Originally posted August 2010

In recent years, the situation of migrants and refugees in the Mediterranean has become more critical. Possibilities of legally entering the territory of the European Union have become more restrictive following the implementation of the Schengen acquis and new visa regulations for non-EU nationals in the Mediterranean region. Irregular migration routes across the Mediterranean Sea from the African continent to Europe have been subject to reinforced controls. European countries located at the external borders have strengthened their cooperation with third-party countries of origin and of transit in order to curb unauthorized migration.

This chapter sets out to assess the ways in which the Italian and European cooperation with Libya on migration and border controls affect the conditions of migrants living in Libya, as well as refugee protection. It is argued that existing patterns of bilateral cooperation may have various consequences on the respect for refugee protection standards. By combining an empirical approach to border regions with a legal-anthropological perspective, this chapter discusses the emergence of new parameters as applied to refugee protection. In addition, it analyzes whether Italy’s bilateral patterns of cooperation with Libya have had a bearing on the ways in which the European Union has shaped and configured its cooperation with Libya, at a supranational level, and whether it might influence the overall refugee protection system promoted at the EU level. The dynamic power relations that operate between actors on the ground in the border region, the Italian government, and the European Union are described.

The EU integration process is often conceptualized as a zero-sum game where decisional and operational powers are gradually relocated in a dualistic process between the European institutions and the Member States.[1] An approach that conceptualizes the EU integration process as a functional development, whereby the Member States and European institutions constitute the only powerful actors, cannot adequately grasp the intended and unintended effects of the policies implemented in the border regions. In this chapter, the ever-changing Mediterranean migration policy regime will be approached as a “multi-sited arena of negotiation.”[2] Accordingly, the inter-connections of local, national, and supranational actors are studied, acknowledging the complex character of plural legal orders.

I first discuss the development of the cooperation between Italy and Libya on migration control issues. Then, I assess the extent to which developments inherent in the bilateral cooperation between Libya and Italy may or may not affect policy measures adopted at the EU level. The impact of such cooperation on the conditions of migrants and refugees in Libya are illustrated with field data and interviews made with stakeholders and migrants in Libya.

The Italian-Libyan Cooperation on Migration and Border Controls

In recent years, the perception of Libya by European migration policy makers and the public has changed dramatically: from a former country of destination for migrants from Arab and sub-Saharan countries, Libya is now widely viewed as a transit country for African migrants and refugees[3] trying to reach Europe. Giuseppe Pisanu, former Italian Minister of the Interior, said in 2005 that “a million illegal migrants” are waiting to cross the Mediterranean from Libya to Italy.[4] This statement reflects the existence of a (perceived) threat that is often connected with the rising number of unauthorized migrants arriving on the coast of Sicily (the largest Southern Italian island).

An estimated 10% of undocumented migrants currently living in Italy arrived by sea. The phenomenon of “overstayers,” i.e. migrants who stay on the territory of a destination country beyond the expiration of their entry visa, is much more significant.[5]

In addition, available statistics appear to be unclear when it comes to Libya’s migratory reality. Figures related to undocumented migrants in the country vary considerably. For instance, the 2005 report of the European Commission’s technical mission to Libya stated that “the Libyan authorities estimate the number of legal foreign workers at 600,000, whereas unauthorized migrants are estimated to number between 750,000 and 1.2 million.”[6] With a population of about 5.5 million inhabitants, it is clear that Libya, aside from being a transit country, remains mainly a country of immigration and destination.

Libya has no established regulatory or administrative system that identifies and protects refugees. Libya is the only North African country which is not Party to the 1951 Geneva Convention on Refugees and has no asylum system. In this respect, an official of the Libyan Ministry of Foreign Affairs said “if Libya offered asylum, asylum seekers would come like a plague of locusts.“[7] Despite the lack of a genuine asylum system, Libya hosts a large number of migrants originating in sub-Saharan Africa, namely Sudan, Eritrea, Somalia, and the Democratic Republic of Congo who are in need of protection.[8]

Since the late 1990s, Italy has promoted bilateral cooperation with Libya. Migration control became a key component of the bilateral cooperation. The first s were established in a sensitive policy context as Libya was regarded as a “rogue state” and sanctioned by the UN and the EU. Based on the special relationship of a common colonial history, and bounded by important economic ties, the talks progressed quickly. In December 2000, the first general agreement aimed at fighting terrorism, organized crime, and undocumented immigration was signed in Rome.[9]

In 2003 and 2004, additional bilateral agreements were signed and significant measures of cooperation were introduced under the presidency of Silvio Berlusconi. A program of charter flights financed by Italy to remove undocumented migrants to their home countries was implemented. Technical equipment and training programs were provided to better control the Libyan borders, including patrol boats and fingerprinting kits.[10] Likewise, the first construction of a camp for undocumented migrants financed by Italy was created in 2003 in Gharyan, close to Tripoli. Additional camps were financed the following years, for example in Kufra and Sebah.[11] The detailed contents of the July 2003 agreement, which regulates the practical cooperation between the security forces of the two countries, remain beyond public purview. Furthermore, there are several informal agreements whose content is likewise uncertain.[12] Informality and secrecy surrounding the agreement have so far characterized the cooperation between Italy and Libya.

