At least 45 people were killed in a shipwreck off the Libyan coast in August. They had been at sea for two days, trying to get to Europe to apply for refugee status. It was the largest recorded shipwreck in this area in 2020. Both the International Organization of Migration (IOM) and United Nations High Commissioner for Refugees (UNHCR) condemned the European countries involved, on the basis that it is crucial to respond to requests for help.

This shipwreck further highlights the issues surrounding migration into Europe, with European countries committed to ending so-called “illegal journeys”. These conversations feed into wider themes of increased domestic intolerance and political moves to the right. 

DOZENS OF MIGRANTS DIE IN SHIPWRECK OFF LIBYA 

Over 17,000 people have arrived in Italy and Malta this year by boat from Libya and Tunisia, a threefold increase compared to 2019. More than 300 people are known to have died trying to make this crossing in 2020, with the actual figure believed to be much higher. 

This particular shipwreck took place on August 17, with the BBC reporting that the 37 survivors, predominantly  from Senegal, Mali, Chad, and Ghana, were detained in Libya following rescue. According to IOM staff, 45 other people, including five minors, lost their lives due to the explosion of the boat’s engine.

Alarm Phone had already been alerted to the situation on August 15. According to a report by the organisation, the platform was signalled by a boat in distress with around 65 people on board, just outside Libyan territorial waters. Operators alerted the authorities several times and shared the GPS positions of the boat in danger, but it seemed that no rescue operations had been carried out. The organisation then lost contact with the dinghy. 

“We called for rescue, but all authorities rejected responsibility. Europe, this is the outcome of your policies – another mass murder in the Mediterranean Sea” writes Alarm Phone.

The result? 45 victims and 37 survivors confined in a detention centre after being rescued at sea by fishermen and brought ashore. 

UNHCR AND IOM EXPRESS THEIR CONCERN 

The UNHCR blames European countries for not rescuing travellers from sea accidents nor allowing aid ships or commercial ships to dock legally to disembark survivors. It also accused Libyan authorities of “detaining travellers arbitrarily, in inhumane conditions and in danger.” 

Italian and Maltese European coordination centres do not respond in cases of reported boats in distress, and do not intervene. They habitually delegate the issue to the so-called “Libyan coast guard.” According to the European Council on Foreign Relations (ECFR), this security force that is supposed to patrol 600 kilometres of the Libyan coast and stop the migrants is a jumble of militias and ambiguous characters, and it is a serious problem. This force often does not arrive, and, when it does, it brings migrants back to Libya, which is anything but a safe place for survivors, according to NGOs operating in the central Mediterranean. In total over 7000 people have been taken to Libya so far in 2020, as reported by the UNHCR.

Both the UNHCR and IOM are deeply concerned about the recent delays in search and rescue operations, calling for a review of the approach of involved countries to the situation after this latest tragic incident in the Mediterranean;

"We urge states to respond quickly to the occurrence of such events and to ensure a safe haven for people rescued at sea. The delays in recent months, and the lack of assistance, are unacceptable and put these people’s lives in situations of avoidable risk.” 

UNHCR and IOM argue that merchant ships should be provided with a safe harbour at which to disembark rescued passengers, if they are the closest vessels capable of providing relief. Such vessels should not be obliged to return migrants to Libya, where they would be at risk of serious human rights violations, and arbitrary post-disembarkation detention. 

There are reports of migrants being treated unspeakably in Libya, especially if they fall into the hands of militiamen and traffickers, who abuse and extort them. Furthermore, Libyan authorities shot dead three Sudanese migrants in July who tried to escape after they were intercepted by the coast guard and returned to shore, the United Nations confirmed. This violence highlights the dangers that migrants, refugees, and asylum seekers face in Libya.

Any assistance and responsibilities assigned to Libyan search and rescue entities should be made conditional on no one being arbitrarily detained, ill-treated, or subjected to human rights violations post-disembarkation. Without such guarantees, support should be reconsidered, and search and rescue responsibilities redefined. 

THE EU ABSOLVES ITSELF OF RESCUING MIGRANTS AT SEA 

Over the last few years, the EU, the Libyan coast guard, and other forces in the North African countries have worked together to slow the flow of migrants. 

Currently, Italy, Malta, and Libya have declared their ports unsafe due to the ongoing pandemic, leading to reports of boats in distress being refused help, and instances where hundreds of asylum seekers have spent weeks adrift outside harbours waiting to disembark, according to the EU's Civil Liberties Committee.

But while the COVID-19 pandemic has closed many borders, families in Libya are suffering more than ever: nothing about the horrific conditions for refugees has changed, and COVID has made it even worse. They will still try to get to Europe.

