Tag Archives: Italy-Libya Friendship Agreement

ECtHR Grand Chamber to Deliver Judgement in Hirsi v Italy on 23 February

The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.   On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber.  The argument before the Grand Chamber occurred on 22 June 2011.

Today’s statement from the CoE web site:

“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya.  The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.

Principal facts

The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.

The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.

At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.

Complaint

The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.

They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.

The application was lodged with the European Court of Human Rights on 26 May 2009.

On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.

The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):

- the Office of the United Nations High Commissioner for Refugees,

- the Office of the United Nations High Commissioner for Human Rights,

- the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),

- the non-governmental organisation Human Rights Watch, and

- the Columbia Law School Human Rights Clinic.”

Click here for CoE Statement.

Click here for Press Statement from ECtHR.

Click here for previous post on the argument before the Grand Chamber.

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Libya Asks EU to Assist with Renovation of Migrant Detention Centres

At a press conference held last week, Libyan Interior Minister Fawzi Abdelali asked the European Union for assistance in dealing with new immigration flows and specifically requested assistance to renovate 19 existing migrant detention centres.  (Global Detention Project identified 27 dedicated immigration detention centres in Libya as of late 2009.)

Libyan officials have said recently that irregular migration flows are resuming.  AFP reported that Libyan interior ministry spokesman General Abdelmonem al-Tunsi said on 19 January “that illegal immigration had resumed since the end of the anti-Kadhafi revolt” and “thousands of people from … Syria were also entering through the Massad terminal on the border with Egypt, apart from Africans infiltrating through the southern borders.”

Italian Prime Minister Mario Monti traveled to Tripoli on 21 January to meet with the Libyan NTC.  Prior to his trip Amnesty International sent Monti a letter urging him to address numerous matters with the Libyans, including the eradication of torture, reforming the criminal justice system, and ratifying the Refugee Convention.

Amnesty also called upon Italy not to resume push-back operations at sea and to refrain from cooperating with Libya on other migration control practices until appropriate reforms are instituted within Libya.  There are fears that Italy is moving towards resuming coordination with Libya on immigration control matters.  Italian Interior Minister Anne Marie Cancellieri is reportedly scheduled to travel to Tripoli next month to discuss bilateral cooperation on immigration.

Translated excerpts from Amnesty’s press statement regarding the AI letter to PM Monti:

“With regard to cooperation on migration between Italy and Libya, Amnesty International calls on the Italian Government:

  • To desist from conducting any operation of ‘refoulement’ (deportation) at sea to Libya and cooperating with Libya to intercept migrants and reject them;
  • To set aside the Memorandum of Understanding on ‘migration control’, signed with the National Transitional Council (CNT) on June 17, 2011, until a thorough review is conducted of the impact on human rights agreements signed by the two countries in this area, and until the necessary changes have been introduced in order to ensure that the ‘immigration control’ is never carried out at the expense of human rights;
  • To ensure that all forms of cooperation with the Libyan authorities are absolutely transparent and subject to the commitment and ability of both parties to fully respect the human rights of asylum seekers, refugees and migrants, and are consistent with the international law of human rights and international refugee law….”

Click here for AI Letter. (IT)

Click here (EN), here (IT), here (EN), here (IT), and here (IT) for articles.

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Statewatch Analysis: The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states

Statewatch released an Analysis by Yasha Maccanico entitled “The EU’s self-interested response to unrest in north Africa: the meaning of treaties and readmission agreements between Italy and north African states.”  The Analysis provides a description of Italy’s responses to the migrant arrivals in 2011 caused by the unrest in North Africa.

Excerpts:  “The ‘crisis’ reveals questionable practices and routine abuses – The measures adopted in response to the increasing number of migrants arriving from north African countries serve to highlight a number of practices that have become commonplace in Italy in recent years.

The first of these is a widening of the concept of ‘emergency.’ Calling an emergency gives the government a wider remit to derogate from specified laws so as to resolve situations that cannot be dealt with through ordinary measures….