The first effects of the bilateral cooperation occurred in late 2004. Since October 2004, more than 4,000 third-country nationals have been removed from the Italian island Lampedusa to Libya.[13] Rising criticisms followed such removals. Various Italian and European NGOs and the European Parliament claimed that the Italian authorities failed to respect the fundamental rights of asylum seekers.[14] Read moreover, thirteen NGOs appealed to the European Commission to sanction Italy for having disregarded the interdiction of collective expulsions and for having violated the principle of non-refoulement of the 1951 Geneva Convention on Refugees. NGOs also underlined their concern that migrants detained in closed centers in Libya might become victims of human rights violations.[15]

The May 2006 government reshuffle that took place in Italy brought an end to the much criticized policy aimed at expelling third-country nationals to Libya. Nevertheless, cooperation in terms of border security and the financing of deportation flights and detention centers in Libya continued under the left-wing government headed by Romano Prodi. On his November 2007 visit to Tripoli, Italian Minister of Foreign Affairs, Massimo D’Alema, promised the construction of a highway and enhanced economic relations with Libya.[16] Against this background, a new agreement was signed on December 29, 2007, which, among other things, reinforced bilateral maritime cooperation.

Italy set out to induce Libya to become more cooperative on the control of maritime borders. It has to be said that Libya has been reluctant to tolerate foreign security forces on its territory. For this reason, the December 2007 agreement was viewed as a watershed. For the first time, a treaty allowed Italian boats to patrol in Libyan territorial waters. Joint maritime patrols of the Italian police and Libyan army were created. Such joint patrols allow the apprehension of migrants leaving the Libyan shores to then push them back to Libya. This cooperative agreement also resulted from informal negotiations between security experts and officials.

It was not before 2008 that bilateral relations gained further impetus when Silvio Berlusconi, the former and current Prime Minister of Italy, and Colonel Muammar Al Gadhafy signed a “friendship and cooperation agreement” (Trattato di amicizia) in Benghazi on August 30, 2008. The wide-ranging treaty was negotiated for years and was concluded to compensate Libya for the damage stemming from the Italian colonial period. Italy committed to paying $5 billion over a 20-year period, including the construction of a long-demanded highway from Tunisia to Egypt. The amount allocated to Libya foresees investments in the building sector, as well as scholarships for Libyan students wishing to study in Italy. Additionally, Italy’s national oil company, ENI, had its Libyan contract extended for another twenty-five years. Another advantage stemming from the Trattato di amicizia lies in the fact that Article 19 states that the parties commit to reinforcing border controls in order to curb unauthorized migration.[17] On his visit to Benghazi, Berlusconi also pushed for the quick implementation of the December 2007 agreement which, as of 2008, was not fully implemented.

Such developments are illustrative of the secrecy that has gradually characterized the bilateral relations between Italy and Libya since the late 1990s to date. Despite growing criticisms from the Italian parliament and various NGOs concerned about the violation of human and refugee rights, collaboration has expanded rapidly. Secrecy and informality also allow the parliamentary control on the Italian cooperation policy with Libya to be circumvented. Under these circumstances, any step aimed at improving the conditions of migrants kept in detention in Libya and at monitoring the respect for their human rights might turn out to be difficult.[18]

Libya, Italy, and the European Union

Having illustrated the cooperation between Italy and Libya on migration and border controls, I set out to investigate the extent to which it has had any impact on the ways in which the European Union has framed its bilateral policy with Libya. A report of the European Commission 2005 criticized the conditions in which migrants are detained in Libya and the arbitrariness of its detention system.[19] Furthermore the report acknowledged that there is no asylum system in Libya.[20] Despite these criticisms, the Commission recommended cooperation with Libya on migration issues, stating that there should be a change in Libya’s refugee policy.[21] In its conclusions, the June 2005 European Council conditioned cooperation with Libya with the recognition of UNHCR, the principle of non-refoulement and the full respect for human rights.[22]

