In 2019, 11,471 refugees and migrants undertook dangerous journeys in overcrowded, unsafe dinghies to reach ports in Italy. This marks a drastic 94% decrease in sea arrivals compared to 2016. Despite this significant reduction, Italy’s immigration policy is marked by criminalising NGOs that engage in Search and Rescue operations (“SAR”), prohibiting disembarkation of rescued boat people and continuing coordination with Libya. Such factors have contributed in turning the Mediterranean into a vast migrant cemetery. The United Nations High Commissioner for Refugees (“UNHCR”) reported that the number of drownings as a proportion of arrivals from Libya to Europe increased from 2.52% in 2016 to 10.8% in 2019.
In such a situation, it becomes extremely pertinent to evaluate Italy’s immigration policies against international law standards. This post argues that Italy is violating international law because: (1) disembarkation of refugees and their subsequent detention in Libya violates the principle of non-refoulement, and (2) Italy is responsible under Article 16 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts for aiding and assisting the Libyan Coastguard.
Italy’s current response to migrants and refugees in view of the Hirsi Jamaa judgment
The recent case filed by Global Legal Action Network with the UN Human Rights Committee, challenged Italy’s practice of privatising the push-back of refugees, indicating the continuance of Italy’s ‘closed port’ policy that had grown stronger under the reign of former interior minister, Matteo Salvini.
Under the Dublin system, the responsibility for evaluating an asylum seeker’s protection claim rests on the country of first entry: nations near the Mediterranean Sea and at the eastern border. Consequently, Italy is often the first European Union country to process applications of asylum seekers coming from North Africa. Italy’s leaders have repeatedly criticised the Dublin System for disproportionately burdening them with a mass influx of applications. This failure of the Dublin System has contributed to the construction of the so-called ‘Fortress Europe’. [See Ashley Armstrong, How the Dublin System Fueled Fortress Europe, 20 Chi. J. Int’l L. 17-18 (2019)].
After the Hirsi Jamaa judgment, which prohibited Italy from intercepting and collectively expelling migrants or asylum seekers to another state, Italy started engaging in pull-back operations with Libyan authorities to escape direct liability. This cooperation between Italy and Libya has been under the aegis of the Memorandum of Understanding (“MoU”) of 2017. According to the MoU, Italy has externalised the control of Italian borders by giving material and financial assistance to Libyan authorities to prevent boat people from reaching Italian borders. Furthermore, Italy has scaled back SAR operations in an attempt to securitise its borders. Several NGOs and humanitarian organisations have tried to fill this gap. However, Italy has responded by criminalising the conduct of humanitarian ships and enacting restrictive codes of conduct.
Italy’s “Fortress Europe” mentality focuses on its right to control its borders and its law enforcement powers under the law of the sea. However, in the Hirsi Jamaa case, the European Court of Human Rights (ECtHR) recognised that a state’s human rights obligations are not affected by its rights and obligations under other legal regimes. According to the United Nations Convention on the Law of the Sea, a coastal state’s sovereignty over its territorial waters and its exercise of jurisdiction on the high seas is subject to “other rules of international law” (Articles 2, 19, 21, 87). Thus, the international law governing conduct at sea should be interpreted in consonance with refugee laws and international human rights obligations.
Disembarkation of refugees and asylum seekers and their subsequent detention in Libya violates the principle of non-refoulement
The obligation of non-refoulement, firmly anchored in Article 33(1) of the Refugee Convention, is a cardinal principle of customary international law. The principle of non-refoulement applies to asylum seekers, irrespective of whether they have been formally recognised as refugees. Non-refoulement prohibits returning intercepted people to states where they would be at a real risk of persecution or face a probability of being returned to a country where they would be persecuted (see here for non-refoulement at sea).
Libya has not ratified the 1951 Refugee Convention and does not have a national asylum system. Moreover, in Libya, there are inadequate guarantees protecting people from being arbitrarily returned to their countries of origin (Hirsi, ¶156). In June 2019, the SAR ship Sea Watch 3 refused to disembark people in Libya because it did not deem Libya a ‘place of safety.’ Human rights organisations have also noted that Libya conducts collective expulsions of asylum seekers to their countries of origin, leading to chain refoulement (Hirsi, ¶143). Thus, disembarkation in Libya breaches Italy’s non-refoulement obligation because the intercepted asylum seekers face a foreseeable possibility of being sent back to their countries of origin.