Although the situation in north Africa was worrying, the emergency was called when slightly over 5,000 migrants had arrived. An analysis by Massimiliano Vrenna and Francesca Biondi Dal Monte for ASGI notes that the government has repeatedly called and extended states of emergency since 2002 to deal with immigration, which is treated as though it were a “natural calamity” even when there is a wholly predictable influx of people from third countries. The urgent need specified in decrees declaring a state of emergency is to conduct ‘activities to counter the exceptional – later referred to as massive – influx of immigrants on Italian territory’ (as happened on 11 December 2002, 7 November 2003, 23 December 2004, 28 October 2005, 16 March 2007, 31 December 2007, 14 February 2008 for Sicily, Calabria and Apulia and was extended to the whole nation on 25 July 2008 and 19 November 2009), stemming from a prime ministerial decree of 20 March 2002. Thus, Vrenna and Biondi Dal Monte’s observation that the emergency is ‘structural’ appears well-founded. It has serious repercussions for the treatment of migrants (see below) and the awarding of contracts outside of normal procedures, with the involvement of the civil protection department whose competencies have been expanding considerably.

The second practice involves the expulsion, refoulement or deportation of migrants outside the limits and procedures established by legislation for this purpose. The failure to identify people, to issue formal decisions on an individual basis to refuse them entry or expel them, or to give them the opportunity to apply for asylum or other forms of protection, was a key concern when boats were intercepted at sea and either the vessels or their passengers were taken back to Libya between May and September 2009, when 1,329 people were returned. These rights were also denied to people arriving from Egypt and Tunisia in application of readmission agreements in the framework of the fight against illegal migration. Their presumed nationality was deemed sufficient to enact expulsions to these countries, because ongoing cooperation and good relations with Italy appeared sufficient to indicate that they were not in need of protection, regardless of the situation in their home countries. ….

The third practice is the ill-treatment of migrants held in detention centres. Without dealing with this issue in depth, it is worth noting that what could be viewed as arbitrary detention is occurring on a large scale, in the absence of formal measures decreeing detention and without the possibility of appealing against decisions. In fact, after landing, migrants are summarily identified as either ‘illegal’ migrants or asylum seekers, largely on the basis of their nationality….”

Click here for Analysis.

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EJML Article, B Nascimbene and A Di Pascale: “The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in Italy from North Africa”

The latest edition of the European Journal of Migration and Law, Volume 13, Number 4, contains an article by Bruno Nascimbene, Professor of European Union Law, Faculty of Law, University of Milan, and Alessia Di Pascale, Research Fellow, European Union Law, Faculty of Law, University of Milan, entitled “The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in Italy from North Africa”.

Abstract: “The ‘Arab spring’ which spread in early 2011 and the consequent exceptional influx of people that arrived on the Italian coasts from North Africa put the national reception and asylum systems under particular pressure, also raising the debate on the status to be attributed to these people. Faced with a situation out of the ordinary, Italy immediately addressed a request for help to the European Union, which has revealed the difference of views and mistrust existing between Member States in relation to these issues. This episode also calls into question the scope and effectiveness of the EU migration management framework, particularly in case of strong and unexpected pressure, and its implementation in a true spirit of solidarity.”

Click here for link.  (Subscription or payment required.)

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New Italian Foreign Minister: Reactivation of Italy-Libya Friendship Treaty is Crucial

In a speech on 30 November to Parliament, Italy’s new Foreign Minister, Giulio Terzi, said the 2008 Italian-Libyan Friendship Agreement is crucial to bilateral relations between the two countries and that it therefore needs to be reactivated.  He announced he will travel to Libya as soon as the new Libyan government is ready to receive him.

Click here, here, and here for articles.  (IT).

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Malmström: Commission Hopes Migration Talks With Libya Will Begin Soon

In response to a parliamentary question submitted by Italian MEP Fiorello Provera (EFD, Northern League) regarding the “control of migratory flows in the southern Mediterranean”, Commissioner Cecilia Malmström provided a written response on 25 October in which she stated that “[t]he Commission hopes [migration discussions] will start as soon as possible with the Libyan authorities.”

In his question, MEP Provera praised the Italy-Libya Friendship Agreement:  “In an example of successful migration control, Italy and Libya signed a friendship treaty in 2008, which included measures to put Libya in charge of its 2 000 km coastline to stem the flow of illegal migrants into the EU. The agreement had an enormous impact: in 2008, 40 000 migrants attempted to cross illegally into Italy, but according to The Economist, the number of migrants was reduced to 4 406 in 2010. However, following the popular uprising against Gaddafi forces at the start of 2011, 27 000 immigrants managed to cross from Libya into Europe.”