In June 2005, the Libyan-EU cooperation started on an operational basis while taking the 2005 Commission’s report as a reference for future orientations and policy options. Institution building and training programs aimed at reinforcing border controls, along with the management of asylum were identified as key areas of cooperation.[23] Read moreover, fora of discussion with Libya were introduced, such as the 5+5 Dialogue on Migration in the Western Mediterranean.[24]

In September 2006, Commissioner Frattini approved technical equipment worth €3 million to Libya.[25] In November 2006, the EU-Africa Ministerial Conference on Migration and Development held in Tripoli was a symbolically important step to reinforce the relations with Libya. When Libya freed the foreign doctors and nurses convicted in July 2007 of having infected Libyan children with HIV,[26] a new era began for EU-Libyan relations. In July 2007, official talks on a cooperation partnership started, covering various areas of mutual interest. The establishment of a system for the control of Libyan land and maritime borders, financed by the EU, was part of the partnership.[27]

On the formal political level, the developments of the cooperation on migration issues between Libya and the EU are still limited, however. It is once more the operational and practical component which seems to make headway, leaving the formal democratic decision making processes behind. Frontex, the European Border Agency based in Warsaw, which has been criticized for a lack of transparency and democratic accountability in its work on the European external borders,[28] has pushed in favor of wider cooperation programs with Libya. Deputy Executive Director of Frontex Gil Arias sent a letter to Libyan officials in May 2007 asking for Libya’s cooperation in the framework of joint patrolling operations in the Mediterranean Sea.[29] This initiative resembled the one that Italy had already initiated with Libya. Actually, Frontex proposed to patrol in Libyan waters with a view to intercepting unauthorized migrants. The 2007 Frontex report on Libya is a follow-up to the 2005 report of the European Commission, and reasserted Libya’s reluctance to become Party to the 1951 Geneva Convention on refugees.[30]

Clearly, the report produced by Frontex did not mention the human rights situation in Libya or the dreadful conditions faced by migrants in detention. Numbers and statistics on migrants deported and detained are extensively mentioned and final policy recommendations only call for an improvement of the cooperation.[31] The addendum to the report includes an impressive list of technical material required by Libya to improve its border management, including 10 ships, 12 reconnaissance aircrafts, 18 helicopters, 22 fully equipped command centers, 86 trucks, 100 rubber boats, 240 jeeps, and more. Libya never joined the patrolling operations promoted by Frontex in the Mediterranean in 2008 and 2009 and remained opposed to the possibility of extending such operations to its territorial waters. However, given the positive bilateral developments with Italy in the field of joint patrolling operations in the Libyan territorial waters, one is entitled to expect that similar operations will also take place at a European level. Former European Commissioner of Justice Franco Frattini and current Commissioner Jacques Barrot have stated repeatedly that a Libyan participation would be of great use.[32]

There can be no question that Italy has played a critical part in facilitating the emergence and consolidation of an EU-Libyan partnership. The country already improved its relations with Libya in the late 1990s when Libya was still a pariah state and has since fostered bilateral cooperation. In recent years the Italian governments proactively brought pressure to bear on the European Union to abolish the EU embargo on Libya — which was lifted in October 2004 — and to cooperate with the Libyan regime.[33] It could even be argued that Italy is acting as a forerunner of the European Union, not only in the field of migration controls but also in the ways in which cooperative agreements, at the European level, have been framed. For instance, cooperation programs and financial assistance were carried out before bilateral relations were formally established. Following the Italian model, the EU did not ask for legal guarantees, nor did it call for a concrete improvement of the situation of migrants and asylum-seekers in Libya as a prerequisite to cooperating with Libya.

The ways in which cooperative agreements have been framed also allowed for the consolidation of a migration control regime. For example, the German research group Transit Migration showed how a migration control regime, creating the hitherto unknown phenomenon of the “illegal migrant,” was established in Turkey by the European Union. Main actors were not official institutions of the EU, but international organizations (mainly UNHCR and IOM as well as NGOs), which were financed by the EU and which established a new discourse around the phenomenon of “illegal migration.” The research group identified a new policy culture of governing the external borders of the EU, whereby the knowledge of experts and technocrats plays a central role and where recommendations are based on a “multi-level-governance” in different formal and informal working groups.[34]

In a similar vein, as a result of the Italian-German Cap Anamur[35] case in summer 2004, a discussion around migrants, viewed as defenseless victims of smugglers, started to “humanitarize” the problems at the external borders of the European Union. The Cap Anamur case was used by the Italian Minister of Interior Giuseppe Pisanu and his German counterpart Otto Schily to introduce Regional Protection Programs (RPPs) at an EU level. RPPs were put forward in September 2005 by the European Commission in order to enhance the refugee protection capacity of both transit and source countries “by providing Durable Solutions (the three Durable Solutions being repatriation, local integration or resettlement in a third country.”[36]

