Salah Marghani joins us for this contribution to the ongoing symposium on Libya and International Justice. Salah is a lawyer and human rights activist. From November 2012 – August 2014, he was Libya’s Minister of Justice. His efforts for justice and accountability were recognized by Human Rights Watch in 2012, which awarded him with the prestigious “Alison des Forges” Human Rights Defender Award. Make sure to check out HRW’s Hanan Salah’s piece over at Opinio Juris today as well.
It was seemingly innocuous. On 2 February 2017, the Italian Government, supported by EU, prompted a Libyan UN-proclaimed Presidential Council or (GNA), to sign a vaguely albeit smartly worded memorandum of understanding (MOU). The clear objective of the MOU was to stem the flow of refugees and migrants across the Libyan sea frontier towards Italian shores. Under the cover of the MOU and on 26 July 26th2017, GNA leader Faiz Assarraj signed and presented to the Italian Premier in Rome a letter inviting the Italian Navy to enter Libyan territorial waters and to station elements in the seaport of Tripoli, with the declared aim to jointly patrol the Libyan waters to catch and return fleeing migrants.
By the end of 2017, in an almost unbelievable move, fiercely defended by the EU, the poorly equipped Libyan Port and Maritime Transport Authority claimed and notified the International Maritime Organisation (IMO) of a vastly extended exclusive Libyan Search and Rescue (SAR) region. The zone extended 76 Nautical Miles deep into the Central Mediterranean. The SAR declaration was clearly unjustified and in total disregard to endangered fleeing refugees and migrants afloat at sea. Smartly disguised in an innocent format, it was also patently in breach of humanitarian values. Libya is a country with almost no navy or real coast guard, a country enduring an ongoing civil war, with fractured governments and forces violently competing for power and wealth. Libya could hardly meet its obligations in such a huge SAR area, one which far exceeds the depths assigned to the real and fully equipped navies of Italy and Europe. Italy and EU went as far as calling off vital SAR operations under (Sofia) in the Central Mediterranean and assigning the same to the infamous Libyan Coast Guard.
The Assarraj Government and Coast Guard was directed by the Italians and the EU to confront International NGOs working to save the lives of refugees and migrants or who were taking them to safe ports. There were many incidents where lifesaving operations by NGO vessels were confronted and prevented from doing their work. Such harassment impeded NGOs, including MSF, Sea Watch and others. In some instances, refugees lost their lives as a result.
Lack of morality and illegalities
Italian Interior Minister (at the time) Matteo Salvini ordered the closure of all Italian seaports to all rescue vessels, causing havoc and many casualties. The Italian government, followed by Malta and other rather distant EU countries and aided by the Assarraj Government, are blocking the efforts of rendering assistance in total disregard to the safety of the lives of refugees and migrants as well as in breach of spirit of Article 98 UNCLOSand the SAR Convention. The Libyan Coast Guard, practically, directed by Italy under the current arrangement, are not only pushing for the disembarkation of any refugees fished at Libya Vast SAR region to unsafe Libyan ports where they are handed back to their original captors , it has effectively closed or severely impeded such disembarkation chances to other safe ports in the region.
The realities on the ground suggest that Italy has used the Assarraj Government as a vehicle to achieve a policy to close the Central Mediterranean to movement of fleeing refugees and migrants through the application of the following:
- Sub-contracting search and rescue to the notorious Libyan Cost Guard.
- Working with, and possibly paying, local armed groups and militias to detain refugees and migrants.
- Providing political cover for the GNA and Assarraj in the face of criticism by UN agencies and human rights organizations for arresting refugees and migrants in high seas and forcibly returning them to Libya in violation of Article 98 UNCLOS and the SAR.
- Forcibly impeding the efforts of search and rescue operations conducted in the central Mediterranean by reputable and capable organization such as MSF, Sea-watch and Sea-Eye.
- Adopting various immoral tactics to delay life-saving operations, including denying rescue vessels entry into safe ports caused stoppage and causing extreme delays at the expense of the lives of the refugees.
- Conspiring with the Assarraj Government to declare an exclusive SAR zone far beyond Libyan territorial waters and its capacity for search and rescue.
- Intentional misuse of legal terminology to deceive the public in Europe and elsewhere, for example, through the reference to “illegal migration” and “traffickers.” Such misuse includes the use of term “traffickers” even when referring to rescued victims or migrants. Another example is the use of the term “search and rescue” in situations where the Libyan Coast Guard is conducting pursuit and arrest missions, confronting NGO rescuers and forcibly returning refugees and migrants to detention centers in Libya. Such misuse of the term “rescued” is misleading when migrants are taken against their will by Libyan Coast Guards back to Libya.
On the Libyan legal front, the status of refugees and migrants remains hopeless. There is a total lack of recognition of the right or refugees and any hope to join the 1951 convention on refugees. Entry into the country without proper entry visas is still criminalised and punishable by imprisonment or fines in combination with deportation. The challenges by lawyers and activists to the MOU and its consequences are still lost in a long spin and the search for a competent judicial forum to challenge it. The Libyan Supreme court has suspended an earlier decision by Tripoli Administrative Court to halt the application of the MOU, while the “Constitutional Function” of the Supreme Court to review constitutional appeals has been officially abandoned for the past four years.
The signing of the MOU and the subsequent implementation of harsh and inhumane policies towards the fleeing refugees and migrants carved a deep rift within the Libyan collective national conscious during current difficult time of conflict. In fact, all warring parties in seeking political support from Italy in their war are offering their readiness to stop the movement of refugees and migrants northwards. A few lawyers and activists tried to challenge this obvious injustice through court action, but such efforts have so far led nowhere. The Supreme Court has ruled that the Administrative Court was incompetent to rule on the dispute.
However a glimpse of hope is emerging from the Italian judiciary, which has recognized the gravity of the situation and the status of Forced Survival or Self Defence by some of the refugees caught and tried in Italy.
Closing observations and remarks
Recent high numbers of casualties in the bombing of a Detention Centre in Tajourawas just another highlight of the degree of dangerous and deplorable conditions that the returned victims are forced to endure in Libya.
The magnitude of the tragedy for refugees and migrants in their desperate journeys across Libya, on western Libyan shores and the depths of the Central Mediterranean is now the powerful firewall of death, long sought by its architects and executers. Italy and the EU may have triumphed towards the goal of Fortress Europe at the cost of caged African refugees and migrants stuck in Libyan hellholes. This triumph is only awaiting the day when all will go on a journey of soul searching about what has been done to the desperate fleeing poor young people of Africa! Hopefully, this reckoning is not in the far distant future.
In the meantime, the Libyan justice system is unable or unwilling to provide any level of justice or hold perpetrators to account. The international justice system has proved no better, especially as those decision makers involved in the current tragedy may include immune Europeans and allied Libyans.
However, on a final tone, there is still a hope against hope that common-sense moment can and will prevail sooner than later, and a more humane, legal and effective policy can be adopted to change the current dark chapter of Italian and European history versus Africa.
 Mr. Assarraj is the head of a controversial presidential council originally established under a Libyan Political Agreement signed at the Moroccan City of Assekhiraton December 15th2015). The MOU was rejected by the Libyan House of Representatives (HoR) on 7 February 2017. https://arabic.rt.com/middle_east/862624-مجلس-النواب-الليبي-مذكرة-التفاهم-إيطاليا-بطلة/#
The MOU vaguely sighted a connection to the Libyan Italian friendship and cooperation treaty 2008 while deviating therefrom to include Libyan northern maritime border.