In February 2021, Libya will enter its tenth year of civil war. With a split government, a robust illegal arms trade, thousands of militias, and a society fractured along the lines of the previous Libyan federation, the country exhibits several types of crises: governance, security, and humanitarian.
The European Union’s (EU) use of Libya as a “refugee transit country” adds another layer of complexity to its humanitarian needs.By using Libya as a refugee transit country, the EU trilaterally allows, causes, and enables violations of refugees’ human rights by employing hyper-territorial practices. Hyper-territorial practices are composed of two parts. The first involves the use of externalization – the phenomena of states extending control of migration beyond their territorial boundaries. The second is the use of escalated border control along “a finely calibrated border line.”
Dissecting the migratory practices of the EU reveals how the Global North has implemented a pernicious method of managing refugee migration amidst the chaos of the complex situation in Libya. By engaging hyper-territorial practices, the EU has restrained migrants’ access to their territorial human and civil rights.
Unpacking the EU’s Instrumentalization of Libya
For years, the EU has struggled to develop a clear, unified migration strategy among its member states, resulting in cacophonic responses. Its migration policy toward Libya is no different. To date, the agreements and policies pursued by the EU are characterized by externalization, political deals, “outsource[d] border management,” and reactive humanitarian assistance that date as far back as the Qaddafi era. On one occasion, Qaddafi leveraged this chaos to his advantage, pejoratively chastising European leaders that Libya would “turn into Africa” unless it was paid at least five billion euros per year to secure the coastline and keep refugees away from European shores.
Certain states within the EU have cut their own territorial deals with Libya. Italy is one such example. Formally launched in 2013, the Italian Coast Guard began to “forcibly return migrants intercepted at sea” due to a Friendship Pact between the two countries. Administered through Operation Mare Nostrum, whichironically translates to “our sea” in English, Italy framed the mission as a search and rescue operation. In practice, however, it was neither friendly nor liberating, as the Coast Guard intercepted boats that carried individuals without proper documentationand returned them back to Libya. Although Mare Nostrum has ended, Italy continues similar operations through a signed Memorandum of Understanding (MoU), most recently renewed in February 2020. The EU also supports the Libyan Coast Guard in combating illegal migration through comparable search and rescue operations across the Mediterranean “in the name of ‘integrated border management’”. In 2017 and 2018, the EU dedicated 91.3 million euros to the endeavor.
Libya has not signed the 1951 Geneva Convention for Refugees and lacks an established asylum system to handle applications, creating a lack of accountability and enabling the maltreatment of those forcibly returned. This mistreatment is well-documented. Squalid detainment camps, such as the one in Bani-Walid, cage refugees and further restrict their movement. First-hand accounts from detainees described it as such: “migrants were crammed in a room in the detention camp of Bani-Walid, they urinated and emptied their bowels in the same room, the women were sexually abused, the men were beaten, nobody could wash.” Run by government actors such as Libya’s Directorate for Combating Illegal Migrants (DCIM), refugees are smothered in small spaces with barely enough to eat. Reporting from February 2020 indicates that the UN-backed Governance of National Accord (GNA) tried providing food for individuals in these camps, but food was not delivered due to lack of payment and/or widespread violence.
Refugees also are at risk of being kidnapped by highly organized criminal groups. Often “sold from one criminal gang to another and required to pay ransoms multiple times before being set free or taken to coastal areas to wait,” refugees are also subject to torture to extort money from their families and friends. Although Libya is party to the Convention Against Torture, it has not signed the Optional Protocol of the Convention Against Torture, nor has it responded to individually-launched complaints, or “accepted any of the inquiry procedure foreseen in relevant international treaties.”
Implications for Refugee Rights
Strategically speaking, the EU’s goals are to “[remotely] control and deter.” It has deliberately used mechanisms that distance, dehumanize, and deprive refugees of their rights to asylum and non-refoulement – which would be conferred as soon as they were to touch European shores. Using a rights-based humanitarianism (RBH), we can reframe the plight of the refugee from charity, compassion, and other “should” motives to a “must” imperative: “defending, advocating and securing enjoyments” that the refugee rights regime grants. It also reinforces the obligations of the EU, which is party to the 1951 Convention, the 1967 Protocol, and the Charter of Fundamental Human Rights. Their exploitation of territoriality and distance allows them to circumvent this obligation and others as defined in the Common European Asylum System.
However, to claim that the EU does not value human rights would be to throw the baby out with the bathwater. Observing the many fiscal, security, and policy efforts devoted to deterring migrants reveals that the Union very much understands the gravity of these rights – so much so that they are willing to go to extreme lengths to keep them out of refugees’ grasp by pushing them farther and farther away from Europe.
The implications of RBH go beyond the realm of thought and theory; they have tangible ramifications. This deprivation of rights hides behind deliberate nomenclature choices and an insidious framing of these practices, such as the “Friendship Pact,” “Operation Our Sea,” and “search and rescue” operations. An observation of these facts offers a similar conclusion: an operation that forcibly returns refugees to a place with a high risk of being caged, trafficked, smuggled, sold, tortured, or abused is far from a “rescue.” For refugees that transit through Libya, it is a matter of life, death, and human dignity.
Freedom from fear, freedom from want, and freedom from indignity form the larger, moral concerns of refugees today. To move toward progress, the lawyers, human rights advocates, and citizens alike must use rights-based humanitarianism to hold the state to account in fulfilling its commitments and obligations. We must not see assisting refugees as a charitable endeavor, but rather, perceive it as a “means of enabling refugees to enjoy their rights.”
When considering the journey of refugees, lawyers must continue to interrogate the notions of territoriality and access of rights. Revisiting these themes may generate harder-hitting advocacy narratives that shatter preconceived notions of said refugee crises and provoke more meaningful, grounded, and sustainable actions through a rights-based approach.