by Lea Main-Klingst
Last time I discussed the international framework underlying the right to seek asylum and the principle of non-refoulement vis-à-vis a sovereign State’s right to regulate who can enter its territory. As I concluded, there is a tension between the rights of a person fleeing violence or persecution to seek (and be granted) asylum and a State’s right to regulate its borders, with States increasingly regulating their borders in a manner that makes (legal/regular) access to its territory more difficult, if not impossible.
I noted last week that in the European context, the Central Mediterranean route has once again become the most prominent flight route, with Italy being the EU Member State having primary responsibility, being overburdened and once again entering into cooperation agreements with Libya.
The position of the European Court of Human Rights
Such agreements formed the focus of the European Court of Human Rights’ 2012 Hirsi judgment. In Hirsi, the Court was asked whether the applicants fell under Italian jurisdiction (i.e. whether the Italian authorities aboard the ships had exercised “absolute and exclusive control” over the applicants) and if, as a consequence, the Italian State had violated its obligations under the European Convention of Human Rights (the Convention).
On 6 May 2009, after having departed from Libya to Italy, the applicants, a group of 11 Somali and 13 Eritrean nationals, were intercepted by three ships of the Italian Coastguard and Revenue Police (in the Maltese Search and Rescue Region (SRR)). The applicants were then transferred onto the Italian military ships and returned to Tripoli, without having been informed of their return or having been afforded the opportunity to make any claims for international protection.
In its assessment, the Court noted that “the jurisdiction of a State, within the meaning of Article 1, is essentially territorial,” but also acknowledged that the jurisdiction of a State could be engaged in an extraterritorial context, “whenever the State through its agents, cooperating outside its territory exercises control and authority over an individual”.  The Court remarked that “the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel.” It went on to conclude that the applicants had been under “the continuous and exclusive de jure and de facto control of the Italian authorities,” meaning that the Court was permitted to determine whether the alleged Convention violations had occurred.
In its assessment of whether Italy had violated any Articles of the Convention, the Court held that there had been a violation of:
- Article 3 (Prohibition of torture and other inhuman or degrading treatment);
- Article 4 of Protocol No. 4 (Prohibition on collective expulsion); and
- Article 13 (right to an effective remedy).
In its consideration of the alleged violations, the Court engaged in an assessment of the situation in Libya and made several important findings of fact. It noted that the reports and testimonies presented to it by Claimants and third parties painted “a disturbing picture of the treatment meted out to clandestine immigrants in Libya”. It found that people “were systematically arrested and detained in conditions that outside visitors (…) could only describe as inhuman.” The Court also made reference to the evidence of “torture, poor hygiene conditions and lack of appropriate medical care”.
In relation to the arguments made on collective expulsion, the Court made further important findings.
- First it noted that “the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances … If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States … a significant component of contemporary migratory patterns” would fall outside the protection guaranteed by that Article and that those traveling by sea would not be afforded an examination of their personal circumstances.
- It went on to state that “the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention…” and that “problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention.”
The Court thus used very strong words to establish that (1) the Italian State had exercised jurisdiction over the applicants and (2) that the high seas were not a space in which States were free from their human rights obligations. It thus dismissed the claims by Italy that its actions had been undertaken in line with the principle of cooperation between States, based on the bilateral agreements it had concluded with Libya in an effort to curb “clandestine immigration” and break the human trafficking and smuggling cycles.
More recently, in N.D. and N.T. v Spain, the Court rejected similarly misleading attempts made by Spain in an attempt to circumvent its jurisdiction. The applicants (a Malian and an Ivorian national) had attempted to enter Spanish territory by climbing the barriers that surround the Spanish enclave of Melilla, bordering Morocco. In their attempt, the applicants were arrested by the Spanish Guardia Civil, handcuffed and returned to Morocco without an assessment of their personal circumstances. Before the Court, the applicants complained, once again, of a violation of the prohibition on collective expulsion under Article 4 of Protocol No. 4 as well as Article 13, the right to an effective remedy.
In its judgment, the Court considered arguments made by Spain that the events had occurred outside its jurisdiction, as the applicants had been unsuccessful in their attempt to scale the barriers and thus never physically entered Spanish territory. The Government also argued that the applicants could not be considered victims, as they had attempted to enter Spanish territory unlawfully. Dismissing Spanish attempts to avoid jurisdiction, the Court found that it was unnecessary to establish whether the border crossing was located on Spanish territory and went on to consider, as it did in Hirsi, whether the authorities had exercised effective control over the individuals concerned.
It went on to hold that the Spanish State had exercised de jure control over the applicants, doing away with any attempts by the Spanish State to avoid jurisdiction and seriously putting into question State practices that impede or prevent access to asylum procedures.
This is significant, as it signals that States are under an obligation to ensure that the right to apply for asylum is guaranteed by its border officials and that pushing people back without examination of their personal circumstances violates the Convention. The Court has thus been very clear in reiterating the findings it made in Hirsi, that pressures to manage migratory flows did not justify departure from the principles and the rights guaranteed by the Convention, be it at border fences or on the high seas.