RPPs were viewed by Schily and Pisanu as a “durable solution” to tackle the humanitarian problem of unauthorized migrants drowning in the Mediterranean.[37] The idea of RPPs was given major attention at the Stockholm program that was adopted at the December 2009 Council of the European Union.[38]

Meanwhile, Italy established a broad cooperation program “on the ground” with Libya and other North African countries by funding detention centers and organizing removal charter flights. In contrast with RPPs which are aimed at reinforcing the refugee protection capacity of countries of transit and of origin, among other things, the issue of refugee protection is not considered in the Italian framework of cooperation. As Andrijasevic states, the implementation of the cooperative programs with Libya is not aimed at transferring asylum systems outside the EU external borders, “rather [it] deprives asylum-seekers of the possibility to access the asylum determination procedure.”[39] The result is not the externalization of the asylum system through policy transfers of good practices in the field refugee protection, but its abandonment. Such developments might jeopardize the concrete application of refugee standards, including the respect for the principle of non-refoulement.

Ulrich Beck and Edgar Grande[40] describe the integration process of the European Union as a “side-effect-regime”(Nebenfolgeregime) whereby the process of Europeanization itself is defined by national and supranational institutions, leading often to unintended consequences. Beck and Grande view the integration process as an “institutionalized improvisation” that follows no master plan and becomes clear only in retrospect, but is the initiator of sometimes far-reaching decisions.[41]

This seems to be the case regarding the Italian-Libyan cooperative agreements and their impact on the overall European refugee protection system. Being driven by a process which has developed its own dynamics, beyond the purview of democratic institutions, the danger of exporting border control regimes to Northern Africa without setting European standards for human rights and refugee protection is high, as Cuttitta observes.[42] Consequently, the European Union is gradually abandoning its own aspiration of spreading human rights through cooperation with neighboring countries, a strategy that was enshrined in the Barcelona declaration adopted at the 1995 Euro-Mediterranean Conference. Especially in the Libyan case, which for several reasons (e.g. economic and political ones) is less open to a European influence than other North African countries, it is likely that European standards of cooperation will be weakened instead of positively influencing the human rights agenda of Libya. The “imperial character” that, according to some scholars, characterizes European migration policy towards third countries, might induce a backlash. It is not the European Union or Italy that seems to determine the conditions of that cooperation, but rather the Libyan government. It is unlikely that Libya will agree to make progress in the field of human rights observance and refugee protection as shown in the next section.

In Tripoli

In this section, I propose to connect the Italian and European policy on transit migration in Libya with my own research experience and fieldwork. The main purpose of my fieldwork in Tripoli was to explore the conditions faced by migrants and refugees in Libya. The point was to understand whether their conditions had changed since the implementation of the Italian and European cooperation programs and how migrants and refugees perceived any change in their living conditions in Libya.

Libya remains a tightly controlled country with very little room for criticism of the ruling government and its regime. It was clear from the beginning that studying the situation of migrants was a sensitive research issue in Libya.

In Tripoli, migrants from sub-Saharan countries are visible all over the urban area. They clean pavements, work as informal street traders, or wait in certain places for occasional jobs to come up. Migrants from Arab countries are often employed in catering and services. They mainly work in the informal sector and have difficult access to legal employment. Most migrants, therefore, have irregular revenues. Social networks, based in general on s with compatriots and on religious affiliation, are of vital importance.

Given the difficulties in interviewing migrants in public spaces, I could start my fieldwork thanks to the assistance of a small Christian community in Tripoli which provided useful s with migrants. Visits and interviews in the segregated districts of Tripoli, where migrants and refugees from sub-Saharan countries mostly live, became possible. Later on, I could visit refugees outside Tripoli. The outskirts of the capital were occupied by various immigrant communities originating, in Sierra Leone, Cote d’Ivoire, and Nigeria, among others. Young men were living together, sharing two rooms. They were all educated; some of them had a university degree.

They came to Libya four years ago to escape war-torn areas. All of them were holders of an official letter from the UNHCR. This letter stated they were entitled to fair treatment and to the respect of their special need for protection. During the interviews, the respondents told me that the UNHCR letter was of no help when they were intercepted by the Libyan security forces. Daniel was in detention for more than a year, a few weeks before I met him. Only when he was brought to Sebah, a Southern city in the desert, did UNHCR manage to get him out of detention. He said that conditions in detention centers were dreadful and that violence by the Libyan guards was common and used in an arbitrary manner. There were regular cases of violence and torture against detainees, “they treated us like animals” he said again and again. Furthermore, overcrowding, poor hygienic conditions, and insufficient food were a problem. Daniel said that, for the whole period of his detention, he stayed together with around 80 other detainees in a 35 square meter room.

