The EU Border Assistance Mission in Libya – Has the EU Fulfilled its Objectives Under the 2017 Malta Declaration?

Discourses of migration and borders has found itself at the forefront of European politics in recent years as current refugee situations continue to unfold. In 2015, the crisis peaked at European shores and EU member states witnessed almost 1.3 million applications for international protection (European Parliament, 2017). Tensions across the continent ensued as policymakers battled with how to effectively deal with the humanitarian situation. One such outcome has been EU and Italian cooperation with Libya formalised under the Malta Declaration on the 3rd of February 2017. The European Union’s Common Security and Defence Policy (CSDP) initiative has aimed to curb flows of migration and reduce the risk to life of those travelling via the Central Mediterranean. As recently stated by EU High Representative Federica Mogherini, “If there is one interlocutor, one regional player, global player on which the United Nations and the Libyan people can count upon today is the European Union” (EEAS, 2019). Through an interrogation of the content of the Malta Declaration, this essay aims to question to what extent the goals of the Declaration have been fulfilled. After a background to the its creation, this essay will examine each of the main goals of the Declaration and question current scenarios. I hypothesize that the EU has only partly fulfilled its objectives due to the prioritization of certain goals over others. I further belief it has not upheld its determination to do so “in full respect of human rights, international law and European values” (Malta Declaration, Article 1).

Current Political Situation in Libya:

Libya experienced a short period of respite following the fall of Muammar Gaddafi’s 42-year reigning government in 2011. However, in 2014, the violence leading up to the 2011 uprising overtook much of the country once again as a power vacuum was created. The country has splintered and the emergence of initially three, and now two, separate authorities competing for authoritative legitimacy has been witnessed. Political turmoil has led to an economic crisis in which illicit smuggling has flourished. The business model of the smuggling of human beings has become a multi-million-euro enterprise in Libya. Currently, the United Nations (UN) and the EU recognise the legitimacy of Prime Minister Fayez Sarraj of the Government of National Accord (GNA) based in the capital Tripoli to the west of the country. On the other hand, the rival Interim Government is found in the eastern cities of al-Bayda, Tobruk and Benghazi and led by Khalifa Haftar of the Libyan National Army. Throughout the country militias linked to both fractions have continued to clash and all efforts to achieve political reconciliation have foundered. Most recently, solely since the advance on Tripoli by General Khalifa Haftar’s forces began in April 2019, the World Health Organisation reported that more than 454 people have been killed and 2,154 injured (Amnesty International, 2019).

Background to Libya and EU Co-Operation:

The latest United Nations (2018) estimates show that there are roughly 680,000 migrants and asylum seekers in Libya, with an additional 8,000-10,000 in official detention centres and an unknown number in informal detention centres. These centres will be discussed in detail throughout following sections, however, what these numbers demonstrate is the fact that Libya acts as a major transit country for migrants. As part of the Southern Neighbourhood of the EU which is included in European Neighbourhood Policies (ENP), the EU has been funding the regional and bilateral cooperation in all EU’s partners in the region. However, Libya has not concluded an Association Agreement with the EU and instead benefits through special annual measures under the European Neighbourhood Instrument (ENI). Libya also has access to other financial instruments such as the Instrument Contributing to Stability and Peace (IcSP) and the Development Co-operation Instrument (DCI). They also gain humanitarian assistance through the ECHO instrument and receive special funding from the EU Emergency Trust Fund (European Commission, 2019).

