On 3 April 2012, the Italian Interior Minister, Anna Maria Cancellieri, and her Libyan counterpart Fawzi Abdulaal concluded a Memorandum of Understanding (MoU) on security  so as to combat the unauthorized departures of migrants from Libya, which seem to be on a rise again. The arrangement refers to the 2000 UN Convention against transnational organised crime and focuses on fighting the smuggling of migrants, while facilitating the voluntary return of migrants to their origin country, in cooperation with the International Organisation for Migration (IOM). To this end, it mentions the training of the Libyan police to control borders, recommends information exchange between the two countries and also the creation of a system of data management for civil registries. As early as June 2011, the Libyan National Transitional Council (CNT) and Italy had concluded a Memorandum of Understanding to manage migratory flows; this undiscussed agreement was denounced though by MSF as a misleading response to departures coming out of a state of war . It was supposed to guarantee that the new Libyan government would acknowledge the obligations previously undertaken by Gaddafi’s regime.
The new MoU indeed recalls agreements concluded between Italy and Libya before the revolution. Already in December 2000, the two states had decided to work together against terrorism, drug smuggling and irregular migration, and at that time too, the agreement was not published  or discussed. In December 2007, an agreement was signed to establish joint patrols in the Mediterranean, followed in August 2008 by a friendship treaty, which entered into force in the first half of 2009. From 2003 and 2004, Italy and Libya organised the collective return to Libya of those migrants who had arrived in Lampedusa after a transit in Libya. After 2009, direct push-back was facilitated and boats could be intercepted at sea and returned to Libya, before they made land on Italian territory .
Yet, the revolution launched on 17 February 2011 led to the suspension of these agreements. Hundreds of thousands of migrants fled war-torn Libya , and a minority, stranded in the country, tried to leave it from the Mediterranean coasts. Among the 58,000 migrants who reached Europe after crossing the Mediterranean in 2011, 56,000 landed in Italy and half of these were Tunisian . While the departures from Tunisia were mostly “voluntary”, exits from Libya were driven by war and the vast majority were refugees, from Somalia, Eritrea or Ethiopia. According to UNHCR estimates, more than 1,500 people drowned or went missing while attempting to cross the Mediterranean to reach Europe in 2011 . Migrants and refugees take incredibly high risks and dangers may be compounded by the attitude of some authorities at sea.
Cooperation between Italy and Libya to counter migration has been long denounced. Feeling powerless in the face of migrants’ endless attempts to cross the Mediterranean, never mind the strengthening of border controls in the last decade, European states have let wild practices expand: boats pushed back to Libya, failure in assisting migrants at sea, collective expulsions… For years, this kind of behaviour has been denounced without an adequate response or an official condemnation, due to a number of obstacles. On 14 April 2005, a resolution of the EU Parliament condemned the collective expulsion to Libya on 17 March 2005 of 180 migrants who had arrived at Lampedusa . Arguing its lack of competence because of an incomplete communautarisation of asylum law, the European Commission did not intervene . The European Court of Human Rights (ECHR) also asked for interim measures on 10 May 2005, urging Italy to suspend the expulsion of eleven migrants. The Court was then constrained to remove the case from its list on January 2010 for a lack of factual elements : it had become impossible to find the migrants, by then back in Libya.
Why will things change ?
Interestingly, changes will not come from the fall of Gaddafi, the war in Libya or the expectation of a future Libyan democracy. They will result from fundamental legal and institutional steps in Europe. On 23 February 2012, the ECHR condemned Italy for having pushed migrants back to Libya on 6 May 2009 . A group of 200 people who set off from the Libyan coasts was found at sea by Italian forces, and accompanied back to Libya. Thanks to the CIR (Consiglio Italiano per i Rifugiati), whose presence in Libya had been authorised in 2009, 24 persons out of 200 were taken in charge and decided to refer to the ECHR to report how they had been unable to file a request for asylum before being brought to Libya, where most of them were detained. In its judgement, the Court found that Italy had violated article 3 of the Convention for the Protection of Human Rights, since there was a real risk that the applicants would be subjected to inhuman treatment and torture in Libya and that the applicants had been exposed to the risk of arbitrary repatriation. The Court argued that Italy had also violated article 4 of Protocol n°4, which prohibits the collective expulsion of aliens, since the Italian authorities failed to carry out any form of examination of each applicant’s individual situation. The Court also held that there had been a violation of article 13 as the applicants were unable to lodge their complaint with a competent authority . Most importantly, it stated that Italy could not “evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya”.
In addition to this historic case-law at European level, EU law has also taken a significant step which implies that such practices can no longer be tolerated. On 1 December 2009, the Lisbon Treaty entered in force, making the European Charter for Human Rights compulsory as primary law and confirming the full communautarisation of EU asylum policy. This means that EU Member States are compelled to respect human rights, but also that the European Commission shall check member states’s obligations in terms of human rights and the right of asylum. On 6 March 2012, the European Ombudsman opened an inquiry concerning the implementation by FRONTEX of its fundamental rights obligations  during its border control missions . The attitude of vessels at sea is also the focus of a report adopted by the Parliamentary Assembly of the Council of Europe on 24 April 2012 to raise this fundamental question: “Lives lost in the Mediterranean Sea: who is responsible?” . It points to the failure of NATO, Italy, Spain and Malta and other countries in meeting their obligations to respond to migrants’ distress calls at sea in March 2011. Lastly, NGOs going to national jurisdictions for similar practices have been multiplied , following a similar trend in Australia, the pioneer in externalising border control.
