and affirms the principle of non-refoulement (art. 33): a principle of customary international law that forbids the country of arrival to bring back the asylum seeker to his country of origin where his life can be threatened or in danger of persecution based on « race, religion, nationality, membership of a particular social group or political opinion« . Indeed, non-refoulement refers to the generic repatriation of people, including refugees into zones afflicted by wars and climate disasters. This principle applies even to States not part of the Convention, but several times has been violated. Moreover, the Libyan penal law is very clear: it foresees the illegal migration offence. It means that a migrant, who has to cross Libya in order to reach Europe – i.e. he does not want to remain there – is guilty to enter irregularly in the country and is immediately arrested and detained, indefinitely and without any trial. The same happens if the migrant is caught in the act of leaving the country in front of the Libyan coasts: mostly during the night, migrants are trying to leave aboard precarious boats (in conditions we all know) risking to die through the journey or risking of being intercepted by the Libyan Coastguard, pushed back into the conflict zone and put into detention centres. In Libya does not exist any asylum law and it has not formally recognized the United Nations High Commissioner for Refugees.
For what concerns the political situation in the country, the presence of multiple centres of power implies the impossibility for Al-Sarraj to manage all the land and to honour the MoU clausula. The National government cannot control the southern borders, where instead the presence of militias and tribes is very strong. The armed militias (another delicate situation for which the arms embargo applies but not fully respected) controlling the southern border of the country, in the absence of any judicial guarantees, often capture and sell migrants as slaves, or enlist them in the armed group to fight a war which is not their own. Substantially, they cooperate with human traffickers. The fragile situation in Libya, with the continuing attacks by the General Haftar to gain the power in all the territory trying to overthrow the Al-Sarraj’s government, makes the solutions even more difficult.
At the EU level, it seems to stay at a standstill. Countries disagree about almost everything: the relocation of migrants, the reform of Dublin, with the overcoming of the principle of the “state of arrival”, the principle of solidarity, the kind of protection recognised and their criteria. There is no coherence among the single Member States actions. The latter should be implemented in compliance to the art. 80 TFEU but states want to host migrants as less as possible within their own borders. At the same time, Italy and the European Union through the externalisation of migration policy have stipulated agreements and set out funds in order to reduce the flows towards Europe. It is true that art. 79 TFEU gives competences to the Union to develop a common immigration policy aimed at ensuring the efficient management of migration flows, but the same article does not undermine the right of member states to decide the volumes of admission of third-country nationals coming from third countries to their territory. Migration is a policy field deeply based on intergovernmentalism. For this reason, decisions taken under this topic are made at Member States’ level and based on the voluntary and solidarity membership.
Of course, the actions undertaken both by Italy and EU have had effects. If we want to consider the number of migrants arrived in Libya, we can only make an estimation. According to the UN, the number was estimated to be around 700.000 in 2018, mostly young men between 18 and 30 years from sub-Saharan Africa. Of these, over 200,000 wanted to board illegally for the European coasts. Especially after the MoU (with the aim to reinforce the Libyan Coast Guard) and the accords with local tribes and countries of departure, the number of arrivals has decreased. According to statistics provided by the Ministry of Interior in Rome, in 2017 there were 109,684 migrants arrived on the Italian coasts only (we should add the ones arrived in Malta or Spain), while in 2018, after the “closing ports” politics by Matteo Salvini, arrivals have collapsed. In 2019 even less – around 11.000. A reduction of 90% compared to 2017 and 50% to 2018. 71% of the people who arrived at Italian shores are male, 9% of women, 20% were unaccompanied minors (but the personal data declared are not always verifiable). There has been a shift in the routes and in the number of people arrived on the Italian coast. Even if the migrant stock is increasing, the disembarkations have decrease.

On the one hand it could be a positive signal, on the other hand, it confronts us with an important question: if less migrants arrive in Europe than before, but as we know they are continuing to leave their country of origin, where are these migrants staying? What happens to them? Try to imagine a funnel. Here Libya acts as a filter: compared to those who arrive, only a part succeed in leaving the country and reach in the southern European coasts.
 

