The EU deal with Libya on migration: a question of fairness and effectiveness

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Heritage/AGF

The Mediterranean sea between Libya and Italy

On the eve of the 3 February EU summit in Malta, the President of the EU Council Donald Tusk promised the closure of the Central Mediterranean migration route into Europe. The summit produced a memorandum of understanding between the Italian and internationally-recognised Libyan government that aims exactly at that. Whether it will work and whether it will respect migrants’ rights, as stated in the Council’s final communiqué, is an open question with the answer likely to be no.

This new agreement has been compared to the 2016 EU-Turkey deal, but if the agreement with Turkish President Recep Tayyip Erdogan raised some questions over the respect of the human rights of migrants, in Libya’s case the violations of basic rights are almost certain and the doubts about implementation are more than legitimate.

This is not really an EU-Libya deal, rather the EU endorsement of a bilateral memorandum of understanding between Italy and the Presidency Council of Libya headed by Faiez Serraj. This is one of three Libyan rival governments together with the House of Representatives in Tobruk (which labeled the memorandum as illegitimate) and the unrecognized and Islamist-leaning National Salvation Government in Tripoli. Angela Merkel had raised concerns over the reliability of the EU’s interlocutor, given that Serraj’s government hardly controls even its own capital.

The memorandum contains three main elements: first, it restarts full implementation of the 2008 Friendship Treaty between Italy and Libya which already included a big chapter (and funding) on migration containment; second, it boosts support to the Libyan Navy and Coast Guard in order to rescue as many migrant boats as possible in Libyan territorial waters; third, it provides funds to improve healthcare in the detention centers where migrants are locked once they are rescued by the Libyan Coast Guard. The memorandum does not mention respect of international conventions (it only refers to International Customary Law), nor does it establish an independent monitoring mechanism.

Libyan law does not distinguish between migrants and asylum-seekers as Libya is not a party to the Geneva Convention. According to the laws approved under former Libyan leader Muammar Gaddafi, all individuals arriving without a permit are deemed illegal migrants and jailed.

It is commonly thought that the Central Mediterranean route, of which Libya is the main country of transit, is mostly a route for economic migrants, but this is not supported by facts: 39% of the migrants from this route who are examined by Italian asylum panels receive either refugee status or humanitarian protection, a lesser and more temporary form of protection. According to the UN Refugee Agency (UNHCR), 45% of those who pass through this route meet European standards for refugee status. Even for those who do not fall into these criteria, who are commonly referred to as economic migrants, there are rights and obligations to be respected: a migrant cannot be unlawfully detained, he or she cannot be raped or tortured, and he or she is entitled to all basic human rights.

Violations of these rights are one of the most important “push factors” in migration to Europe through Libya. Africans who arrive in Libya are systematically harassed, unlawfully detained (inside or outside official detention centers), forced into slavery, raped and in many cases killed – the Islamic State built its fame in Libya by killing first Egyptian Coptic migrants and then Eritreans. The fear for their lives and their dignity is what pushes Africans to try to cross the Mediterranean as quickly as possible, while a large percentage of those who have arrived in the EU reported being forced onto the boats. Further compounding their desire to leave is the drop in economic opportunities in Libya, which just until three years ago hosted between 1.3 and 1.7 million economic migrants, a figure that is now estimated to average around 700,000. Data from the International Organization for Migration (IOM) demonstrates how the duration of stay of African migrants in Libya before their crossing to Europe has drastically shortened in a few years and is now in many cases just a matter of weeks.

Ultimately, violations of rights are not the price to be paid in order to reduce flows, rather  the opposite: increased flows to Europe are the result of violations of rights and the lack of economic opportunities for migrants in Libya.

In revamping the 2008 deal signed by former Italian leader Silvio Berlusconi and Gaddafi and by boosting the capacity of the Libyans to rescue migrants and lock them into detention centers, the EU-supported Italy-Libya memorandum of understanding builds upon established European policies that aim to bring flows as close to zero as possible and are ready for massive pushbacks. It is not far fetched to thinkthat the more the Libyan Coast Guard will be able to rescue migrants in Libyan territorial waters and lock them up in detention centers, the lower the number of those who will be rescued by EU boats and processed on EU territory where they can claim asylum. The deal does not formally establish a policy of pushbacks, this is what Italy did under Berlusconi when it was finally deemed illegal by EU courts. More cleverly, the new deal sanctioned in Malta outsources the pushbacks to the fledgling Libyan authorities, thus allowing President Tusk to promise the closure of the Central Mediterranean route, much like the EU did with the Eastern Mediterranean route almost one year ago.

The haste of this deal reflects the urge in European capitals to do something decisive on migration and do it quickly. For Rome, this is the result of the lack of solidarity from European partners in managing the 2016 flow of 180,000 migrants from Libya. In Paris, Berlin and elsewhere, there is stringent concern over the potential impact of a new refugee crisis on the upcoming elections. For Central European countries like Hungary, the closure of the last migration route into Europe is a vindication of Prime Minister Viktor Orban’s policy of pushbacks since the early days of the refugee crisis in 2015.

It is legitimate to wonder whether the deal with Libya will work. Despite all the possible EU support, the capacity of the Libyan Coast Guard is limited and a large percentage of migrants are expected to slip through the net. Detention centers in Libya also have limited capacity and this could lead to the release of hundreds to make space for new arrivals. Local communities will hardly be happy about it, as some mayors have already said – and these mayors should be Europe’s main interlocutor in stabilization efforts. IOM and UNHCR already have very limited access to detention centers, therefore any claim by EU officials of “processing” and “extraction” of the migrants more in need could prove delusionary.

Alternative policies are possible if European leaders are ready to make more pragmatic but also politically riskier decisions. Improving the conditions of migrants in Libya can expand their period of stay in the country and therefore shorten the turnover and the flows to Europe. Some circular legal migration to Europe through more visas and work permits can deprive smugglers of their clients, in some cases of their best-paying clients. Stabilization in parts of Libya can increase its absorption capacity of economic migrants. Safe and legal channels for asylum seekers can be built, further reducing the numbers of those who use smugglers.

Of course, these are all policies that respond to the stated EU goal of destroying the business model of smugglers. If the goal is only to cut the number of those arriving in Europe through an indiscriminate pushback then the Italy-Libya deal is the way ahead, though it will hardly bring those numbers to zero. What will be left of European values is another issue, but it does not seem to be high on the agenda at the moment.