Italy’s current externalisation policy and the role of Libya
Externalising migration policies is not new for Italy.
Under the terms of the Treaty of Friendship between Italy and Libya, signed by Berlusconi and Gheddafi in 2008, Italian authorities intercepted boats in international waters and transferred asylum seekers and migrants back to Libya, where they were systematically detained and frequently ill-treated. This practice came to an end following, inter alia, the European Court of Human Rights judgement in the Hirsi Jamaavs Italy (780kb pdf). That decision made it crystal clear that, for a State party to the ECHR to stop boats directed towards its coast, even if these are still outside territorial waters, does not fall outside its jurisdiction under the terms of art.1 of the Convention. It may therefore result, should all requirements be met, in a violation of art.3 (prohibition of torture) and/or of art.4 of Additional Protocol n.4 (prohibition of collective expulsion of aliens).
Starting in late 2013, Italy carried out an ambitious search and rescue operation which resulted in saving the lives of a large number of persons, most of which were subsequently transferred to Italy. This operation Mare Nostrum was, however, terminated after about one year, partly as a result of pressure from countries of final destination of migrants, which considered it to be a “pull-factor”.
The end of Mare Nostrum marked what appears to be a long-term shift in the way European governments, including successive Italian governments, handle arrivals by sea. The priority changed from rescuing people to preventing their departure. A new Memorandum of Understanding (85kb pdf) between Italy and Libya reflecting this approach, replacing the previous bilateral agreement, was signed by Gentiloni and Al-Serraj on 2 February 2017. This new agreement received the European Council's approval with the adoption of the Malta Declaration on the following day.
The new form of externalisation differs from the previous one to the extent that it is not based on extra-territoriality alone. It consists of entrusting third parties, the Libyan Coast Guard in the first place, with the task of keeping people as far away as possible from Italy’s (and Europe's) southern frontier.Uni
In other words, not only are migrants prevented from reaching European territory, but they are also prevented from having any contact whatsoever with the authorities of a European state. The aim is simply to avoid responsibility, by creating an area which is beyond the reach of international human rights law.
More specifically, the current practice is aimed at circumventing the principle of non-refoulement in both its versions - the one which is instrumental to the right to seek asylum and, to the extent that it involves entrusting the Libyan Coast Guard with the task of bringing migrants back to detention centres in Libya, the broader - "prevention of torture" - version of the principle as well.
Detailed descriptions (440kb pdf) of the dire situation of irregular migrants in Libya have been provided by a variety of credible sources and are easily available. The criminalisation of irregular entry stay and exit, and the lack of a national asylum law, as well as the fact that Libya has failed to ratify the 1951 Convention on the status of refugees, result in the fact that the only way of dealing with migration in Libya is arbitrary and indefinite mass detention. According to a report by Amnesty International (1.40Mb pdf), this "has paved the way for horrendous violations to be perpetrated in places of detention, in which refugees and migrants are at the mercy of authorities, militias, and armed groups, often working seamlessly with smugglers for financial gain." Furthermore, the report states that "the lack of any judicial oversight of the detention process and the near total impunity with which officials operate, has facilitated the institutionalization of torture and other ill-treatment in detention centres."
Entrusting Libyan institutions with the role of guardians of Italy's (and Europe's) maritime frontier, as long as the human rights situation in Libya does not change, raises a number of legal questions. First, does the principle of non-refoulement result in the prohibition of carrying out (or directly participating in) push-back operations only or does it also include delegating such operations to others?
Second, does Italy's practice of funding, providing technical assistance and training to Libyan agencies which commit torture and other serious violations of human rights amount to a form of complicity, that is, to "aid or assistance in the commission of an internationally wrongful act" under art.16 of the Articles on the Responsibility of States for Internationally Wrongful Acts (75kb pdf)?
Third, is it lawful to prevent vessels other than those of the Libyan Coast Guard (NGO vessels in particular) to carry out search and rescue (SAR) operations in the central Mediterranean? And, should these vessels be successful in rescuing people, is it lawful to prevent them from disembarking the people whose lives they have saved in Italian ports given that Libyan ports do not qualify as "places of safety"?
The answer to each of these questions requires a detailed legal analysis. Whatever the answers may be in legal terms, what is quite certain is that the human cost of Italy's current practice of externalisation is very high indeed.
Antonio Marchesi, PhD (European University Institute), is Professor of International Law in the University of Teramo (Italy) and has taught courses in international law and human rights in several other universities. His research interests include responsibility of states, human rights procedures, torture, the death penalty and international criminal justice, on which he has published several books and over fifty essays. He was Chairperson of Amnesty International Italy from 1990 to 1994 and from 2013 to 2019. As an Amnesty International delegate he has carried out research missions and attended international conferences. He has been a consultant for Amnesty International’s International Secretariat and for a number of other NGOs and IGOs including the Council of Europe and the European Union. He is currently a human rights expert on behalf of the Italian "Guarantor for the Rights of Persons Detained or Deprived of Personal Liberty" (the Italian NPM).