Funding Human Rights Abuses

– Who is held Accountable for Migration Deterrence?

By Alina Immken

With migration increasingly being portrayed as a threat to the European Union, the focus of migration management has shifted towards preventative security. Proposals by Italian Prime Minister Paolo Gentiloni and German Chancellor Angela Merkel have suggested outsourcing management to neighbouring countries as a new solution, effectively reducing arrivals by restricting access to Europe entirely. 

Increased border security at major migration transit points, such as those along the central Mediterranean migration route, has not only reduced arrivals but also increased fatalities. In recent years, the central Mediterranean migration route has been named the deadliest. 

This raises the question: with these new migration deterrence strategies in place, who is responsible for upholding human rights in migration management? 

The EU’s Externalisation Policies

Since the 1980s, the EU has been developing regulations on movement and asylum, most notably through the Schengen Treaties and the Dublin Convention, which have reshaped the management of internal borders and asylum claims within the EU. While these policies were officially presented as improving the European Asylum System, they also strengthened border controls and were partly designed to curb entry into the European Union. Cooperation with bordering countries to address the “root causes” of migration was desired. This cooperation included funding and organising migration management in countries bordering the EU, effectively creating a European buffer zone. This buffer zone sought to prevent attempts to migrate to the EU. 

These policies were established alongside the EU’s increased portrayal as a global human rights enforcer. While creating regulations and laws to ensure safer facilitated travel for the individual, treaties such as the Dublin Regulation still prioritised the safety of the state. The emergence of the safe third country concept, for example, allowed states to deny asylum to individuals who had already passed through countries deemed “safe”. Due to a lack of unified application of the label, however, European states increasingly determine the safety of countries based on national and political interests rather than focusing only on human rights records. This has made it easier to refuse refugees seeking asylum.

Externalisation in the Case of Libya

One of the most pertinent cases of externalisation of migration management is currently occurring between Italy and Libya. The central Mediterranean migration route connecting North Africa to Europe has been one of the largest active migration pathways; however also the deadliest. Colonial ties between Italy and Libya and the increasing migration of Libyans into Italy led to the formation of the first migration deterrence deal: The 2008 Treaty of Friendship, Partnership and Cooperation.  This deal stipulated that while Italy would pay five billion dollars over twenty-five years as colonial compensation, Libya would cooperate on migration control by intercepting and pushing back migrants attempting to cross the Mediterranean. However, in 2011, the Libyan state under Gaddafi collapsed and fragmented, and migration into Italy surged, peaking at around 181,000 sea arrivals. In 2017, Italian Prime Minister Paolo Gentiloni and the new Libyan government, backed by the UN, signed the Memorandum of Understanding. As part of the deal, Italy would fully fund, train, equip, and maintain the Libyan Coast Guard, and pass coordinates of migrant boats to Libya for interception. The intercepted migrants would then be transferred to detention centres on the Libyan coast, which are similarly funded by Italy. Intervention and sea rescues by NGOs were prevented by Italy through criminal investigations. This deal was portrayed as a successful partnership to fight against organised crime, smuggling business networks, and trafficking. 

This portrayal contrasts with the treatment that migrants face inside the detention centres. The weak enforcement of regulations allows frequent accounts of torture, assault, inhumane treatment and trafficking of migrants. The UN has urged Libya to close the detention facilities; however, no large changes have been made. Intercepting migrants at sea violates international law in several ways. Returning migrants to Libya without assessing the individuals’ needs risks violating the principle of non-refoulement, which states that no person can be returned to a country in which they are at risk of harm or persecution. Libya’s classification as a safe harbour remains highly contested, with the Italian Court of Cassation ruling that the return of migrants to such conditions is unlawful. The Italy-Libya deal states that both countries have the obligation to ensure safe detention centre conditions, and both must adhere to international law. The inhumane treatment inside Libya’s detention facilities violates the European Convention on Human Rights in areas of torture, degrading treatment, and non-refoulement. 

Although Libya did not sign the 1951 Refugee Convention, giving it fewer treaty-based obligations to maintain a fully protective refugee system, human rights complaints can still be brought to the African Commission of Human and Peoples’ Rights or the African Committee of Experts on the Rights and Welfare of the Child. However, civil war, political fragmentation and the influence of armed groups inside the country have severely weakened institutions, making law enforcement slow and non-existent in practice. For Italy, European law recognises that EU Member States also bear extraterritorial responsibility to comply with human rights standards. However, the European Convention on Human Rights is only applied extraterritorially if states exercise effective control over a person or territory abroad. On this basis, decisive action has only been taken against violations in cases involving the exercise of physical control by Italy. One example of this was Hirsi Jamaa and Others v. Italy, where Italian police pushed migrant vessels back to the Libyan shore. However, by outsourcing the pushback to buffer states such as Libya, Italy organises the return of migrants without establishing jurisdiction, effectively deflecting responsibility. As a result, migrant deterrence policies that enable human rights violations have remained without accountability.

Closing the Accountability Gap

The persistence of human rights violations linked to migration deterrence is shaped by legal definitions of state jurisdiction. If this definition remains restrictive, the externalisation of migration management to EU border states with weaker law enforcement systems will remain an attractive model for European states to avoid accountability while reducing migration inflows. Expanding the definition, for example, to include funding as a form of effective control, will ensure that human rights must be protected while managing migration. EU Member States would thereby be held responsible for cooperating exclusively with states that maintain strong human rights records and have stable legal and institutional frameworks. 

Sources: Al Jazeera, European Court of Human Rights, Politico Europe, Journal of Ethnic and Migration Studies, Netherlands International Law Review, Amnesty International, World Organisation Against Torture, Human Rights Watch

Written by Alina Immken

Edited by Olivia O’Mahony