Due to Libya’s relative closeness to Europe, particularly Italy and Malta, those wishing to reach European shores cross the Mediterranean and face “by far the world’s deadliest” route for migrants (IOM, 2017). In 2016, 180,000 migrants arrived at Italian shores. This had followed two previous years of large-scale arrivals of 153,000 and 170,000 in 2014 and 2015 respectively (Feldstein, 2018). Sea crossings organised by smugglers often entailed enormous overcrowding and poor-quality boats with little fuel and safety features resulting in many thousand drownings each year. With pressure on the EU to respond, Mare Nostrum was launched, an operation which lasted between October 2013 and seen Italy engage in proactive patrolling and rescue missions. The operation ceased one year later due to EU policymakers viewing it as a ‘pull factor’ encouraging migrants to set sail for Europe (United Kingdom Parliament, 2014; Riddervold and Bosilca, 2017). Following two devastating shipwrecks in April 2015 claiming over 1,200 lives alone, Frontex Joint Operation Triton came to replace Mare Nostrum, although deploying fewer ships and prioritising deterring migrants over rescue operations. Issues with migration quickly fell under the jurisdiction of CFSP as outsourcing border controls and countering human smuggling began to overtake the role of search and rescue. This was first witnessed with the EU-Turkey deal in 2015 in relation to migration via the Balkan routes and on the eve of the February 2017 EU summit in Malta, Council President Donald Tusk also promised to close the Central Mediterranean route.

At the summit, a Memorandum of Understanding promising greater co-operation in the areas of “illegal immigration, human trafficking and contraband and… to reinforce the border security between the Libya State and the Italian Republic” was signed (Odysseus Network, 2017). Support for the deal from the EU became formalised under the Malta Declaration in which President Tusk stated its primary purpose was to “help reduce the number of irregular migrants and save lives at sea” (European Council, 2017). Since the commencement of the Declaration, the EU has been engaged in CSDP missions and operations in Libya that most notably include EUNAVFOR Med Operation Sophia, EUBAM Libya and the EU Liaison and Planning Cell (EULPC).

Interrogating the Document:

1. Supporting the Libyan Coast Guard

Article 6(a) of the Declaration states that priority will be given to “training, equipment and support to the Libyan national coast guard and other relevant agencies.” In June 2015, the ‘European Union Naval Force Mediterranean Operation Sophia’ (Operation Sophia) was initially launched with a mandate of undertaking systematic efforts to identify, capture and dispose of vessels used by migrant smugglers or traffickers. However, by July 2017, which followed the establishment of the Declaration, the operation had expanded to include the training of the Libyan Coast Guard (LCG) officers, petty officers, and sailors at least nominally under the GNA’s Defence Ministry. However, it has been documented that there have been major efforts by the GNA to integrate militias and armed groups into the security sector. For example, on the 7th of May 2018, the GNA issued Decree No. 555, dissolving the Tripoli-based Radaa Forces, also known as the Special Deterrent Forces, and integrating them into a new security force called the ”Deterrence Apparatus for Combating Organized Crime and Terrorism’’ (DACOT). Organisations, such as Amnesty International (2018), have documented grave human rights abuses by the militia group including abductions, torture and detentions. A classified 2018 report from EUBAM also acknowledged that LCG staff includes an “unknown number” of former militia members who fought to topple Gaddafi’s regime in 2011 and had since been incorporated into the LCG without any training (Human Rights Watch, 2019). Disregards for human security by the LCG has resulted in many humanitarian violations and dangerous situations for migrants. On the 6th of November 2017, at least 20 people lost their lives at sea when the LCG, using a donated Italian ship, the Ras Jadir, failed to lower its inflatable boats and instead forced migrants to climb up the side of the ship (The New York Times, 2017). On the 23rd of May 2017, NGOs Médecins Sans Frontières and SOS Méditerranée reported members of the LCG coming aboard their ship following a rescue mission firing shots and demanding mobile phones and money (Médecins Sans Frontières, 2017). On the 18th of July 2018, the LCG intercepted a migrant boat and destroyed it. They were accused of leaving three people at sea, including a mother and toddler, after they refused to board their boat and return to Libya (The Guardian, 2018). Search and rescue operations by NGOs have further reported many cases of intimation by members of the LCG, including declaring ‘Libyan zones’ in which other boats were not authorised to enter.