2. Migrants in Libya: the centres of detention

“In the first three years of validity of the Memorandum, said Marie Struthers (director of Amnesty International for Europe) – at least 40,000 people, including thousands of minors, have been intercepted at sea, brought back to Libya and subjected to unimaginable suffering”. Migrants and refugees generally enter Libya after facing a long and dangerous journey through the desert, in harsh conditions. Reaching Libya does not provide them with a respite but rather accentuates the difficulties to arrive in Europe. Libya reveals to be even worse. In the migrants’ centres, financed by Italy and European Union an estimated 4.500 people are currently in detention. Additionally, thousands more are held in « unofficial » detention centres under the control of armed militias where human conditions seem to be even worse than in the others. What we know about the daily life inside the centres comes from the testimonies of migrants who are able and lucky enough to arrive in Italy, some courageous journalists and UNHRC’s representatives which currently only have sporadic access to detention centres. Indeed, it is very difficult for the “rest of the world” to see what is happening there. Everything is checked and the army does not always permit to access in these places and gather information.
The situation in these places has been described as what the UN called in 2018 « unimaginable horrors ». The list of human rights violations is long, and it is difficult to imagine that innocent people, whose only guilt is attempting to live a better life, are victims of such a violence. Several of the internationally recognised human rights are not applied in Libya.  As told by the migrants and testified by some videos, the major part of these places lack of all basic sanitary standards, with migrants and refugees being forced to relieve themselves in buckets or outside. They remain without running water, latrines and food. The spaces are overcrowded: migrants live piled up in huge rooms with no minimum respect for privacy. Men are separated from women and children: families are split up with the difficult consequences of family reunification. The latter is a principle recognised by the international community and criteria for the asylum request in the European Union. Indeed, during the debate for the new Dublin regulation, it has been affirmed that this principle shall be implemented and effectively applied. Of course, medical treatment does not exist. The special needs of migrants and refugees in vulnerable situations, including children and pregnant women, are not addressed. The spreading of illness, proliferation of scabies and other skin infections, respiratory problems and gastro-digestive ailments are likely to occur.