When talking about removals, the interviewees were convinced that migrants are regularly removed by plane by the Libyan authorities to other countries, but many of them are also brought to border regions in the desert. Indeed, there are reports by embassies from different sub-Saharan countries complaining that their nationals have disappeared during their removals.[43] The official number of 106 migrants’ deaths, following Libyan overland expulsions between October 2004 and March 2005, was denounced in a resolution of the European Parliament adopted in April 2005.[44] Recent reports seem to confirm that expulsions of unauthorized migrants from Libya have continued.[45]

Samuel said that his UNHCR letter was destroyed in front of him by a Libyan police officer. In his opinion, the official UNHCR letter is of no use for refugees in Libya. Liberian interviewees explained they did not feel safe in Libya anymore, as they live in fear of being detained and it gets harder and harder to find even an occasional job. They hoped to be resettled in a European country, through UNHCR resettlement programs, although these are implemented “only for individual emergency cases.”[46]

When I asked interviewees if they would cross the Mediterranean by boat, they rejected this option. They would not risk their life: “everybody knows how dangerous the journey to Italy is” they said. In their opinion, Italy puts pressure on Libya in order to control migrants. Whole groups of migrants are preventatively detained in Libya on the grounds that they want to cross the Mediterranean to Italy, even if this was not their intention.

As mentioned in the introduction, it is important to understand whether bilateral cooperation on the control of migration flows and borders may impact the conditions faced by the interviewed refugees.

Almost all the interviewees I met in Libya from sub-Saharan countries had experienced detention and imprisonment. A Nigerian man I met in a church died of tuberculosis shortly after his release from detention. I got to know him the evening of his release from prison. He was in very bad shape and said that for three days he had been drinking just salty sea water. He contracted an infection in the detention center, where contagious diseases are common.

Detailed information and numbers on detained immigrants in Libya are scarce or difficult to obtain. In June 2006, the Libyan authorities declared that “some 60,000 illegal migrants” were detained.[47] The interviews carried out in Tripoli, as well the reports written by human rights organizations,[48] showed that detention in Libya is often characterized by violence, opacity as to who is detained and for how long, and by the absence of any judicial system for remedy based on Libyan law.

Concerning the impact of Italian policy on the situation of migrants in Libya, Amnesty International argued in April 2005 that there is an indirect connection between the Italian-Libyan bilateral agreements and the rising number of migrants placed in detention in Libya.[49] In a similar vein, members of the delegation of the European Commission who visited in December 2004 detention centers in Libya declared that “the majority of the people (mainly from Niger, Ghana, and Mali) seem to have been arrested the day before the experts’ visit.”[50] This statement echoes what a Liberian interviewed refugee said to me: “The Libyans want to show that they are doing something against migrants to satisfy the European countries which are important trade partners.”[51] Additionally, according to an assessment made by UNHCR, the Libyan government’s crackdowns and wide-scale imprisonment of migrants began soon after Italy opted to remove migrants to Libya. Subsequently, these were expelled from Libya to their countries of origin in autumn 2004.[52]

Dr. Miftah Shalgam, Ambassador of Libya to Malta, explained in an interview dated October 2007:

Before, we had this policy of seeing us as part of the Arab world and African continent... And we feel that these people are our neighbors, brothers, and sisters. We feel that when you have some wealth and you are in a good position, why not allow these people to stay sometime? We don’t need them, for that we can bring skilled labor from Asia or Philippines … But these people are coming. And when they are coming we have traditions. When you have a guest, you cannot send a guest away; you have to feed them, at least for some time. In fact you are duty-bound to provide him with what he needs. At least, for some time. So these people are our neighbors. And when we were under colonial power we went to these countries. Libyans used to live in Chad, in Niger, in Egypt. So they received us, so maybe now it’s our turn. It doesn’t mean that we have a policy of welcoming them, but when they come you have to deal nicely, at least for some time, and then convince them to go. But now, under European pressure, we took some hard steps, some hard measures … Under European pressure, because of immigration, Libya was taking some steps which it normally will not take. By forcing them, detaining them, and then trying to force them back. And this is because of the European pressure. Because we don’t want our relations with Europe to suffer from this. But some times you end up doing something which you did not want to do …We feel that it was creating a problem with our neighbors. Malta, Italy… Then we felt that we have to do something. Let us do something to convince them that we are doing our best.[53]

The Libyan ambassador emphasized that the patterns of cooperation with Italy and the EU did not only change the policy of Libya in the field of migration and asylum. According to him, it also affected Libyan customary law, which is based on the Muslim right to hospitality and assistance to the needy. He argued that, as a result of Italian and European policy pressures, these traditions could no longer apply to people originating in Libya’s neighboring countries.