Full text of Ms Malmström’s written response:   “The Commission would like to underline that the discussions which were held on 4 October 2010 in Tripoli by the Members of the Commission responsible for Home Affairs and Enlargement and European Neighbourhood Policy took place in a context, and with interlocutors, which have profoundly changed.

Although the tentative list of common actions identified in October 2010 (1) may still represent a basis for future cooperation between the EU and Libya in the areas of migration, asylum, visa policy and border management, it is clear that the pattern and content of this future cooperation will have to be substantially revised on the basis of new discussions. The Commission hopes these will start as soon as possible with the Libyan authorities.

The revision of the cooperation with Libya, in any case, is necessary also to take into account several important changes which have taken place not only in Libya but also in the EU since the spring.

In particular, the European Council of 24 June 2011 which approved a new policy approach towards the Southern Mediterranean countries. This approach will be characterised by the launch of a Dialogue on Migration, Mobility and Security with these countries aimed at reinforcing cooperation and strengthening relations with Europe’s southern neighbours.

(1) ‘common actions aimed at preventing irregular migration, addressing more effectively its consequences and root causes, promoting the use of the regular channels of migration and mobility, avoiding further loss of migrants’ lives as well as to protecting their fundamental rights’.”

Click here for Question and here for Answer.

Click here for article. (EN)

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Italy and Libyan NTC Take Further Steps to Reactivate Italian-Libyan Friendship Agreement

Italian Foreign Minster Franco Frattini traveled to Tripoli on 30 September for meetings with the NTC President Mustafa Abdel Jalil and Prime Minister Mahmoud Jibril.  Frattini and Jibril met one week earlier on the sidelines of the UN General Assembly Meeting.  Italy and the NTC signed a memorandum of understanding to create a joint coordination committee whose function will be to prepare for the reactivation of Italy-Libya Friendship Agreement as soon as a new Libyan government assumes office.

Click here and here for articles. (IT)

Click here for statement from Italian Foreign Ministry. (IT)

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CoE Human Rights Commissioner Releases Report on Italy’s Treatment of Roma and Migrants

Council of Europe Commissioner for Human Rights, Thomas Hammarberg, just released a report on Italy based upon his visit to Italy on 26-27 May 2011.  The report addresses concerns relating to the treatment of the Roma and Sinti and relating to the treatment of migrants, including migrants arriving from North Africa.

Excerpts:

“Strasbourg, 7 September 2011 – CommDH(2011)26 – English only

Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Italy from 26 to 27 May 2011

[***]

II. Protection of the human rights of migrants, including asylum seekers

Rescue operations and interceptions at sea

The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats crossing the Mediterranean. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, which is all the more indispensable in the current context of forced migration from Libya. He calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations, including any lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue. With reference to the operations carried out jointly with Libya in the central Mediterranean aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called push-backs), the Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement.

[***]

II. Protection of the human rights of migrants, including asylum seekers

44. Following the political unrest in Tunisia and the armed conflict in Libya, the number of migrants, including asylum seekers, arriving on boats to Italy, and in particular Lampedusa, has increased sharply. Since mid-January, approximately 24 000 people have arrived from Tunisia. At the end of March 2011, migrants also started to arrive on boats from Libya (the biggest groups being nationals of Nigeria, Ghana, Mali, Ivory Coast, Bangladesh, Eritrea and Somalia) and by 23 June their number had almost reached 20 000. In addition to arrivals from Tunisia and Libya, some 2 000 migrants landed in southern Italy on boats coming from Egypt, Greece and Turkey. On 23 June, the total figure of arrivals by sea to Italy since January 2011 therefore stood at around 46 000.

45. It is clear that these events pose a number of challenges relating to a wide range of human rights, including the right to seek asylum and the right to life, notably in connection with rescue operations at sea. With most of the migrants from Northern Africa seeking refuge and a new life in “Europe” generally, and not specifically in the countries that they reach first, the European dimension of these challenges is equally clear. Certainly, the ongoing military operations in Libya and their impact on migratory movements bound to Europe has lent further visibility to this European and international dimension. Accordingly, the Commissioner has on many occasions called for a greater European role, in the form of solidarity and co-operation in meeting the human rights challenges relating to arrivals of migrants, including asylum seekers, from Northern Africa, but unfortunately the response has been limited. The Commissioner reiterates this call in respect of the situation with which Italy is confronted at the moment.

