Back to Old Tricks? Italian Responsibility for Returning People to Libya

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On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Some of the refugees and migrants were transferred onto the coastguard vessel. Libyan officials boarded the migrant boat, with most of the refugees and migrants still on board and both the coastguard and migrant vessel sailed back to Tripoli with the migrants and refugees being disembarked in the Abu Sita Naval Base and transferred to detention centres.

These actions must be seen within the broader dynamics of EU-Libya relations at the moment. First, this is the first noted interception operation by the Libyan authorities in the area and seems to be inspired by growing pressure from the EU for the Libyan authorities to close their borders to migrants and asylum seekers leaving for Europe. This dynamic also involves the payment of over 100 million Euros approved by the European Council in February this year aimed at helping with closing borders and the giving by Italy of vessels to Libya (with the first vessels having been provided less than a month before this incident). In January 2017, Italy and Libya also signed a bilateral Memorandum of Understanding relating to tackling irregular migration. The EU is evidently expecting Libya to help control the number of asylum seekers making the perilous journey to Europe as part of its attempt to address the so-called ‘migration crisis’. The instruction to intercept by Italy must be seen within the context of closer cooperation between the EU (and Italy in particular) and Libya, which is aimed at controlling migration.

There are other contextual factors that also inform this analysis. Foremost amongst these is that, whilst the rescue occurred relatively close to Libya (but in international waters) there was an alternative in that one of the civil society rescue vessels was close by and available to rescue the migrant vessel. That NGO vessel was, it is understood, challenged by the Libyan Coast Guard (with news on the media that this also placed the NGO rescuing vessel and those onboard at risk). This challenges the argument that a rescue was required and had to be conducted by the vessel that was closest. This action should also be seen in the context of growing efforts by the Italian authorities to challenge the work undertaken by these NGOs at sea, which have included statements that imply links between these NGOs and smugglers and magisterial inquiries into similar links. At time of writing none of these inquiries has resulted in prosecutions.

Under Article 2 of the ILC Articles:

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

Looking at the second of these requirements, the principle of non-refoulment is enshrined in Article 3 of the Convention Against Torture, Article 33 of the Geneva Refugee Convention, Article 3 of the European Convention on Human Rights, Articles 4 and 19 of the Charter of Fundamental Rights of the European Union and is recognised as customary international law. The prohibition covers the return of people directly to harm (refoulment), or the return of people to a place that then returns them to harm (chain refoulment). Italy’s actions in this context fall foul of both of these legal prohibitions given the likelihood of return from Libya to other countries (such as Eritrea and Sudan) and the human rights violations experienced by migrants in Libya itself. The prohibition of refoulment entails both negative obligations (not to return) and positive obligations (amongst which are to provide access to protection procedures and to be aware of the risks). There is now a considerable body of ECtHR case law on this point including MSS v. Belgium and Greece, Sharifi and Others v. Italy and Greece, and Khliafia and others v. Italy (see here and here).

Returning people to Libya by Italy has been the subject of a ECtHR decision in Hirsi Jamaa and others v. Italy. The Court found Italy to be in violation of Article 3 of the ECHR (prohibition of torture, cruel and inhumane treatment) through its programme of returning individuals to Libya even if the return was done on the high seas. There is an abundant body of literature on this case and its implications for State action on the high seas (See for instance: here, here and here). Of particular interest is the concurring opinion of Judge Albuquerque who clearly articulates the practical meaning of the court’s reasoning and decision. Returning people to Libya clearly constitutes a breach of an international legal obligation by Italy.

In this particular situation Italy’s Maritime Rescue Coordination Centre (MRCC) instructed the Libyan authorities to take charge of the situation and to take those rescued back to Libya. It simultaneously instructed an NGO rescue vessel to stand down. Instructing Libya to intercept with the intention, or at least full awareness that that instruction would result in the intercepted individuals being returned to Libya in violation of the prohibition of refoulment therefore amounts to an internationally wrongful act. The instruction was given by an organ of State (MRCC) thereby meeting the attribution requirement under Article 4 of the ILC Articles.

Excluding responsibility under these circumstances would severely jeopardise the meaning and value of the ILC Articles and the principles of state responsibility. It would also render meaningless human rights obligations as they apply to persons at sea. Libya too has obligations of its own including the prohibition of torture, cruel and inhumane treatment and of refoulment to other countries.