Working in the Mediterranean
In August 2017, I spent three weeks aboard the Aquarius, the rescue ship operated jointly by SOS MEDITERRANEE and MSF. You can read more about my experience here and here. Since launching operations in February 2016, the teams aboard the Aquarius have saved more than 24,000 lives. The Aquarius is only one of several NGO rescue vessels operating in international waters between Italy and Libya.
During my time on board I had the opportunity to speak to people about the experiences of their flight; people of all ages and walks of life coming from Eritrea, Libya, Morocco, Sudan. Despite finding themselves aboard a rescue vessel in the Mediterranean, the only other thing that they had in common was their testimony of Libya. In a previous blog post, I have commented on the situation in Libya and the EU’s willingness to cooperate with the government of Libya. This position cannot be stressed enough. Recent reports by Oxfam, the UNSC and MSF as well as a CNN video of a slave auction have all underlined the same issues and cycles of abuse.
These human rights abuses are now well documented and leave no room for doubt about the daily suffering of those trapped in Libya. The stories of the survivors expose a very clear pattern. Prior to the fall of Gadhafi in 2011, many people initially left for Libya in the hopes of finding work or security there, but with the downfall of the regime a struggle for power erupted between different factions, resulting in random violence and impunity. There are also those that travel to Libya purely in the hopes of reaching Europe. They too find themselves caught in the cycles of abuse.
The following are excerpts from testimonies collected aboard the Aquarius, which offer harrowing accounts of the violence people experience on a daily basis. People are generally transported through the desert before reaching Libya. Upon arrival more often than not, they end up in detention centres: “The life conditions there are horrible. You don’t get any food, and there are hundreds or thousands of people in very small spaces.” People are tortured to demand ransom: “Most of the time what happens is that they ask you for money: if you don’t give it to them they torture you, and if you do they will sell you to other groups and bring you to other centers.” They may also “force you to call your parents, they give you a phone and you call your family, so that they pay money for you to go free. Mostly, they will not let you go, even if your family sends money.” Only few migrants find themselves outside these detention centres, working. Those that do are often not paid what they were promised, or paid at all. Women are raped regularly, as are men – as was revealed by a recent report. For most people, taking a boat to Europe is the only way to escape, possibly the only way to survive.
On 14 November 2017, the UN High Commissioner for Human Rights remarked remarked that “the suffering of migrants detained in Libya is an outrage to the conscience of humanity.”
We have seen from the above findings in Hirsi that these human rights abuses are by no means a new occurrence and have persisted for at least the past decade. While all this is well documented, what continues to be missing is concerted State action to aid those trapped in Libya, instead of focusing on keeping people there. In that same press release of 14 November 2017, the High Commissioner noted that: “the European Union’s policy of assisting the Libyan Coast Guard to intercept and return migrants in the Mediterranean was inhuman.”
Cooperating with the Libyan Coast Guard
On 10 August 2017, the Libyan navy publicly announced that it was reasserting its Search-and-Rescue (SAR) zone (also known as SRR – Search and Rescue Region), simultaneously warning the SAR NGOs not to enter the unspecified zone without permission. In line with this announcement, it conveyed the necessary information to the International Maritime Organization (IMO), where its application is reportedly still pending. SAR zones must be claimed in accordance with the guidelines of the IMO, which also stipulate that an English-speaking 24-hour MRCC must be staffed.
Both the European Union and Italy have expressed their support for the establishment of a Libyan MRCC, and provide training and financial support to the Libyan Coast Guard. European Council President Donald Tusk has applauded Italy’s efforts, promising “stronger support for Italy’s work with the Libyan authorities. We have a real chance of closing the Central Mediterranean route”– but at what cost? Heightened activity by the LCG raises several issues/concerns:
- where will those intercepted by the LCG be disembarked?
- What about the principle of non-refoulement and the port of safety concept?
- Who will be held accountable when abuses and violations occur?
These issues will be examined in more detail in next week’s post. For now, it suffices to say that the above evidence should make it clear that Libya is not a place that is able or willing to provide even the most basic forms of protection.
What we have learned about Libya
Among the material considered by the Court in Hirsi was a press release by the then United Nations High Commissioner for Refugees, Antonio Guterres, of 7 May 2009. In it he expressed concern that people were being “sent back to Libya without proper assessment of their possible protection needs,” drawing attention to the fact that “Libya has not signed the 1951 UN Refugee Convention, and does not have a functioning national asylum system.” Furthermore, Libyan law criminalises irregular entry, stay, or departure, providing for indefinite detention and deportation of those in breach of its immigration rules.
In the eight and a half years since this press release was issued, Libya has remained in turmoil. It has still not become a party to the Refugee Convention, nor has it set up a functioning national asylum system. It is disappointing to see that despite warnings stretching back to at least 2009, States continue to disregard the situation in Libya, finding new ways of circumventing their obligations to refugees, all at the cost of human lives.