Of course, the Libyan ambassador’s statement should be taken with caution. Libya has for many decades ordered the detention and expulsion of undesirable aliens, even when no “pressure” was exerted by the European Union and its Member States. What is interesting is the fact that current policy options are rhetorically justified and justifiable, in the above interview of the Libyan official, with reference to external forces that prompt Libya to behave coercively. However, most interestingly, is that this rhetoric also weaves its way into the discourse of some of the refugees I interviewed. For instance, Liberian interviewees in Tripoli accounted for Libya’s restrictive immigration policy by referring to Italy’s strong pressure exerted on Libyan authorities.

Some migrants I met have lived in Libya for many years and seemed to lead a well established life with a regular job. Astonishingly, they also did not see their future in Libya. An Eritrean woman, Nara, said:

Today, I don’t know anybody who wants to stay in Libya. Before, it was different, until some years ago Africans could earn some good money in Libya and then return to their families. Today, they don’t find a job and have to fear detention. Some go back to their home countries. I cannot go back to Eritrea. I am planning to go to Italy.[54]

Like Nara, other migrants who lived in Libya for years also seemed to be worried about their future. As Nara, who had lost a sister crossing the Mediterranean Sea, most migrants are perfectly aware of the risk they face when they travel to Italy by boat. Nonetheless, they opt for the journey. “We feel trapped in Libya” was a sentence I heard several times talking to sub-Saharan migrants.

The changes in the lives of migrants in Libya in recent times studied against the background of the Italian and EU cooperation policy make visible that, from a humanitarian and a border security perspective, the bilateral and European cooperation policy is counterproductive: To escape the declining situation in Libya more, and not less, migrants are trying to reach the European continent through Italy. Landings were heavily rising from 2004 to 2008. These arrivals may stem from the restrictive immigration policies that Libya has adopted over the last few years as a response to its cooperation with Italy and the European Union. In January 2008, the Libyan government decided to summarily deport all undocumented aliens, including would-be asylum-seekers. Housing officials were also asked to pull down migrants’ shelters in the suburbs of the capital and in other cities. One is prompted to wonder whether such measures have acquired more policy meaningfulness as a result of Libya’s reinforced cooperation with the European Union, especially with Italy.

Conclusion

Clearly, it is difficult to properly assess whether bilateral patterns of cooperation on migration and border controls have impacted on the adoption of restrictive policy options at a European level. Nonetheless, the fieldwork carried out in Libya, as well as the evidenced security paradigm that drives the cooperation with Libya, seem to support the argument that bilateral patterns of cooperation might impact on the ways in which the EU refugee protection system is being framed and configured. However, such cause-and-effect relationships remain to be better explored, particularly regarding their implications for respect of the principle of non-refoulement enshrined in the 1951 Geneva Convention and in its 1967 protocol.

Cooperation is often accompanied by policy transfers that are expected to gradually improve the legal and technical capacity of recipient countries to manage migration flows (whether legal or not) and asylum. The research group “Transit Migration” observed this gradual process of policy transfer, or Europeanization, with reference to Turkish migration and border control systems, even if improvements started hesitantly.[55]

In the case of Libya, the resilience of bilateral patterns based on informal interaction shaped by short-term security concerns might qualify the impact of such policy transfers, as they might not be directly conducive to major improvements. For now, it seems unlikely that the situation of migrants and refugees in Libya will improve as a result of the reinforced patterns of cooperation. Read moreover, the drive for flexibility and operability, which thus far has shaped the bilateral cooperation on migration between Italy and Libya, might be regarded by other European actors as a workable option to overcome Libya’s reluctance to improve its refugee protection standards and human rights observance.

 

[1]. Sabine Hess and Vassilis Tsianos, “Europeanizing Transnationalism! Provincializing Europe! Konturen eines neuen Grenzregimes! (Europeanizing Transnationalism! Provincializing Europe! Contours of a New Border Regime), in “Transit Migration Forschungsgruppe,“ ed., Turbulente Ränder – Neue Perspektiven auf Migration an den Grenzen Europas [New Perspectives on Migration in the Borders of Europe] (Bielefeld: Transkript, 2007), pp. 23-39.

[2]. Franz Von Benda-Beckmann, Keebet Von Benda-Beckmann, and A. Griffiths, “Mobile People, Mobile Law: An Introduction,” Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World (Aldershot: Ashgate, 2005), pp. 1-24.

[3]. In this chapter, the term “migrant” will be used as an umbrella term for labor migrants and refugees alike. According to the 1951 United Nations Convention Relating to the Status of Refugees, a refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country.