With the conclusion of this new MoU with Libyan representatives, Italy does not seem to have learned from experience. This arrangement is part of a long series of ‘gentleman’s agreements’ which are not submitted to any debate in Parliament and which entirely lack transparency. Italy may put an end to this practice of concluding agreements in simplified form which avoids debates and enables late publication. The security dimension should not be a pretext to discard public scrutiny over human rights obligations.
Italy has just entered into a new security pact with Libya, that is no longer led by Colonel Gaddafi, yet that cannot guarantee any protection of human rights. Libya is still not party to the 1951 Geneva Convention; it has still no procedure for granting protection to refugees. Above all, the country is wracked by chaos and violence with wide-spread xenophobia and the authorities cannot even protect their own population. In January 2012, the leader of the CNT tried, in a declaration, to deter migrants from coming back to Libya, arguing that the Libyan authorities would be unable to guarantee their security. Since then, the situation has deteriorated.
In this context, the European Commission should be extremely cautious and vigilant about bilateral cooperation that Member states could be tempted to develop. It has the responsibility of checking their compatibility with and their respect for EU law. Cecilia Malmström came to Italy twenty days after the signature of this pact between the Italian and Libyan provisory governments to discuss asylum policy and Schengen rules . She might have taken the opportunity to warn Italy about resuming former policies in private talks. But she made no public reference to this. Amnesty International in Italy has already requested that the content of the MoU was revealed and that its implementation should be submitted to the capacity of both states to respect the international human rights law and refugee rights .
Given the current uncertain disastrous situation in Libya, preventing perilous departures in the Mediterranean should not depend on training Libyan policemen to better control the borders and contain people within Libyan territory. When the EU Council President Van Rompuy addressed the political situation in Libya in the European Parliament on 5 April, he announced the launch of an EU mission, which might include giving protection to refugee camps . Besides, the Joint EU Resettlement Programme, which was voted on 29 March to enhance refugee resettlement, appears as an appropriate way to scale down the numbers of refugees attempting Mediterranean crossings while taking into account the present delicate situation in Libya. Member states cannot be constrained to resettle. But they have been called upon to profit from the opportunity offered by the European Refugee Fund, whose funding priorities for 2013 include the resettlement of refugees registered by UNHCR in Libya, Tunisia and Egypt; the three of these being covered by a Regional Protection Programme. Then, last, while it is still necessary to remind EU Member states of their duties based on asylum law, the respect of fundamental rights obligations applies to refugees as well as to any person, be s/he a voluntary migrant, who needs to be rescued and cannot be returned to a country where s/he could be subjected to inhuman treatment. Today, Libya is not a safe place: forced or voluntary migrants trying to leave should not be pushed back there.
Delphine Perrin, MPC Research Fellow
 According to a press release of the Interior Ministry on 3 April 2012 : “Cancellieri a Tripoli a colloquio con le autorità libiche: siglata un’intesa per il contrasto al traffico di migranti”. The text of the Understanding has not been published.
 http://www.msf.fr/presse/communiques/msf-condamne-toute-initiative-menant-au-refoulement-boat-people-en-libye. The text of the Understanding can be found on the following website: http://download.repubblica.it/pdf/2011/migrazione.pdf
 E. Paoletti, F. Pastore , “Sharing the dirty Job on the Southern Front? Italian-Libyan relations and their impact on the European Union”, IMI Working Paper n°29, Dec.2010: 40.
 Human Rights Watch reports how 75 migrants were transferred by the Italian Coast Guard to a Libyan patrol boat which took them to Tripoli in June 2009. Human Rights Watch, “Pushed back, pushed around”, 21 septembre 2009, http://www.hrw.org/en/node/85582/section/9
 In June 2011, UNHCR reported that Tunisia had received 540,000 people fleeing Libya and Egypt 356,000 people. UNHCR Update n°30, “Humanitarian situation in Libya and the neighbouring countries”, June 2011.
 UNHCR Briefing Note, “Mediterranean takes record as most deadly stretch of water for refugees and migrants in 2011”, 31 January 2012.
 European Parliament resolution Lampedusa, April 14th 2005, P6_TA-PROV(2005)0138.
 Franco Frattini was at that time the Justice and Home Affairs commissioner.
 E. Paoletti, F. Pastore, op.cit.: 17.
 Judgement of the Grand Chamber of the European Court of Human Rights on the case of Hirsi Jamaa and Others v. Italy (Application No. 27765/09), 23 February 2012. The judgement can be found on this website: www.unhcr.org/refworld/pdfid/4f4507942.pdf
 See the comment of this judgement: http://www.hrlc.org.au/hirsi-jamaa-and-others-v-italy-2012-echr-application-no-2776509-23-february-2012
 Case OI/5/2012/BEH-MHZ, See http://www.ombudsman.europa.eu/fr/cases/correspondence.faces/en/11316/html.bookmark, and also the MPC policy brief https://www.migrationpolicycentre.eu/frontex-vers-une-meilleure-prise-en-compte-des-droits-fondamentaux/#note
 On 15 August 2011, a study requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) was also released on Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies (Frontex, Europol and the EASO).
 Report of the Committee on Migration, Refugees and Displaced Persons, issued on 29 March 2012; Rapporteur: Ms Tineke STRIK, Netherlands, Socialist Group. The report was voted and approved by the Assembly on 24 April 2012.
 See the request of a group of 9 NGOs to the Tribunal de Grande Instance de Paris against the French army on 11 April 2012 on the FIDH website, http://www.fidh.org/63-migrants-morts-en-Mediterranee