Currently, almost all sea patrols involved in search and rescue (SAR) operations in the central Mediterranean have ceased. Operation Sophia, which has had two vessels and five planes and helicopters and has been involved in the rescue of almost 50,000 people, suspended its sea patrols following arguments over which EU country should take in those rescued at sea. This has led to many instances in which migrants have been stranded at sea without having a port for disembarkation (Amnesty International, 2018). There has also been evidence of a ‘criminalisation campaign’ against NGO’s involved in SAR. In order to stop operations, NGO personnel have continuously been accused of and investigated for cooperating with human trafficking and abetting unauthorized migration (European Fundamental Rights Agency, 2018). In the past two years, at least seven vessels have been pre-emptively seized or blocked at ports in Italy, Malta and Spain (Vazquez, 2019). As a result, SAR in the Central Mediterranean has been left to the disposal of the LCG with the European Commission (2019) stating that “the EU thinks it is preferable to work with the Libyan Coast Guard to enhance their capacity to carry out search and rescue operations in their zone of responsibility, where most search and rescue incidents occur”. For the first three months of 2018 the mortality ratio for those crossing sea passage was 1 in 29. For the first three months of 2019 this has risen to 1 for every 11 people (IOM, 2019).

As of June 2018, 213 out of 3,385 LCG personnel had engaged in training courses funded by the EU (Human Rights Watch, 2019). At the beginning of 2019, EUBAM Libya, the Italian Ministry of Interior, and Frontex jointly organised a three-week training course for twenty-one police officers from the Libyan General Administration for Coastal Security (GACS). This focused on “search and rescue, human rights, law enforcement, and basic maritime skills” (EEAS, 2019). Patrol boats have also been donated for use by the LCG by the EU, including 16 by Italy to “to strengthen capacity in border control and fight against illegal trafficking”. Under EU funding, Italy is also currently undertaking a project to establish a maritime rescue coordination centre (MRCC) in Libya, expected to be operational in 2020. In the meantime, an operations room has been set up aboard an Italian ship docked in Tripoli. However, in March 2018, EUNAVFOR MED cited a “critical infrastructural situation” in the operations room compounded by limited language skills, equipment and fuel deficiencies and a lack of software skills among personnel. An inability to effectively patrol even Libyan territorial waters and assist boats in distress was reiterated by a Human Rights Watch (2018) report in which LCG commanders voiced their concerns. The current downscaled mandate for Operation Sophia will completely be suspended on the 30th of September 2019 (European Council, 2019).

2. Disrupting the Business of Smuggling

Article 6(b) focuses on “efforts to disrupt the business model of smugglers through enhanced operational action, within an integrated approach involving Libya and other countries on the route and relevant international partners, engaged Member States, CSDP missions and operations, Europol and the European Border and Coast Guard.” Operation Sophia’s initial complete focus was on the counteraction of human trafficking and smuggling through the disruption of the business model and criminal networks. Since its commencement, it has contributed to the apprehension of over 151 suspected smugglers and traffickers. It has further reprimanded close to 551 assets for smuggling such as boats. In July 2018, the Crime and Information Cell (CIC) was launched, a pilot project to reinforce information exchange among specialised EU agencies – Europol, FRONTEX and the European Border and Coastguard Agency. The cell, located within Operation Sophia, contributes to make work on disrupting criminal networks more effective and efficient.

Such integrations of militia members into the LCG mentioned above, have led to collaborations between the LCG and smugglers including safe passage to depart. In a leaked report by the EEAS (2016), it was revealed that officials have also been well aware of the direct or indirect involvement of members of the Libyan coast guard in the smuggling business. Furthermore, a confidential UN Panel of Experts report on Libya leaked to the press in February 2018 suggested that most smuggling groups have connections to official Libyan security institutions. The report stated concern “over the possible use of state facilities and state funds by armed groups and traffickers to enhance their control of migration routes” (HRW, 2019). The state affiliated militia, the Special Deterrent Forces, mentioned previously, is reported to have arrested migrants and handed them over to smuggling networks (Reuters, 2018).