Non-refoulement obligation, entailed in international human rights law, is breached when an individual is expelled to a country where there is a significant risk that they will be subjected to torture or cruel, inhuman or degrading treatment or punishment. This right is a core human right, recognised in Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), Article 3 of the Convention Against Torture (“CAT”), Article 5 of the Universal Declaration of Human Rights, and Article 3 of the European Convention for Human Rights.
Interceptions by the Libyan coastguard result in automatic transfers to the detention centres where asylum seekers are forced to stay for prolonged periods of time. Such arbitrary detention violates the right to liberty and security under Article 9 of the ICCPR. The UNHCR has reported Libya to be unsafe, due to its political instability and reports of serious human rights violations. A Human Rights Watch’s report documented people living in overcrowded and inhumane conditions in Libyan detention centres, facing inadequate nutrition and healthcare, as well as torture inflicted by guards. The lack of effective judicial review, as recorded in the report, also violates Article 2(3) of ICCPR. Thus, cumulatively, conditions in the Libyan detention centres debase an individual and constitute inhuman and degrading treatment.
Italy is responsible under Article 16 of ARSIWA for aiding and assisting the Libyan Coastguard in interdicting and detaining refugees and asylum seekers
Human rights obligations are engaged whenever a state has full and effective control over people (Hirsi, ¶69-74). A state can exercise de facto or de jure control over people aboard a vessel at sea (UNHCR’s advisory opinion, para. 24). However, since most of the interdictions are being carried out in Libya’s SRR by Libyan coastguard, Italy cannot be said to exercise de facto or de jure control over the boat people, and thus cannot be held directly accountable.
However, as argued by Amnesty International and Mariagiulia Giuffré, Italy can still be held internationally responsible for aiding and assisting Libya in interdiction and detention of asylum seekers under Article 16 of ARSIWA, which establishes that a state which assists another state in the commission of an internationally wrongful act may be held responsible for doing so (see K. Nahapetian, Confronting State Complicity in International Law, 7 UCLA J. Int’l L. & Foreign Aff. 99, 104 (2002)).
In order to establish the responsibility of the assisting state, three elements are required: (i) Knowledge: the assisting state should be aware of the conditions that make the conduct of the assisted state internationally wrongful; (ii) Connection: the assistance must be given with a view to facilitate the commission of the internationally wrongful act, and must actually do so; and (iii) Opposability: the act committed must be internationally wrongful for both the assisting and the assisted state (ARSIWA, p.66).
However, there is some uncertainty regarding the “knowledge” requirement. Although the ARSIWA commentary uses terminology like “with a view to/intended to facilitate the wrongful act,” the letter of Article 16 does not mention intention (ARSIWA, p.66). It is suggested that focus should be placed on whether the assisting state had knowledge or awareness that its assistance is leading to a wrongful act (Giuffre, p.727-728). Awareness of circumstances is sufficient and Article 16 is neutral on the question of wrongful intent (ARSIWA, p.65). Political statements by Italian officials, the 2017 MoU aimed at preventing boat people from reaching Italian shores, official reports by human rights organisations etc. can be used as evidence of Italy’s knowledge. Thus, the first element of “knowledge” is met because Italy is aware that Libya is not a safe country and has knowledge that its assistance is significant for Libya’s perpetration of human rights violations.
“Connection” requires that the aid or assistance must significantly contribute to the wrongful act, though it need not be essential for the performance (ARSIWA, p. 66). Training, economic assistance, political or legal aid, sharing of confidential information etc. can all be construed as “aid or assistance” (Giuffre, p.727). The aid and assistance provided by Italy can be clearly linked to the Libyan authorities’ subsequent wrongful conduct.
Finally, the “opposability” requirement also seems fulfilled, as the conduct of Libya breaches its obligation of non-refoulement. Moreover, there is also a violation of human right obligations enshrined in ICCPR and CAT, to which both Italy and Libya are signatories to.
Thus, Italy should be held responsible under Article 16 for violating non-refoulement and human rights obligations by assisting Libya in intercepting and returning boat people to cruel, inhuman or degrading treatment in Libyan detention centres.