EU Financial Complicity in LibyaN migrant abuses
The EU is financially supporting Libyan and Italian authorities, who are responsible for grave violations of migrant rights, with some 90 million euros. In a complaint submitted to the European Court of Auditors, GLAN and our partners at ASGI and ARCI demonstrate that this support enables Libyan authorities to intercept and return migrant boats to Libyan territory, contrary to fundamental rules of refugee law; and that it is often funnelled into one of the world’s most notorious detention systems where migrants are held in deplorable conditions and subjected to extreme violence and in some cases, sold into slavery.
GLAN has previously sought judicial remedies against such policies in the SS v Italy and the Nivin cases, currently pending before the European Court of Human Rights and the UN Human Rights Committee. We now seek to break new legal ground, by linking the EU’s financial policy and ongoing funding programmes to its human rights obligations. The European Court of Auditors has previously pronounced upon the risk in such funding programmes. Rather than being mitigated, the risks have been realized. It is high time to suspend the relevant funding programme.
At issue are funds the EU is providing to Italy through the ‘Support to Integrated Border and Migration Management in Libya’ (IBM) programme. By allocating to the IBM programme, the EU contributes to the return to Libya of refugees and migrants picked up at sea by the Libyan authorities. There, they face well documented abusive detention conditions, including torture and slavery. The EU’s financial aid further contributes to the Libyan Coast Guard’s policies denying refugees, asylum seekers and migrants the right to leave the country. The programme has also contributed, particularly in approving the second phase of the IBM programme, to Libyan coast guard attacks on humanitarian ships rescuing migrants in distress, and its unreliability as a rescuing authority.
Channel 4 report "Starvation, disease and death in Libyan migrant detention centres" Jun 2019
The EU’s support for Libya violates the EU’s obligations under its own financial regulations, and its external actions obligations, including the EU Charter of Fundamental Rights.
The EU Commission is in breach of EU budget law for permitting the divergence of European development funds to non-development objectives such as border control.
The EU Commission is further in breach of EU budget law for failing to ensure the use of such funds is evaluated for potential human rights violations, both before they are disbursed and after they are allocated and put into use. This includes conditioning the use of funds and obtaining guarantees from implementing partners and beneficiaries to end serious ongoing abuses by requiring they adopt concrete and verifiable steps towards the necessary human rights reforms.
The result of the absence of such systems and safeguards is that the EU and its Member States are contributing to serious and systemic human rights abuses against refugees and migrants, and other international law violations by Libyan actors.
The Commission has been repeatedly asked to address the mounting allegations that the EU and Member States have been contributing to serious human rights violations and that EU funds are therefore being mismanaged. Previous attempts to ensure such financial accountability include an effort by the Council of Europe’s Commissioner of Human Rights. Yet the Commission has failed to act accordingly. Even after the Libyan authorities were in clear breach of key programme criteria, such as the requirement that they make genuine progress with regards to respect for human rights, the Commission approved the second phase of the IBM programme in December 2018. This reveals the EU’s disregard for its complicity in the violations of fundamental rights of migrants. The complaint further contests the Commission’s wrongful refusal to disclose documents and information about the assessment on which this decision was based.
Our complaint is the first to provide detailed expert analysis of the EU and Member States’ complicity in the abuses against migrants by Libyan actors as a function of their obligations under EU law on financial management. In so doing, it bridges the administrative distance created by this arrangement, which seeks to place the EU at arms-length from the harmful human rights impacts of its migration policies. Key to the complaint is the supporting opinion provided by EU budget and international law experts Prof. Dr. Philipp Dann and Dr. Michael Riegner of Humboldt University, and Ms. Lena Zagst of Hamburg University.
This action is supported by a 13-member civil society coalition, including Amnesty International, the Italian Recreational and Cultural Association (ARCI), Association for Juridical Studies on Immigration (ASGI), Avocats Sans Frontières (ASF), Cairo Institute for Human Rights Studies (CIHRS), Euro-Mediterranean Human Rights Network (EuroMed Rights), the Global Legal Action Network (GLAN), Human Rights Watch (HRW), International Federation for Human Rights (FIDH), Lawyers for Justice in Libya (LFJL), Oxfam International, Migreurop, and Saferworld. The coalition has released a joint statement in support of the complaint
The European Union’s contribution to human rights violations through the provision of financial aid, is part of border “externalization”, aimed to avoid responsibility by the EU and its Member States. This includes its policies in the central Mediterranean and the collaboration between EU institutions, Italy, and the Libyan authorities, including the Libyan Coast Guard. GLAN has sought to challenge and seek redress for the dire human consequences of these policies through two cases: S.S. v Italy, addressing, at the European Court of Human Rights, the collaboration between Italy and the Libyan Coast Guard in push-backs and resulting human rights violations; the Nivin case, addressing, at the UN Human Rights Committee, the use of merchant vessels for such push-backs.
Such practices extend to the Eastern Mediterranean, as exemplified in the EU-Turkey agreement, and in practices of maritime and land push-backs in Greece. GLAN has addressed the phenomenon of the persecution of humanitarian actors in the Salam Aldeen case, while GLAN members have analysed the conditions of detention in Greek migrant camps, and the agreements of ‘contactless control’ employed by the EU.
These practices are not only European. They are emulated across the global north, and include such egregious examples as the Australian policy of offshore indefinite detention, that GLAN and the Stanford International Human Rights Law Clinic argued, through a Communication to the International Criminal Court, constituted crimes against humanity.
While GLAN, and its members in their academic capacity, have explored the application of refugee law, human rights law, international criminal law, as well as more generally the function of the ‘legal black holes’ at the heart of the migration control policies, this action breaks new ground by technically framing the complicity of the EU in Libyan abuses against migrants through its own obligations under the law governing the EU budget, thus framing a transnational law basis for ‘financial complicity’. The action seeks to challenge the specific funding programme that supports Italy’s migration cooperation with Libya, and thus facilitates its violative effects. By focusing on this emblematic case, it brings to light the extent and severity of the consequences that result from the unaccountable nature of the framework for the allocation and use of EU funds by the EU’s ‘emergency’ trust funds, as maintained in the expert opinion.