46. At the same time, the Commissioner wishes to stress that Italy must abide by its human rights obligations vis-à-vis all migrants, including asylum seekers, who find themselves within Italy’s jurisdiction – a responsibility which in the Commissioner’s view has not been met fully. While the Italian authorities have taken a number of steps to protect the human rights of these persons, from rescue at sea through to reception and access to asylum, concerns remain in different subject areas, some of which are highlighted below.

47. More generally, the Commissioner wishes to stress that a more objective and balanced representation of the migration movements prompted by the events in Northern Africa, and notably the conflict in Libya, would assist in ensuring a human rights compliant response to these phenomena in both Italy and Europe as a whole. In this respect, the Commissioner notes that the 20 000 arrivals from Libya to Italy mentioned above stand, at least for the moment, in stark contrast with the many times greater forecasts concerning the potential number of arrivals from Libya which had been made publicly in Italy at the beginning of the conflict. It is also sobering to note that these arrivals account for around 2% of the persons having left Libya as a result of the conflict. Indeed, 98% of the approximately 1 100 000 people who have left Libya so far have done so by crossing land borders into Tunisia, Egypt, Niger, Chad and Algeria.

a. Rescue operations and interceptions at sea

48. The Italian authorities, and particularly the coast guard and customs police, have been instrumental in saving the lives of many migrants who have attempted to reach European shores from Northern Africa on unseaworthy boats. Rescue operations have obviously intensified in recent months, reflecting the increase in departures of migrant boats from Tunisia and Libya since January 2011.

49. Over the same time period, however, at least as many as 1 500 persons have lost their lives while trying to cross the Mediterranean to seek a safe haven. The Commissioner notes that responsibilities remain to be ascertained in certain cases. For instance, in an episode which is currently being investigated by the Parliamentary Assembly of the Council of Europe, and which resulted in the death at sea of 61 persons, including over 20 women and children, a boat carrying 72 migrants was left adrift for two weeks in spite of its presence having reportedly been signalled to the authorities of Italy, Malta and NATO, and the boat itself having been spotted by a helicopter and a passing vessel of unidentified nationalities. The Commissioner notes that in some cases, lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue may delay operations or otherwise put the lives of migrants in distress at risk. More generally, the Commissioner finds it difficult to accept that people in distress at sea can face death in one of the busiest areas of the Mediterranean, especially now with the large numbers of military and other vessels in the area.

50. The Commissioner also notes that since May 2009, and up to the beginning of the armed conflict in Libya in February 2011, the Italian authorities have carried out operations jointly with Libya in the central Mediterranean, aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called respingimenti, or push-backs). The practice has been repeatedly criticised for violating international human rights law, as migrants, including asylum seekers, are returned to Libya where they risk being ill-treated or in turn deported to other countries where they are exposed to such a risk, without being given an opportunity to seek and enjoy international protection through an individual assessment of their case. Indeed, in a case that is currently pending before the Grand Chamber of the European Court of Human Rights, a group of Somali and Eritrean migrants who were travelling by boat from Libya have argued that the decision of the Italian authorities to intercept their vessels on the high seas and send them straight back to Libya exposed them to a risk of ill-treatment there, as well as to a serious threat of being sent back to their countries of origin, where they might also face ill-treatment.24

51. The Commissioner notes that the beginning of these operations started shortly after the conclusion of agreements between Italy and Libya in 2008 and 2009.25 In his 2009 report on Italy, the Commissioner expressed “his disapproval of bilateral or multilateral agreements for the forced return of irregular migrants to countries with long-standing, proven records of torture”,26 a concern which was shared by the Parliamentary Assembly in June 2010.27 In February 2011, following the beginning of the armed conflict in Libya, Italy announced that it had suspended the implementation of its agreements with Libya. However, the Commissioner also notes that on 17 June 2011, Italy signed with the Libyan National Transitional Council a Memorandum of Understanding, which refers to the commitments contained in the agreements previously signed with Libya and provides for mutual assistance and co-operation in combating irregular immigration, “including the repatriation of immigrants in an irregular situation.”28

Conclusions and recommendations

52. The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats in the Mediterranean, which have saved thousands of lives over the past months and years. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, a task which is all the more indispensable in the current context of forced migration from Libya.