[4]. “In 2005 Read more than Four Returns with the Charter,” Il Manifesto, August 11, 2005, http://www.meltingpot.org/articolo5826.html.

[5]. Caritas, “Summary – Statistical Dossier on Immigration,” XV Report (Rome: Idos, 2005).

[6]. European Commission, Technical Mission to Libya on Illegal Migration November 17– December 6, 2004 Report, 7753/05 (Brussels: European Commission, 2005), p. 58, http://www.statewatch.org/news/2005/may/eu-report-libya-ill-imm.

[7]. Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees, Volume 18, No. 5(E) (New York: Human Rights Watch, 2006), http://www.hrw.org/reports/2006/libya0906/.

[8]. Rutvica Andrijasevic, “How to Balance Rights and Responsibilities on Asylum at the EU’s Southern Border of Italy and Libya,” Working Paper No. 27, Center on Migration, Policy and Society (University of Oxford, 2006), p. 14.

[9]. European Commission Report 7753/05 (2005), p. 58.

[10]. European Commission Report 7753/05 (2005), p. 59.

[11]. Andrijasevic, “How to Balance Rights and Responsibilities on Asylum at the EU’s Southern Border of Italy and Libya,” p. 9.

[12]. Paolo Cuttitta, “Il Controllo Dell’immigrazione tra Nordafrica e Italia” [“Migration Control between Northern African Countries and Italy”], in N. Dentico and M. Gressi, eds., Libro Bianco: I Centri di Permanenza Temporanea e Assistenza in Italia [White Paper: Detention Centers in Italy], Comitato per la promozione e la protezione dei dirriti umani [Committee for the Promotion and Protection of Human Rights] (2006), http://www.comitatodirritiumani.org.

[13]. Bernd Riegert, “Scharfe Kritik an Flüchtlingslagern auf Lampedusa” [Harsh Criticism of Detention Centers in Lampedusa], Deutsche Welle, September 23, 2005, http://www.dw-world.de/dw/article/0,,1718149,00.html.

[14]. European Parliament, Report of the EP Delegation to Libya, 2005, http://www.europarl.europa.eu/news/expert/infopress_page/029-3243-339-1….

[15]. Andrijasevic, “How to Balance Rights and Responsibilities on Asylum at the EU’s Southern Border of Italy and Libya,”p. 11.

[16]. On October 16, 2007 a contract about the investment of $27 billion in the Libyan oil sector was signed between the two national energy companies ENI (Italy) and NOC (Libya).

[17]. Tana de Zulueta, “Gaddafi Strips Off Diplomatic Fig Leaves,” The Guardian (2009), http://www.guardian.co.uk/commentisfree/2009/jun/11/gaddafi-libya-italy.

[18]. Human Rights Watch Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (2006); Fortress Europe, Frontiera Sahara. I Campi di Detenzione nel Deserto Libico [Borderland Sahara. Detention Camps in the Libyan Desert], 2006, http://fortresseurope.blogspot.com/2006/01/frontiera-sahara-i-campi-di-….

[19]. European Commission Report 7753/05 (2005), pp. 31-37.

[20]. European Commission Report 7753/05 (2005), p. 52.

[21]. European Commission Report 7753/05 (2005), p. 7.

[22]. Sara Hamood, “African Transit Migration through Libya to Europe: The Human Cost,” Cairo: Forced Migration and Refugee Studies (Cairo: The American University in Cairo, 2006), p. 74, http://www.migreurop.org/IMG/hamood-libya.

[23]. Hamood, “African Transit Migration through Libya to Europe: The Human Cost,” p. 74.

[24]. Members are: Algeria, Libya, Mauritania, Morocco, Tunisia and France, Italy, Malta, Portugal, and Spain.

[25]. Paolo Cuttitta, “The Changes in the Fight Against Illegal Immigration in the Euro-Mediterranean Area and in Euro-Mediterranean Relations,” Working Paper (Brussels: Center for European Policy Studies, 2007) http://libertysecurity.org/article1293.html.

[26]. The Libyan police in 1999 imprisoned 23 medical staff members working at the hospital. Gadhafy said the health workers had deliberately spread HIV among the children in the hospital at the behest of the CIA and Israel’s Mossad. Except for five Bulgarian nurses and a Palestinian doctor, all other workers were immediately freed. After international protest they were released in July 2007.

[27]. “Libya, EU Start Talks on Cooperation Partnership,” Libyaonline, 2007, http://www.libyaonline.com/news/details.php?id=943 (accessed January 2007).

[28]. Sergio Carrera, “The EU Border Management Strategy FRONTEX and the Challenges of Irregular Immigration in the Canary Islands,” CEPS Working Document No. 261 (Brussels: Center for European Policy Studies, March 2007), p. 4.