INHUMANE AGREEMENTS BETWEEN ITALY, MALTA AND THE GOVERNMENT OF TRIPOLI

The extreme vulnerability of people fleeing Libya on hazardous boats has worsened in recent months, due to the consolidation of agreements between Italy, Malta, and the government of Tripoli. There are eight articles th`t reaffirm the strong common determination to work together to find a solution to the flows of irregular migrants, underlining the importance of the "control and security of Libyan borders, land and sea, to ensure the reduction of flows as well as the fight against the trafficking of human beings." However, Libya is a country where respect for human rights cannot be ensured in any way. This is a treaty that does not seem to take into account either the conflict that makes the country increasingly insecure, nor the complaints that are multiplying over the inhumane and degrading treatment that migrants suffer. In addition, thanks to these treaties, failure to rescue in international waters has become the norm. 

In February 2017 a Memorandum of Understanding (MoU) was signed by Fayez al Serraj for the National Reconciliation Government of the State of Libya and by Paolo Gentiloni for the Italian Government. The aim was to strengthen cooperation in the management of the Libyan borders, and reduce illegal migratory flows. But that Memorandum, in violation of art. 80 of the Italian Constitution, was not subjected to a prior law authorising ratification by Parliament.

Three years after the Memorandum was signed, there are horrific results. Essentially, two main articles support this awful treatment of foreign citizens by Libya, and the reasons are briefly clarified as follows:

1.     Art. 1, Cooperation for the management of flows of irregular foreign citizens: there are no irregular and regular migrants in Libya: all foreign citizens are indicted for illegal entry, stay, or exit from the country, and punished with generalised and indefinite detention. Libya has no asylum law, has not ratified the 1951 Geneva Convention on Refugee Status, and has not formally recognised the United Nations High Commissioner for Refugees (UNHCR). Therefore, foreign citizens, even in vulnerable conditions – including victims of trafficking in human beings or refugees – can be systematically subjected to indefinite detention and all kinds of violations.

2.     Art. 2, Improvement of detention centres, through funding to international and non-governmental organizations: Libya and Italy have promised to improve the detention centres, but in fact they are all run by Libya, and the conditions are dreadful. Foreign citizens are detained in conditions of very serious physical and psychological prostration. 

THE ITALIAN GOVERNMENT CONTINUES TO FINANCE THE LIBYAN COAST GUARD

Italy, without placing any human rights conditions on the Libyan authorities, has provided Libya with ten naval units, financed the refurbishment of four patrol boats, ensured the presence of a ship moored at the port of Tripoli to carry out interceptions at sea, and ordered the supply of equipment, training, and technical and technological assistance. 

€150 million. This is the amount that Italy has spent in just over two years to help Libya manage the situation of migrant refugees, as reported by Oxfam. The Italian Government has continued to finance the training of local personnel in official detention centres and the supplied the Libyan Coastguard, despite the evidence of inhumane conditions for migrants in the country.

Thanks to these interventions, the European Commission was able to declare a drop in the number of departures from Libya of 90%.  

However, this data is not an indication that fewer migrants are attempting to make the journey. The number of departures has reduced partly because the Libyans are locking more people up. This should not be celebrated, due to the dire conditions in detention. The indiscriminate use of detention in Libya – a consequence of the European policies of externalization of borders – involves serious violations of human rights and prevents the exercise of the right of asylum. Those imprisoned – who according to various reports can number between 10,000 – 20,000 at any given time – often face severe abuses, including rape and torture, extortion, forced labour, slavery, poor living conditions, and extra-judicial execution.

For this reason, the ASGI (Associazione Studi Giuridici Immigrazione – Immigration Legal Studies Association) has stressed that “the strengthening of the Libyan authorities through Italian and European funding is contrary to national and EU regulations.” Moreover, “through support for the so-called Libyan Coast Guard, the Italian government seeks immunity from heavy legal responsibilities.”

Furthermore, the closure of the detention centres cannot be replaced by the creation of centres managed by IOM and UNHCR: these organizations do not have the political ability to grant asylum, so are simply a temporary fix. Migrants must be able to easily and safely reach the countries of the European Union where they can apply for asylum or be admitted to other forms of protection where possible.

Nevertheless, the 2017 Memorandum of Understanding (MoU) between Italy and Libya was tacitly renewed without amendments in February 2020. The renewal of the accord is "beyond comprehension" for Amnesty International. According to the NGO, this "odious" agreement ignores the "suffering inflicted" on migrants in Libya. "Italy decided to update this memorandum even though the situation in Libya is still catastrophic, even worse than three years ago. This is shocking," Lola Schulmann, Amnesty International's refugee and migrant advocacy officer, told InfoMigrants.