3. Supporting the Development of Local Communities

Article 6(c) supports “where possible the development of local communities in Libya, especially in coastal areas and at Libyan land borders on the migratory routes, to improve their socio-economic situation and enhance their resilience as host communities.” Bilateral support to Libya currently consists of €70 million diffused over 23 projects, mainly through the European Neighbourhood Instrument (ENI) and the Instrument Contributing to Stability and Peace (IcSP). These projects cover areas such as civil society; governance; health; economy, youth and education; and support to the political process, security and mediation activities. In terms of governance, EU efforts aim to reinforce the capacity of elected institutions. Support to government functions include those of the Ministry of Labour and the Ministry of Finance, as well extended support to other institutions such as local councils and media professionals. 2017 show the adoption of a special measure worth €10 million in the health sector, focusing on “maternal health, blood transfusion services, nurse training, mental health and non-communicable disease prevention” (EEAS, 2019). Economic growth has been facilitated by the promotion and development of small and medium-sized enterprises (SME) and over 100 entrepreneurs have been trained to start their own business. This has been in an attempt to divert the temptation of smuggling in Libya and to create avenues for employment. Civil society has benefited through many comprehensive programmes such as the ‘Support to Civil Society in Libya’ aimed at facilitating dialogue exchange between civil society representatives and national authorities. ‘Civil Initiatives Libya’ and €5 million support set up four training centres across the country for the development and sustainability of civil society organisations. Specifically migratory related, ‘Managing Mixed Migration Flows’ has been financed by the North of Africa window of the EU Emergency Trust Fund for Africa. The objectives of the €90 million programme is to “is to comprehensively reinforce protection and resilience of migrants, refugees and host communities in Libya while supporting an improved migration management along the migration routes in the country” (UNDP, 2019).

4. Ensuring Adequate Reception Conditions in Libya

Article 6(e) seeks to “ensure adequate reception capacities and conditions in Libya for migrants.” The current reception conditions in Libya have recently drawn international attentions and remain the biggest criticism for EU cooperation with Libya. Libya has yet to sign the 1951 Refugee Convention and has not formalised UNCHR presence. As the law currently stands, those who take irregular entry into Libya are criminalised with the offense risking prison sentences, forced labour, fines and deportation. A complete absence of legislation and asylum procedures to protect migrants, “mass, arbitrary and indefinite detention has become the primary migration management system in the country” (Amnesty International, 2017). There is no specification to maximum terms in the law following detention and as a result, asylum seekers and refugees have been incarcerated indefinitely. Furthermore, detainees have no access to legal routes to challenge decisions and Libya is currently in breach of international law. Interviews conducted by Human Rights Watch (2019) of just over 100 detainees in Libya found that 55% of them had been intercepted or rescued by the LCG under the Malta Declaration.

Current statistics estimate that there are between 8,000 – 10,000 migrants being held in 18 governmentally recognised detention centres throughout Libya (HRW, 2019). However, due to the current insecurity in the country, it has also been reported that thousands more are being detained in buildings run by Libyan criminal gangs. The governance of such detainment centres varies depending on whichever armed group is controlling the neighboured in which the centre is located. Nonetheless, asylum seekers and refugees in both types of centres are facing inhumane living conditions, inadequate nutrition and are subject to torture, degrading punishment and sexual violence. In 2018, Human Rights Watch visited four government centres in Tripoli, Misrata, and Zuwara. Upon inspection they documented “inhumane conditions that included severe overcrowding, unsanitary conditions, poor quality food and water that has led to malnutrition, lack of adequate healthcare, and disturbing accounts of violence by guards, including beatings, whippings, and use of electric shocks.” Vulnerable groups of people are also at risk. Human Rights Watch (2019) found that many young children, including newborns, and breastfeeding mothers faced severe food insecurity. Such groups are also not exempt from the threat of direct violence with documentation of rape and beatings of children by guards (HRW, 2019). The prevalence of violence in the centres is often used to extort ransoms to escape indefinite detention. As one individual reported to the Irish Times, he was tortured until “his family paid $12,000 (€10,280), which they raised by selling their belongings and begging for money from friends” (Hayden, 2018). As almost 20 percent of those reaching Europe from Libya in the first nine months of 2018 were under the age of 18, it is believed that children account for a large proportion of the detainees in Libya (IOM, 2018).