[29]. Frontex, “Frontex-Led EU Illegal Immigration Technical Mission to Libya 28 May−5 June 2007,” (Warsaw: Frontex, 2007), p. 9, http://www.statewatch.org/news/2007/oct/eu-libya-frontex-report (accessed January 2008).

[30]. Frontex, “Frontex-Led EU Illegal Immigration Technical Mission to Libya 28 May−5 June 2007,” p. 9.

[31]. Frontex, “Frontex-Led EU Illegal Immigration Technical Mission to Libya 28 May−5 June 2007,” p. 19.

[32]. Meltingpot, “Frattini: dal 2008 Frontex nelle acque libiche” [“Frattini: From 2008 Frontex Operating in Libyan Territorial Waters”], http://www.meltingpot.org/articolo11163.html.

[33]. Cuttitta, “The Changes in the Fight Against Illegal Immigration in the Euro-Mediterranean Area and in Euro-Mediterranean Relations,” p. 178.

[34]. Sabine Hess and Serhat Karakayali, “Die imperiale Kunst des Regierens. Asyldiskurse und Menscherechtsdispositive im neuen EU-Migrationsmanagement” [“The Imperial Art of Governing. Asylum Discourses and Human Rights Optionals in the New Migration-Management of the EU“], In Transit Migration Forschungsgruppe, ed., Turbulente Ränder – Neue Perspektiven auf Migration an den Grenzen Europas (Bielefeld: Transkript, 2007), p. 47.

[35]. Cap Anamur is a German humanitarian association which provides assistance to war victims. On June 20, 2004, a freighter of the Cap Anamur rescued a small boat full of sub-Saharan migrants, sinking in international waters between Malta and the Italian island of Lampedusa. Owing to diplomatic tensions between Germany, Malta, and Italy, the Cap Anamur boat was not allowed by the port authorities to dock in Malta or in Italy. Eventually, as the situation onboard deteriorated, the boat docked at Porto Empedocle in Sicily. The rescuers were arrested by the Italian authorities. The rescued migrants claimed asylum in Italy but their claims were all rejected. After a period of detention, they were removed to Ghana and Nigeria.

[36]. European Commission, Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes, 388 (European Commission, 2005a), p. 2.

[37]. Hess and Tsianos, “Europeanizing Transnationalism! Provincializing Europe! Konturen eines neuen Grenzregimes! Euroepeanizing Transnationalism! Provincializing Europe! Contours of a New Border Regime, in Transit Migration Forschungsgruppe,“p. 34.

[38]. European Council, “The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens,” December 2, 2009, p. 72, http://www.se2009.eu/polopoly_fs/1.26419!menu/standard/file/Klar_Stockh… .

[39]. Andrijasevic, “How to Balance Rights and Responsibilities on Asylum at the EU’s Southern Border of Italy and Libya,”p. 15.

[40]. Ulrich Beck and Edgar Grande, “Das kosmopolitische Europa” [“The Cosmopolitical Europe”] (Frankfurt am Main: Suhrkamp, 2004).

[41]. Beck and Grande, “Das kosmopolitische Europa,”p. 62.

[42]. Cuttitta, “The Changes in the Fight Against Illegal Immigration in the Euro-Mediterranean Area and in Euro-Mediterranean Relations,” p. 199.

[43]. Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (2006), p. 56.

[44]. European Parliament, European Parliament Resolution on Lampedusa, April 14 2005, p. 2, http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=8B5BEAAD5A3946….

[45]. Fortress Europe, Frontiera Sahara. I campi di detenzione nel deserto libico [Borderland Sahara. Detention Camps in the Libyan Desert] (2009).

[46]. Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (2006), p. 27.

[47]. Frontex, “Frontex-Led EU Illegal Immigration Technical Mission to Libya 28 May−5 June 2007,” p. 10.

[48] Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (2006).

[49]. Amnesty International, “Immigration Cooperation with Libya: the Human Rights Perspective,” http://www.amnesty-eu.org/static/documents/2005/JHA_Libya_april12 (accessed March 2007).

[50]. European Commission Report 7753/05 (2005), p. 31.

[51]. Interview by author with a refugee from Liberia, Tripoli, 2006.

[52]. Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (2006), p. 26.

[53]. Interview by author with Dr. Miftah Shalgam, Ambassador of Libya to Malta, Balzan, October 2007.

[54]. Interview by author with an Eritrean woman, Tripoli, October 10, 2006.

[55]. Hess and Karakayali, “Die imperiale Kunst des Regierens. Asyldiskurse und Menscherechtsdispositive im neuen EU-Migrationsmanagement,” p. 43.