Summer 2017 has come to an end and, as every year, it is time for the post-facts evaluation for the European Union and its Mediterranean Member States on the ongoing so-perceived migration crisis. Summer is in fact generally considered the harshest season of the year in terms of inflows’ management.
In the last few months, the European Union has strengthened its policy of partnership with third countries – especially with African countries – first and foremost with Libya. The specific political situation in Libya, together with the alleged violations of human rights against migrants in the management of the Central Mediterranean route, have caused some concerns by institutions, international organisations and, most of all, the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. This post aims to provide a critical overview of the ‘lights and shadows’ relating to the recent management’s policy of the European Union on the central Mediterranean route in partnership with Libyan authorities.
The 13th report on Libya’s situation addressed by the ICC Prosecutor Office to the UN Security Council
On the 8th of May 2017, on the occasion of the 13th report on the situation of Libya presented to the United Nations Security Council (hereinafter “the Council”), the Prosecutor of the ICC highlighted her Office’s concerns with respect to the country situation. In particular, she underlined that the Office of the Prosecutor ‘continues to collect and analyse information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya’ and that it (…) is carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya should the Court’s jurisdictional requirements be met.’.
The report also mentions data from the International Organization for Migration (hereinafter “IOM”), according to which a significant number of migrants have attempted to reach the Italian coasts from Libya throughout the whole 2016. The alarming issue – as reported – relates to the large amount of unofficial detention centres apparently arranged in Libya for migrants and, overall, to the inhumane conditions and poor treatment of detained migrants. According to the allegations considered by the Prosecutor, migrants were victims of serious crimes, involving any form of violence (from torture to sexual violence), human trafficking, exploitation and smuggling by both State and non-State actors, including militias.
The report concludes on migration’s matters by recalling the mutual engagement on the side of the ICC and the European Union as a whole (together with several international agencies and the Libya’s Government of National Accord) aiming at sharing information and collect elements related to the alleged crimes against migrants in Libya, as well as to the conduct of facilitation and financing of illegal migration through Libya and the Central Mediterranean route.
The Prosecutor’s statement, together with the alarming situation in Libya, reveals the fragmented and alarming framework which the EU must deal with on the “externalization” of the migration matters.
The European Union summer agenda on central Mediterranean route
The 6th of September, the EU Commission (hereinafter “the Commission”) submitted its 5th Progress Report on the Partnership Framework with third countries under the European Agenda on Migration. The Report specifically deals with the co-operation with Libya on migration through the Central Mediterranean route and sums up the main steps recently taken by the European Union. After the apparently ‘successful’ implementation of the EU – Turkey agreement on the Balkan route, which has reduced the pressure on Greek borders, the Report focuses on the Italian situation, considering the massive inflows from some African states through the Libyan route. The report recalls the IOM data, showing the downward trend of arrivals via the Central Mediterranean route in comparison with summer 2016 as a positive consequence of the EU- funded actions, including the improved co-operation with Libya in border control activities.
In particular, the Commission drafted an Action plan to ‘support Italy, reduce pressure and increase solidarity’. Among its main conclusions, the Commission’s plan suggested to adopt measures by EU actors, European agencies and external partners to support Italy in reducing inflows, to increase the amount of funding to be allocated to the North – Africa window of the EU-Africa Trust Fund and to help engage with Tunisia, Egypt and Algeria to encourage them to join the Seahorse Mediterranean Network.
As the Commission pointed out, the strategy of reducing outflows and enhancing security and stability implies a presumably successful combination of factors, namely: the cooperation in monitoring and increasing borders’ control, counter- terrorism activity and national security prevention through the improvement of the EUBAM Libya programme, the involvement of North African countries authorities in anti–smuggling and anti–trafficking programmes, such as the EUNAVFOR Med Operation Sophia and the SEAHORSE Mediterranean Project.