FORTRESS EUROPE: WHY THE EU WANTS TO STOP ILLEGAL MIGRATION

Why does Europe, and Italy in particular, want illegal migration to stop? What is the political rationale for the above-mentioned Memorandum of Understanding? The focus on reducing illegal migration is symptomatic of several political themes.

Since the 1990s, the well-established state-security model has served as the dominant paradigm for international relations; namely, migration has increasingly been treated as a “border security” issue in Europe, especially with the association between migration and terrorism. In certain parts of the world, policy on irregular migration is driven by the perception (whether accurate or not) that countries risk being “overwhelmed” by large numbers of irregular migrants who are a threat to states and society. Consequently, countries introduced very strict control measures at the borders, which constitute the so-called “security approach”, without recognizing the need to protect the rights of irregular migrants. In attempting to reconcile state security and human security, states have often prioritised the former above the latter. Noticeably, the border is seen as vulnerable, while the people crossing it are taken as a threat. 

Nonetheless, even when governments refer to the public safety or order of a country, there are also a number of non-derogable rights applicable to all human beings, including non-discrimination on the basis of race, colour, sex, language, religion or social origin; the right to life; the prohibition of torture, slavery and servitude; the right to recognition before the law, and the freedom of thought, conscience and religion. 

This lethal game against migrants is not just the work of singular politicians, but that of an entire regime. It is systematic. The stopping of illegal migration in the Mediterranean is symptomatic of larger political movements, especially moves to the extreme right.

From the indefinite containment in what Amnesty International called “insecure and undignified” camps in Greece and Italy, to pushbacks of migrants toward the hell of Libya, and from increasingly perilous routes across the Sahara to the avoidable mass drownings in the Mediterranean, Europe’s so-called fight against illegal migration has fuelled abuses that undermine the EU’s global role and its avowed values. This crisis mentality has fuelled a sense of obstruction and threat that only benefit the far-right. In winning its self-proclaimed fight against migration, the EU is destabilising the values supposedly grounding the European project, and corroding its diplomatic influence and authority abroad. 

The closure of legal pathways into Europe has strongly contributed to the development of irregular land and sea entry routes in the past two and a half decades. While the migratory flow along these routes has long been small in comparison with other entry methods, large sums have been spent on manpower and technology to keep people out even before the latest sharp increase amid the global refugee crisis. Hitherto, the reduction in legal migratory routes, and increased crackdown on illegal routes has only served to drive people towards more dangerous methods of reaching Europe.

Human mobility is in itself not a threat to anybody's safety. In fact, the risks associated with its most chaotic manifestations are perversely caused by the same security measures rolled out to stop it. 

ITS A DUTY TO SAVE LIVES AT SEA

Further to the moral implications of reducing help for migrants, European countries are actually breaking international law and universal human rights. From a legal standpoint, nation states can control their borders and refuse migrants to enter under certain conditions. However, states have clear obligations towards refugees and migrants before they cross the border, including assistance at sea.

There is a duty pursuant to international law for a ship to attempt the rescue of persons at danger at sea. This duty is based on a long-standing and strongly felt moral obligation among seafarers. This is stated, for example, in the United Nations Convention of the Law of the Sea (UNCLOS) Article 98 the International Convention for the Safety of Life at Sea (SOLAS), Regulation V-33. All states recognise this duty.

One implication of this rule is that states must accept that their vessels engage in rescue operations. In the International Convention on Maritime Search and Rescue (SAR), coastal states undertake the role to coordinate the SAR in respect of persons in specified areas (Article 2.3).

In conclusion, non-assistance to refugees and migrants at sea is not a legal option. When they are rescued, this entails some obligations for the rescuer and the states having jurisdiction over the rescuer. These obligations prevent disembarkation in an unsafe port and include a responsibility for protecting human rights of the rescues.

Europe is currently taking advantage of the pandemic, as a pretext to leave desperate people adrift, yet this is the latest excuse in a long line. And here, in the cradle of our civilization, a real barbarism is consumed. Because the EU – a supranational organization that is committed to protecting fundamental rights, at least on paper – knows these stories well, one by one.

Giulia is holds a Master's Degree in International Cooperation on Human Rights from the University of Bologna. She has a Bachelor's in Philosophy. Her fields of interest are immigration and refugee law, particularly related to unaccompanied foreign minors. She would love to work at the United Nations in the future.

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