Full awareness of the situation of migrants and asylum seekers in Libya has been acknowledged by the EU, particularly in a leaked report by EUBAM in January 2017. It stated that “there are reports about these DCs detention centres which describe gross human rights violations and extreme abuse and mishandling of detainees, including sexual abuse, slavery, forced prostitution, torture and maltreatment” (EEAS, 2017). Footage has also been reported in the media in November 2017 of migrants being sold as slaves in Libya for around $400 (Quackenbush, 2017). Following the incident, EU migration commissioner, Dimitri Avramopoulos, said “we are all conscious of the appalling and degrading conditions in which some migrants are held in Libya” (Euractiv, 2017). Assistance in the centres by NGOs such as Médecins Sans Frontières has been diminished due to the current escalation of conflict in the country. Amnesty International (2019) have also suggested there is evidence that detention centres are being used as military complexes with detainees claiming there were “forced to engage in conflict-related activities such as loading and unloading guns and cleaning heavy machine guns, against their will.” In February 2019, Federica Mogherini met with the Prime Minister of Libya, Fayez al-Sarraj, and discussed “how to continue to improve conditions in detention centres for migrants, with the assistance of the EU and UN agencies” (EEAS, 2019).

5. Supporting Voluntary Returns

Article 6(e) aims to support the “IOM in significantly stepping up assisted voluntary return activities.” Between January 2017 and November 2018, with the use of EU funding, the IOM has assisted 30,000 people to voluntarily return to their country of origin from Libya. The project is part of a ‘Joint Initative for Migrant Protection and Reintegration’ which “facilitates orderly, safe, regular and responsible migration management through the development of rights-based and development-focused policies and processes on protection and sustainable reintegration” (European Commission, 2019). While this measure can be a valuable tool for those not in need of international protection wishing to return home safely, it cannot be considered to be completely voluntary. This is due to the fact that the only other option facing people is indefinite detention in Libya, or the risk to their very life in crossing the Mediterranean. Viewed in a certain light, the IOM is essentially deporting people on behalf of the Libyan authorities. Interestingly, I could not find evidence of which specific countries these people were being returned to, other than vague regions and there is no way to tell whether or not these people are being returned to dangerous situations. These returns have also not seen the number of people detained reduce as the use of interception and automatic detainment by the LCG has increased substantially over the years. HRW (2019) reported that detainees have found that IOM and the UNCHR came to their centres very rarely and could not register all of those interested when they did. With he use of EU support, the IOM and UNCHR have also evacuated just over 2,000 asylum seekers from Libya to a transit centre in Niamey, Niger. Once in Niger, people’s refugee statuses are determined and ultimately, resettled to EU countries. However, the programme faces limited capacity and roadblocks arise with the number of resettlement places host countries are willing to offer.

6. Information Campaigns and Outreach for Migrants

Article 6(f) discusses enhancing information campaigns aimed at migrants. An interesting element of political and academic discussions on migration management is the role information has on the decisions of people to migrate and to what part (Koser and Pinkerton 2002). Attention is given to the importance of different sources of information and their perceived legitimacy. There is, however, less study of the communication roles governments undertake which is directed towards potential migrants. In European receiving states, these efforts have been directed at ‘reputation management’—that is, not appearing more attractive to asylum seekers than neighbouring countries (Thielemann, 2003). These campaigns usually focus on the risks involved in irregular travel, the chances of residence permits and the struggles of undocumented life in Europe. From European institutional perspectives, the argument is put forward that this is to provide potential migrants with relevant and important information while they are surrounded by rumours from smugglers. However, the humanitarian argument rests on the assumption those with political power undertake such measures as deterrent strategies, rather than primarily to help migrants (Oeppen 2016). Calls to enhance such campaigns in the Malta Declaration echoed EU Council conclusions on migrant smuggling adopted on 10th March 2016. These conclusions called on Member States to

“increase awareness of the risks of irregular migration and migrant smuggling among the general public, vulnerable groups and professionals that could come into contact with smuggled migrants, by for instance developing a counter-narrative in the media and to share best practice. These campaigns should be targeted at specific groups and contain a balanced message, possibly involving the diaspora community” (European Commission, 2016).