Italian responsibility can also be established under Article 16 of the Articles on State Responsibility. Article 16 deals with aiding and abetting the internationally wrongful act of another State. It provides that:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

There are therefore 3 key limitations to the responsibility of the assisting State namely: awareness of the circumstances making the act internationally wrongful, the assistance having been given with a view of facilitating that wrongful act and the completed act being such as would be a wrongful act if committed by the assisting State (See here). In the present context, Italian assistance on the spot and more broadly meets all three of these requirements. As noted above, returns to Libya would indeed be an internationally wrongful act committed by Italy. Italy is well aware of the fact that returns to Libya amount to refoulment not least because it has been found responsible for that exact violation by the ECHR. The instruction to intercept, the provision of resources, and the instruction to Sea Watch 2 to stand down from rescuing the migrants at sea clearly amount to a situation of assistance to the Libyan coastguard in undertaking the action facilitating the wrongful act. Italy’s knowledge of the concerned realities, and the fact that the return itself would be an internationally wrongful act if committed by Italy therefore clearly activates Italian responsibility for that assistance. It does so without prejudice to Libya’s own responsibilities in this context.

The European Union and its Member States have consistently sought mechanisms to curtail the number potential asylum seekers arriving to Europe’s shores and in doing so have worked closely with third countries. When such actions, reflective as they are of a broader policy, amount to human rights violations and internationally wrongful act, there is scope for responsibility for the EU States involved – in this case Italy. Italy’s action in this case clearly activate its responsibility for the international wrongful act, both directly through the instruction given (with awareness of the consequences), and through its assistance of Libya in the perpetration of the wrongful act.

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Floris Tan says

June 6, 2017

Dear Jean-Pierre,

Thank you for your post and raising this issue. I do have a question, specifically on Italy's responsibility under the ECHR in relation to extraterritorial jurisdiction. Do you think Italy exercised 'jurisdiction' for the purpose of Art. 1 ECHR, and if so, why? As far as I know (but I must admit I haven't looked at the cases you cite in detail), responsibility for refoulement on the high seas has thus far been accepted where applicants (refugees) have been brought within the State's jurisdiction by taking them aboard the State's military vessels (Hirsi Amaa v Italy), and thereby brought under that State's control. Would you say that applies similarly to the facts of the case as presented above?

The two models of jurisdiction put forward by the ECtHR have been the geographical and personal models of extraterritorial jurisdiction, and from the facts of the case it would seem the Italian coast guard's modus operandi avoids gaining direct control over the refugees. I wonder if that might pose problems in any potential case brought before the ECtHR. If so, do you think there's any potential solution, and what role would Art. 16 ARSIWA play in this regard? Would complicity by Italy in a wrongful act committed by Libya be justiciable before the European Court, even if Libya is not a party to the Convention?

I look forward to your thoughts!

Nick R. says

June 6, 2017

I second Floris' question regarding jurisdiction under Article 1 ECHR. Neither the personal, nor territorial models of jurisdiction seem to apply here. And attribution of conduct does not equal jurisdiction.

As to attribution under Art. 16 ARSIWA: attribution on grounds of aiding and assisting can only occur regarding internationally wrongful acts committed by the other state. I'm not sure which internationally wrongful act Libya has committed here? Libya is not party to the Refugee Concention and in any case, non-refoulement would only apply to expulsions from Libyan territory.

Also, regarding Italy's international responsibility for the "instruction": how was this refoulement? Clearly, the migrants were not under Italian control, so how could they have been "returned" by Italy? And inhowfar did the instruction bind Libya?

Kind regards,

Andrew Filis says

June 6, 2017

Thank you for this.

As is the case with Greece - and, generally, the EU - vis-a-vis Turkey, such seems to be the case with Italy and Libya; that's to say, that States seek to circumvent hard - treaty - obligations by bilateral diplomatic action, and the convenient neglect of their erga onmes obligations. I do wonder whether some State - member of the so-called 'international community' - which accepts as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the ICJ is willing to make good on its erga onmes obligations by holding Italy accountable at the ICJ under Article 36(2) of its Statute.

As a side comment, the Draft Articles ought to be presented as a convenient reflection/statement of existing customary norms applicable to state responsibility than of having any sui juris applicability.