53. At the same time, the Commissioner calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations. The attention of the Italian authorities is drawn to the PACE resolution 1821 (2011)29 adopted in June 2011, which calls on member states to “fulfil without exception and without delay their obligation to save people in distress at sea.”30 In this connection, the Commissioner recalls that on 8 April, just two days after a boat from Libya carrying more than 220 migrants capsized near the Italian island of Lampedusa causing the death by drowning of more than 200 persons, UNHCR recommended that “[a]ny overcrowded boat leaving Libya these days should be considered to be in distress.” On the same occasion UNHCR also underlined that “[a] long-standing tradition of saving lives at sea may be at risk if it becomes an issue of contention between States as to who rescues whom.”

54. The Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement. The Commissioner wishes to highlight that when a state exercises effective control, authority or power over third-country nationals rescued or intercepted at sea (including the state’s own territorial waters, those of another state and international waters) its obligations include ensuring effective access to adequate asylum determination procedures and not returning individuals to countries where they would face a real risk of persecution or treatment contrary notably to Articles 2 (right to life) and 3 (prohibition of torture) of the ECHR.

55. In this connection, the Commissioner draws once more the attention of the Italian authorities to the PACE resolution 1821 (2011) which calls on member states to: “refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgements of the European Court of Human Rights”; and to “suspend any bilateral agreements they may have concluded with third states if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement […].”31

56. In accordance with UNHCR’s recommendations on protection with regard to people fleeing from Libya, the Commissioner strongly encourages the Italian authorities to continue to keep the country’s borders open for people who are forced to flee from Libya and are in need of international protection.32

[***]”

Click here for Report.

Click here for CoE Press Statement.

Click here for CoE Human Rights website regarding human rights of immigrants, refugees, and asylum seekers.

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3rd Anniversary of Italy-Libya Treaty on Friendship, Partnership and Co-operation

This past Tuesday, 30 August, marked the third anniversary of the signing of the Treaty on Friendship, Partnership and Co-operation by Italy and Libya.  The Agreement was signed in Benghazi in 2008 by Prime Minister Silvio Berlusconi and then Libyan leader Gaddafi.  The Agreement included a provision calling for the “intensification of the ongoing cooperation in the context of the fight against terrorism, organized crime, drug trafficking and clandestine migration.” (See p. 2 of UNHCR’s Third Party submission to the European Court of Human Rights in the case of Hirsi and Others v. Italy (Application no. 27765/09) for more information regarding the history of the Agreement.)  The Agreement, which included a provision for the payment by Italy to Libya of $5 billion in compensation for colonial occupation, paved the way for Libya’s implementation of the  provisions of an earlier agreement signed in December 2007 which provided the basis for joint Italy-Libya maritime patrols and Italy’s so-called “push-back” practice.  The first push-back operations began in May 2009.  As I’ve noted in previous posts, the Libyan NTC has given Italy assurances that a new Libyan government will honour the terms of the Friendship Agreement.

Click here (IT), here (EN), and here (EN) for articles from 2008.

Click here for UNHCR’s Third Party Submission to the ECtHR in the Hirsi case.

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Italy Fears New Surge in People Fleeing Post-Qadhafi Libya

As I noted earlier this week, Italy hopes to re-implement the migration control provisions of the Italy-Libya Friendship Agreement with a new Libyan government as soon as possible.  This desire is motivated by fears of a new surge in refugees fleeing Libya.  In one of the articles to which I previously linked, Italian Undersecretary for Foreign Affairs Alfredo Mantica also said Italy fears that instability in a post-Qadhafi Libya will lead to increased numbers of Libyans and sub-Saharan Africans seeking to escape to Europe.  Father Moses Zerai, an Eritrean priest who heads the Agenzia Habeshia per la Cooperazione allo Sviluppo, also said in the article that he believes over the short to medium term many sub-Saharan Africans in Libya will likely try to flee to Italy and Europe.  Moses Zerai said that he is in contact with migrants in Tripoli who are fearful of treatment at the hands of the rebels.

Images such as the one below demonstrate vividly why many sub-Saharan Africans in Libya may be fearful of reprisal or harm if they are suspected by rebel forces of being a Qadhafi mercenary.  This picture (Florent Marcie/AFP/Getty Images) was taken on 19 August in Zawiya and reportedly shows “suspected members of the Libyan regime forces [being] rounded up in a pick-up truck by Libyan rebel fighters in Zawiya.”