7. Enhancing Libyan Border Management Capacity

Article 6(g) prioritizes reducing “the pressure on Libya’s land borders, working both with the Libyan authorities and all neighbours of Libya, including by supporting projects enhancing their border management capacity.” The focus on border management has fallen under the domain of EUBAM Libya, who was initially launched in May 2013 with a sole focus of integrated border management mission in Libya. In 2016, this mandate was expanded to include capacity building for members of the Libyan security forces, including involvement with the LCG discussed previously. Other elements of border management support include the ongoing training on recognition of forged documents provided by Dutch authorities. As a result of this particular project, “128 Libyan officers have already received basic training; 24 officers have been trained at advanced level and 12 trainers have been prepared and a chain of forged Schengen visas has been discovered” (EEAS, 2018). Most recently, the mandate of EUBAM Libya has been extended until June 2020 with an allocated budget of €61.6 million until this time period.

Concluding Thoughts

In March 2019, the Commissioner for Migration, Avramopoulos stated that

“the results of our common European approach on migration speak for themselves: Irregular arrivals are now lower than before the crisis, the European Border and Coast Guard has brought joint EU border protection to a new level and together with our partners we work on ensuring legal pathways while stepping up returns”

This seems to be a strange measure of success. The Malta Declaration was created with the overarching objective of “managing flows and saving lives” (European Commission, 2018). Open Migration (2018) reported an astounding drop of 77.7% of migrants reaching Italian shores during the first five months of 2018, in comparison to the same time period in 2017. Despite reducing flows, policies of the Malta Declaration have come at devasting cost to human life. Despite departures of Libya decreasing since mid-2017, the chances of dying in the waters of the Central Mediterranean have increased from 1 in every 42 people in 2017, to 1 in every 18 people in 2018 (UNCHR, 2018). According to research by Amnesty International (2018), there has been no independent monitoring or accountability mechanisms employed by the EU or Italy to ensure provisions provided by the two entities to strengthen Libyan capacities do not violate human rights. Policies by the EU masked on the premise of saving lives seem to be increasingly focused on curbing migration flows. As stated by Amnesty International (2018), there is the concern that “European governments have substituted clearly prohibited push-back measures with subsidized, or subcontracted, pull-back measures.” In March 2019, the EU High Representative, Federica Mogherini stated in relation to migration “still too many put their lives at risk and every single life not saved is one too many”. However, this statement has very much coincided with a hard-line approach on the facilitation of SAR. Particularly through Italian pressure, this has led to European countries closing their ports to NGO rescue groups intensifying the practise of transferring responsibility to LCG forces. This is despite, oftentimes, the availability of better-equipped vessels and trained individuals closer to the scene. The EU has provided material and technical assistance to the Libyan Coast Guard and abdicated virtually all responsibility for coordination of rescue operations at sea in a bid to limit the number of people arriving on its shores.

There has also been a failure in place to track those that are intercepted and returned to Libya. The concept of non-refoulement is located in the Charter of Fundamental Rights of the European Union is further found in the prohibition against torture in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the case law of the European Court of Human Rights. Refoulement occurs when a state sends an individual back to a country of origin where they may face persecution. It can also occur indirectly through sending an individual to a second recipient state, where they knew or ought to have known that the recipient state would not properly process their application, leading to a higher likelihood of a rejected application and potential refoulment. There has been clear evidence for a number of years that the EU is fully aware of the extent of the human rights violations that migrants face in Libya. Treatment ongoing in Libyan detention centres described in this paper clearly violate international law. The EU has further supported the capacity of the GNA, a currently competing authority in Libya, despite evidence of militia alliances. Through knowingly contributing to the abuses of detainees, the EU has remained complicit in those abuses. EU financial assistance in Libya has supported positive efforts including training, improved registration of migrants and asylum seekers, and help getting a limited number of people out of abusive detention. Despite this, funding has not helped to diminish the widespread and systematic violence and abysmal conditions in migrant detention centres. As a result, I believe that the EU has not yet successfully fulfilled or even partially fulfilled all of its objectives set out in the Malta Declaration of 2017.

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