For what concerns the physical abuses perpetrated, these include: rape, tortures, arbitrary detentions, slavery, forced labour and extortion at the hands of traffickers, smugglers, armed groups and state officials. Women are often beaten and sexually abused in front of other women. Especially younger women are selected and taken out of their cells by the person in control of the centre. Sometimes it happens that they become pregnant (unfortunately they sometimes die giving birth). They were systematically held captive in abusive conditions with the aim of extorting money from their families. The UNSMIL (United Nations Support Mission in Libya) received consistent testimonies from migrants and refugees about inhuman treatment and degrading conditions. The lack of medical treatment lead to frequent preventable deaths and lots of people die as aftermath of injuries and tortures. According to the cited report the tortures occurred through suspension from bars, beatings with various objects, boiling water or chemicals on victims’ bodies, electric shocks, stabbing, and shootings particularly the legs (and the list continues).
Despite the well-documented patterns of abuse against refugees and migrants by smugglers and authorities, the Libyan authorities are reluctant to give more information and have appeared largely unable to address or even recognize crimes committed under their jurisdiction. In its 2018 report, the UN affirmed that “UNSMIL also continues to receive credible information on the collusion and complicity of some representatives of state institutions, local officials, and members of armed groups nominally integrated into state institutions in smuggling and trafficking networks, while migrants and refugees interviewed by UNSMIL have described their transfers between individuals who appeared to be state officials and smugglers or traffickers”. On January 20^th, 2018, some videos started circulating on social media depicting horrific scenes of torture of asylum seekers from Sudan. One dated at the beginning of January 2020, from the sadly famous centre of detention of Bani Walid (a city in the district of Misurata), shows a young Eritrean woman hanging upside down and beaten; the video had been sent to her family in order to extort money. Other three Eritrean migrants (whose nationality could allow them to receive the international protection) died at the end of January. “When UNSMIL visited the centre on 16 May and 28 June 2017, detainees were visibly traumatized and fearful about sharing information about their treatment” . The principle of fair trial is another right not respected: each person has the right to have a fair trial, with a defence lawyer and contradictory. This procedure seems inexistent in Libya, refugees are exposed to arbitrary detention in prisons, for various accusations that go from theft, prostitution and drug-related offences to terrorism and security-related offences. Every due process right is denied. The entity is uncertain, but hundreds of foreign nationals are held in such prisons, some of them for years without charge or trial. They are, against their will, used as bargaining chip by the different factions, trapped in an escalating warzone. Corruption spreads among functionaries and allegedly collusion feeds the so called “migrant business”.
Conditions have deteriorated since renegade Libyan commander Haftar launched an offensive to capture Tripoli in April 2019 with the migrant detention centres targeted in the fighting. The most important and serious event was on July 3^rd, 2019 in Tajoura, in the periphery of Tripoli. About 40 migrants died and 130 wounded as consequence of the airstrike. Tajoura held at least 600 migrants and refugees – including women and children. The January 2020 report by the UNSMIL and the High Commissioner for the Human Rights stated that the strike was likely to have been carried out with a guided bomb from a non-Libyan aircraft. The IOM (International Organization for Migration) and UNHCR strongly condemned this attack on civilian life, calling for an immediate end to detention of migrants and refugees. In their communication, they also asked for more protection in Libya. They expressed doubts about returning migrants and refugees to Libya after their interception or rescue on the Mediterranean Sea. The SAR (Search and Rescue) operations in the Mediterranean shall bring migrants in a safe place but it seems very difficult to consider the northern-Africa country as a safe third country. However, despite the plea for better conditions and respect for the humans and refugees’ rights, the situation continues to be very critical. In conclusion, on January 30^th, Filippo Grandi announced the suspension of the activities of the UNHCR Tripoli transit centre, due to fears for the safety and protection of the people hosted in the structure, its staff and its partners.

 