By increasing its material support to international organisations and strengthening the partnership with North African countries, the Commission aims to grant a satisfactory standard of protection to migrants and refugees and assist individuals in voluntary return from Libya to countries of origin. The pragmatic cooperation in the field of assisted and voluntary returns seems to be functional to the ‘discouraging’ policy, adopted by the European Union to ensure the asylum system’s integrity by reducing irregular movements. On the other hand, the Commission continuously stresses the importance for Members States to implement resettlement policies for those in need of international protection (while waiting for the announced reform of the European Common Asylum Legislation), also through the assistance provided by the UN forces.
Except for the EU-Turkey agreement’s experience -whose consequences in terms of human rights implications are not entirely clear yet– this practice, known as the ‘externalization of borders scheme’, is relatively new, at least for the European Union. It might imply several critical issues. Firstly, the so called ‘assisted voluntary return’ policy, which seems to base the entire externalization partnership, may raise some issues in terms of compatibility with the principle of non–refoulement, depending on the different situations of countries of origin and transit. In fact, the policy of massive voluntary returns does not grant a satisfactory case by case analysis of individuals’ entitlement of international protection, hence it risks to go beyond the limits of the principle of protection against return to a country where a person has reason to fear persecution, as established by several international instruments relating to refugees, both at the universal and regional levels. Secondly, concerning the ICC Prosecutor’s statement and report, the shared management of such a sensitive matter with a third country facing a serious political instability, such as Libya, might lead to grave consequences in case of perpetrations of international crimes. The institutional agenda of the EU summits, however, does not seem to have these issues at the heart, notwithstanding the copious declarations made also during the last “restricted” Paris summit.
This might become even more delicate in the light of the agreement of mutual cooperation and assistance, signed in 2006, which binds the European Union and the ICC, according to which the EU is committed to cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority
The solutions adopted by the European Union on the central Mediterranean route were originally the result of a short-sighted approach, reacting to an emergency. Nevertheless, the EU and its Member States should not ignore the ongoing violations allegedly committed against thousands of migrants in a climate of uncertainty about the identification of State and non-State actors’ responsibilities.
While the ICC Prosecutor expresses her Office’s concerns for the alleged human rights violation against migrants in Libya, the European Union tries to reinforce its partnership with African third countries, first and foremost with Libya, with the aim to ensure a prominent level of borders’ protection against illegal inflows, without, at least formally, forgetting its own core principles and duties on fundamental rights protection.
The EU should also respect its previous commitments with the ICC – and the International community as a whole -to cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority.
Europe’s role in the world and our responsibility at the international level in these turbulent times are growing’ and hopefully so as ‘the EU’s continued commitment to defending our shared values of freedom, democracy, the rule of law and respect for human rights, and to promoting these values in Europe and around the world.
The time for a new farsighted approach of the EU to migration matters might therefore have come.
 The report has been adopted pursuant Resolution 1970 (2011) of the UN Security Council (S/RES/1970 (2011).
 Statement of ICC Prosecutor to the UNSC on the Situation in Libya (08th May 2017), para25-29.
 IOM, Libya Migration Crisis Operational Framework (Mcof). 7, accessed on 26th September (https://www.iom.int/sites/default/files/our_work/DOE/MCOF/MCOF-Libya-2017-2019.pdf).
 Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.
 Thirteenth Report of The Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.
 Fifth Progress Report on the Partnership Framework with third countries under the European Agenda on Migration, Brussels, 6.9.2017 COM(2017) 471 final, para 3.
 i.e,. additional funding and material support to Italy and to Libyan authorities to manage and prevent movements, readmission and resettlement agreements with some of countries of origin or transit, mobilisation of EU Agencies in cooperation with Libyan authorities to strengthen controls at the southern border, accelerate Assisted Voluntary Returns from Libya and Niger to countries of origin, working with the IOM.
 Gabriella Carella, ‘Il sonno della ragione genera politiche migratorie’ (SIDIBLOG, il blog della società italiana di diritto internazionale e diritto dell’Unione Europea, 11 Settembre 2017) http://www.sidiblog.org/2017/09/11/il-sonno-della-ragione-genera-politiche-migratorie/ accessed on 11th September 2017.
 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Article 33(1).