Click here for article.  (IT)

Click here for my previous post on re-implementing the migration control agreement.

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Italy Hopes to Revive Libyan Friendship Treaty, Including Migration Control Provisions

Italian officials, including Defence Minister Ignazio La Russa, said yesterday that the Italian-Libyan friendship treaty signed in 2008 by Prime Minister Berlusconi and Gaddafi should be revived once a new government takes power in Libya.  The head of the Libyan National Transitional Council, Mustafa Abdel Jalil, has previously said that the provisions of the treaty, including the migration control provisions, would be respected by the new Libyan government.  Italian Under Secretary for Foreign Affairs, Alfredo Mantica, is quoted by ANSA as saying that “the first duty of Italy will be to update the part [of the treaty] relating to migration” as soon as the situation in Libya has stabilized. [“Mantica ha spiegato che ‘il primo dovere dell'Italia sarà quello di aggiornare la parte che riguarda i flussi migratori’ del Trattato di amicizia italo-libico, non appena la situazione in Libia si sarà stabilizzata.”]

Click here and here for articles. (IT)

Click here and here for previous posts about Libyan NTC’s statements regarding the treaty.

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Hirsi v Italy: UNHCR’s Oral Intervention Before ECtHR Grand Chamber

UNHCR released the text of its oral submission as a third party intervener before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09.  The oral submission was made by Madeline Garlick, Head of Policy and Legal Support Unit, Bureau for Europe.

Note UNHCR’s disagreement with the Government of Italy’s position on the extraterritorial applicability of Article 4 of Protocol 4’s prohibition of collective expulsion:  “Although it is of primary importance to this case, UNHCR today will not address Article 4 of Protocol 4 of the European Convention on Human Rights, since the Office of the United Nations High Commissioner for Human Rights covers it comprehensively in its written submission. UNHCR supports and shares the views expressed in that submission, holding that the prohibition of collective expulsion is at stake in this case including in relation to extraterritorial acts.”

Click here for the full text of UNHCR’s oral submission.

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Hirsi v Italy: Summary of Oral Submission made by Govt. of Italy to Grand Chamber ECtHR

I have watched a portion of the web cast of yesterday’s oral submissions before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09.  Here is a summary of the oral submissions made on behalf of the Respondent Government of Italy by Mrs. Silvia Coppari, Co-Agent, and Mr. Giuseppe Albenzio, Adviser.  NB while I think my notes are accurate, do not rely on them for exact quotes of any of the oral remarks.

Oral Submission by Mrs. Silvia Coppari, Co-Agent, Government of Italy

Introductory Remarks Critical of Applicants:

Coppari began her oral submission by saying that the Italian government did not intend to enter into the controversy raised by Applicants in their written submissions where the Italian government and its representatives were insulted and provoked by the Applicants’ statements that the arguments relied upon by the Italian government were purely formal or quite absurd and tendentious.  Coppari described the Applicants’ written submission as a political and ideological manifesto against the government and its policy.

Questioning Why Italy Was Singled Out:

Coppari said that the issues raised by the Applicants related to European public policy in general and therefore all EU Member States should be involved in the case.  Italy’s policies and actions were adopted and carried out in a manner consistent with the guidelines, objectives, and guidance set by the EU to curb illegal migration.

Reminding Court that Case is Limited to the Events of 6 May 2009 and is Not a Challenge to Italy’s Migration Policies:

Coppari emphasised that the Application was lodged only with respect to the events that took place on 6 May 2009 when the push-back operation involving the Applicants occurred and that the Application does not deal with the public policy or practices of the Government.

Admissibility Challenge No. 1:

Coppari recalled that the allegations lacked specific supporting evidence and noted that the Applicants themselves have not testified in any domestic proceedings and have not otherwise personally participated in the case. Coppari expressed misgivings about the validity and authenticity of the authorisations given to the Applicants’ legal representatives.  Coppari said there was no certainty as to the identity of the Applicants and therefore no likelihood of individually assigning a particular alleged offence to them or a possible violation of their rights under Art. 34 of the Convention.