3. Modify the Memorandum

Migrants’ centres, as well as the operation of the Libyan coastguard, are financed by Italy, the European Union and also by international organizations such as the UNHCR and IOM. The aim is to finance centres where migrants arrive, used like filters for Europe; while financing the coastguard means entrust Libyans of the SAR operation: they are in charge of monitoring and checking the coasts, blocking the boats used by migrants but they bring them back with accusation of illegal migration. It is not clear how much money flow from Europe goes to Africa but looking at the migrants’ conditions, doubting becomes licit.
In the Mediterranean Sea there are different national and international projects which operate in order to fight the smuggling of migrants, reduce the number of departures from Libya. On December 2019, the European Commission released the annual report of the EU Emergency Trust Fund for Africa. Since its creation, on November 2015, this EU fund has mobilised €408 million in projects in Libya. Of those 185.3 million have been destined to: strengthening protection, assistance and resilience of displaced populations in Libya; managing mixed migration flows in Libya supporting local socio-economic development; protection and emergency assistance to vulnerable and stranded migrants. In most part of these operations, the EU collaborates with the IOM. Around one fifth of the initial amount goes to integrated border management, i.e. strengthening the capacity of the Libyan authorities through trainings on search and rescue, including on human rights; protection at disembarkation points; support to integrated border and migration management in Libya. In this field the EU supports the actions already undertaken by Italy. To this list, we should add the AMIF (Asylum, Migration and Integration Fund) and the ISF (Internal Security Fund). While the previously cited is directed towards Libya, the latter are destined to the EU Member States: Italy has benefited from €1.022 billion of EU support since 2015 for the implementation and creation of different projects, both in the Italian territory and in Africa.
It appears important to explain that conditions in which migrants are forced to live in are beyond the imaginable. The problem is that European countries pay for this “service”, just as they give money to Turkey for blocking migrants from Syria. It is why several NGOs, like Amnesty International and Médecins Sans Frontières, accused the governments of paying for the violation of human rights and of doing nothing to avoid it. On the contrary they finance the horror. It is for this reason that they expressed concerns when the Memorandum was renewed without any modification. The only one in charge of controlling how the funds have been used is the so-called Operation Sophia: it trains the coastguard and is the only one that can access the Libyan area. It seems, according to a confidential report of EUNAVFOR Med, that any « monitoring activity on trained personnel must be conditional on the general improvement of the security conditions in Libya, which currently do not allow mission personnel to enter the country«. Moreover, the EU’s naval mission vessels could not take to the seas at the request of the former Italian government (the far-right League did not want migrants rescued by Operation Sophia to be dropped off in Italy). The deadline of Operation Sophia has been postponed until March 2020, but Member States have agreed to close down and replace it by a new Libya naval mission which will have a different name and area of operations. The objective is a clear demarcation line with the past, against abuses of traffickers.
This change of direction is visible also through the request of the new Italian government for some modification to the MoU. The Ministry of Foreign Affairs, Di Maio (former leader of the Italian majority party, Five Stars Movement), invoking the art. 3 of the Memorandum, has sent a letter to the Libyan government. The content is a series of amendments thought to “introduce significant innovations to guarantee more extensive protection to migrants, asylum seekers and in particular to vulnerable people who are victims of irregular trafficking through Libya and to promote management of the migration phenomenon in full compliance with the principles of the Geneva Convention and other international human rights law. This goal must be achieved, in Italian intentions, also through the consolidation of the action of the United Nations Organizations, in particular UNHCR and IOM, in Libya” as Di Maio affirmed. But no specific reference on the attempt to close the detention centres. Italy aims to respect the arms embargo and the collaboration within the EU. However, many doubts have been arising about the real possibility of improving the situation of foreigners in the country. The amendments are divided into eight points and mainly concern the presence of the UN in Libya, which shall be assisted to enhance its work of respecting the human rights in the country. On the other side, UNHCR continues to ask for a shutdown of the detention centres. The text has not been published yet, in order to avoid influencing the ongoing negotiations with the Libyans. Doubts and concerns also come from some Italian parliamentarians, who describe « the changes proposed by the foreign minister completely insufficient » and « modest additions of style that evoke human rights ». On one side, it seems that there is the will to do something but on the other side the situation is so much intricated and terrible. Closing the detention centres means increasing the arrivals which the government wants to avoid.

 
It appears obviously that these agreements are no longer sustainable. It is also very clear that European States have enormous difficulties to face the migration problem. The contradictions and frictions within EU Members are reflected outside. The countries of arrival have been forced in such a manner to stipulate a bilateral deal with African countries. In the case of Italy, the agreement object of this article was a response to the migrant pressure which, in turn, has provoked the pressure from the other states. The modifications are essentials: the debate on Dublin IV and the relocation appear to be without a solution. Italy and the European Union have to speak with a unique voice and conduct the game. They have to write the word end to the barbaric and inhuman situations at which migrants are perpetrated on. Of course, the objective of the Memorandum was not to put migrants in a difficult environment, but it seemed inevitable. The Memorandum is not the cause but obviously it contributed to creating this situation. From a certain point of view, Libya is essential to reducing the flows towards southern-Europe, acting as a filter. On the other side, it is not a safe country where migrants can remain or live. Since the country is deeply immerged in a civil war, the EU should find other solutions and proceed as soon as possible. Just condemning the tortures is not enough, but as we should better to control how funds are used otherwise, we will turn back at the same point. Of all the money destined for the migrants, only a little part is effectively used for them. Corruption spreads. Changing the MoU is possible, as it is the respect of internationally recognised rights. This should represent a focus of the new agreement. Associations and NGOs are still reluctant of the novelties that should be introduced for a change of direction for the containment of migratory flows policy. With the level of generalized violence across the country, as long as the agreement is in force, there will likely be no way to avoid exposing migrants and refugees to the risk of abuse and mistreatment. We should wait until the decision of the joint commission, hoping it will happen as soon as possible, in order to know the future of these people.
 
Alessandra Generale