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July 31, 2017
On May 25, a Libyan coastguard unit opened fire on Europe-bound boats full of refugees while rescue attempts were under way. Two Libyan coastguards were also accused of looting the boats, taking phones, money, and other belongings from the passengers. The incident raised serious concern over the basic rights of migrants and refugees and the role of foreign partners responsible for building Libyan state capacity. Since then, the European Union (EU) held its Foreign Affairs Council meeting in Brussels on July 17, but efforts focused on stemming the tide of migrants and targeting human smugglers rather than addressing the causes of migrant mistreatment, adherent to international law regarding refugees, or holding Libyan coastguard units accountable for their conduct.

The largest flow of modern migration in Africa currently runs through Libya. The International Organization for Migration (IOM) says an estimated seven hundred thousand to one million migrants are present currently in Libya, coming from countries including Egypt, Niger, Sudan, Nigeria, Bangladesh, Syria, and Mali. Prior to 2011, Libya was considered a destination country for many migrants. In its current state of lawlessness and instability following the overthrow of Muammar al-Qaddafi, however, it has now become a gateway to Europe for most migrants. Under Qaddafi, Libya worked closely with Europe to reach an agreement deterring the flow of migrants across the Mediterranean. Today, the state collapse in Libya that marks the post-Qaddafi era, Libya has weakened border control and led to what many call Europe’s worst migration crisis.

Following the 2011 uprising, Libya’s coastguard had neither the proper training nor vessels to conduct rescue missions. In May 2015, the EU launched the “European Union Naval Force Mediterranean” (EUNAVFOR Med)—also known as Operation Sophia—with the goal of identifying and disposing of ships used by traffickers. The program grew in scope in June 2016 to encompass capacity building and training of the Libyan coastguard and navy and again this week to include imposing sanctions on human traffickers. Italy, which bears the brunt of the migration crisis, has offered the majority of this support, including technical skills, CPR trainings, and workshops on the appropriate treatment of migrants. The EU has also offered assistance to the Libyan coastguard primarily under the justification of saving lives, but material assistance has fallen short. For example, two out of the four long-awaited vessels received from Italy in May had mechanical problems and one broke down before reaching Tripoli.

Despite some successful rescue operations, the United Nations and many humanitarian groups, including Human Rights Watch and Amnesty International (which recently released a report on this topic), have repeatedly accused the coastguard of endangering refugees’ lives, among other serious human rights violations. The latest UN Panel of Experts on Libya report to the Security Council revealed a disturbing trend in the Libyan coastguard. According to the report,

Abuses against migrants were widely reported, including executions, torture and deprivation of food, water and access to sanitation. The International Organization for Migration also reported enslavement of sub-Saharan migrants. Smugglers, as well as the Department to Counter Illegal Migration and the coastguard, are directly involved in such grave human right violations.

A 2016 report by the Office of the High Commissioner for Human Rights observed that coastguard officers have been accused of taking captured migrants to either detention centers or, in some instances, private homes. Migrants held at overcrowded detention centers are subjected to forced labor, torture, rape, and poor living conditions where they have no access to proper facilities, food, or clean water. In some cases, migrants are held for months or years, with no knowledge of when or if they will be released, and without access to lawyers. They also have no access to healthcare in these detention centers, as doctors have refused to treat them out of fear of possible infectious diseases and their inability to pay.

The EU-backed Libyan coastguard has thus failed to protect migrants’ rights and needs significant reform. Because of the EU’s assistance and involvement in training the Libyan coastguard, the EU has the responsibility to ensure that the Libyan coastguard is upholding international standards and protecting the rights of migrants.

In enabling search-and-rescue missions Operation Sophia increases the ability of the Libyan coastguard to prevent migrants from leaving Libya, making it extremely difficult for migrants to reach Europe and to apply for asylum there. Not surprisingly, its overall functioning has been critiqued as an anti-migrant operation. IOM data reveals that the Libyan coastguard intercepted and returned 18,904 migrants to Libya in 2016. The Libyan coastguard has also interfered in ongoing rescue missions and threatened the lives of migrants through unprofessional conduct, as the May 25th incident illustrates. In sum, this policy has led to a large number of refugees and other migrants returned to Libya where they face abuse and mistreatment.

A decision by the European Union’s Foreign Affairs Council to introduce restrictions on the export and supply of inflatable boats and outboard motors to Libya, within the framework of European Union sanctions on Libya, was justified on the grounds of combating trafficking. More broadly, however, the policy is clearly designed to further limit the ability of migrants to leave Libya.

International legal commitments prevent the EU and Libya from returning migrants to a place where they would face the risk of human rights violations. European states are under an obligation to respect the principle of nonrefoulement, which requires that persons not be returned to a country where their life or freedom would be threatened, or where they would otherwise be subject to serious rights violations or persecution. The obligation flows from numerous sources, including the 1951 United Nations Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, the Convention Against Torture, and the European Convention on Human Rights. The European Court of Human Rights, for instance, has found Italy in violation of the European Convention due to its return to Libya of migrants found adrift in the Mediterranean in 2009. The International Convention on Maritime Search and Rescue, to which European states and Libya are parties, further requires that survivors rescued at sea be delivered to places of safety; Libya clearly does not qualify, given its record of extensive violations of migrants’ rights.

Training the Libyan coastguard to return migrants and refugees to Libya (or prevent them from leaving in the first place) offers a means for European authorities to deny responsibility for preventing migrant flows and returning migrants to Libya—actions that would constitute violations of numerous international legal commitments if undertaken by EU member state authorities directly. International human rights obligations, however, do not only attach to violations that state authorities undertake directly. They also extend to acts that produce extraterritorial effects, where those effects are sufficiently proximate or foreseeable. Migrants and refugees fleeing to Europe from Libya already risk death and abuse as they transit through Libya. The continuation of such violations is both a proximate and a foreseeable result of providing training, supporting, and assisting to the Libyan coastguard aimed at preventing migrants from leaving. In essence, the continued policy results in refoulement-by-proxy.

In order to comply with their human rights obligations, any European support programs should maintain a human rights focus. Technical assistance programs should work to ensure the compliance of Libyan authorities with their international obligations to respect migrants’ rights. An accountability mechanism that would provide oversight of naval and border control activity would also lessen the EU’s and Libya’s liability risk. Having an adequate number of vessels deployed along routes taken by refugees and migrant boats is crucial—both in the central Mediterranean and along the Libyan territorial borders—to monitor the Libyan coastguard’s compliance with international law and ensure that rescue missions can extend into more areas. Crucially, civilian vessels, including boats operated by NGOs, must also be left to conduct search and rescue operations in Libyan territorial waters unhindered by Libyan authorities. As European authorities work to ensure better respect for human rights in Libya, it is important that safe channels be established through which the most vulnerable can seek asylum in Europe.

Reaching a long-term solution for the migration crisis will require a plan that addresses root causes, focused on solving conflicts and disasters in migrants’ war-torn home countries, thereby providing a safe environment with better opportunities. At the same time, the EU should increase its efforts to the resolve the conflict in Libya, restore the rule of law, and reform the existing state structure in order to make Libya a safer place for both Libyans and migrants alike.

Hadeel Elaradi is a Libya researcher for the Arab Center for the Promotion of Human Rights.

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