Admissibility Challenge No. 2:

Coppari made a second inadmissibility objection due to the failure of the Applicants to lodge an appeal with the Italian courts in line with Art. 13.  The pursuit of such domestic remedies would have given the Italian authorities the opportunity to check whether those who were rescuing illegal migrants on the high seas were possibly liable for any rights violations.  Coppari emphasised that at present there are criminal proceedings underway at the domestic level in cases very similar to the instant case and that these cases will determine whether there was compliance with national and international standards and whether there was effective access to procedures for international protection for unidentified migrants intercepted at high seas and transported to Italian vessels. The existence of these ongoing domestic cases proves that domestic remedies do exist which were not pursued by the Applicants.

The Events of 6 May 2009:

Coppari said that the operations carried out on 6 May 2009 to intercept 3 makeshift migrant vessels were done to protect the migrants from danger and to control the flows of illegal migration towards Europe.  The migrant vessels were in distress on high seas in the Maltese SAR zone.  The migrants were rescued and returned to Libya on board Italian military vessels.  There is no evidence suggesting that requests for international protection were made to Italian authorities.  The migrants were in fact welcomed upon arrival in Libya.  The returns did not breach any basic rights of the Applicants.

Prohibition Against Collective Expulsions Does Not Apply Extraterritorially:

Coppari said that prohibition of collective expulsions provided by Art. 4 of Protocol 4 is not applicable to the case.  Coppari said that the use of the word “expulsion” is an obstacle to its application in the case of extraterritorial exercise of state jurisdiction.  Not only is it an apparent obstacle, it is in fact a logical obstacle which cannot be circumvented because an “expulsion” can only happen to people who are already on national territory or who have illegally crossed the border.  The transfer to a vessel on the high seas cannot be equated with entry upon national territory or permanent residence on national territory.

Giuseppe Albenzio, Adviser, Government of Italy

Introductory Remarks – Italy’s Policies Consistent with EU Principles:

Italy has acted in respect of principles handed down by the EU. The European pact on immigration and asylum provides for limits on migratory flows, the need to control illegal immigration by ensuring that illegal immigrants are returned to the country of origin or to a country of transit, the need to make border controls more effective, and to make partnerships with countries of origin or transit.

At the Time of the Events in Question, Libya Was a Country with an Adequate Protection System in Place:

Italy’s bi-lateral agreements with Libya at the time they were implemented recalled the general principles of international law and of human rights and therefore in face of these principles recognised in the agreements, the misgivings regarding Libya’s non-subscription to the UN Refugee Convention should not exist and are not justified especially since Libya has signed the similar African Union Convention for refugees.  It should also be underlined that at the time of the events in question, the UNHCR and IOM were both active in Tripoli and the operations that were carried out in the months after the bilateral treaty was implemented should be seen in this context.

After the first phase of the implementation of the bi-lateral treaty when Italian authorities took note of the fact that Libyan authorities had ordered the UNHCR office in Tripoli to close, which in turn made it difficult to guarantee the protection of fundamental rights on its territory, Italy’s methods for rescuing migrants on the high seas were modified and people who were on vessels coming from Libya would be accompanied to Italian soil after rescue.

The web cast of the hearing is available here.  (I was able to view this with IE but not with Firefox.)

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22 June, 09.15 CEST, ECtHR Grand Chamber Hearing in Hirsi and Others v. Italy

[Update:  A web cast of the hearing is available here (I was able to view this with IE but not with Firefox.)]

The case of Hirsi and others v Italy, Requête no 27765/09, will be heard by the Grand Chamber of the European Court of Human Rights today, 22 June, 09.15 am CEST.

Given the events in Libya and the resulting halt to the Italian push-back practice, there may have been a moment some weeks ago when the question of mootness of the case might have been considered, but given the recently executed Memorandum of Understanding between Italy and the Libyan National Transitional Council and the public promises made by the leadership of the NTC to respect and implement the migration and other agreements made by the Gaddafi government, it would appear Italy hopes to revive the push-back practice at some point in the future.

From the Registrar’s Press Release:

“The case concerns a group of Somalian and Eritrean migrants travelling from Libya who were intercepted at sea by the Italian authorities and sent back to Libya. The applicants are eleven Somalian and thirteen Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. Among them were women who were pregnant at the time and children. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), in waters under Maltese jurisdiction for search and rescue purposes, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli. The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities. At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration. The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the Convention (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to intercept the vessels on the high seas and send the applicants straight back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment. They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens). Lastly, relying on Article 13 of the Convention (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Articles 3 of the Convention and 4 of Protocol No. 4. The application was lodged with the European Court of Human Rights on 26 May 2009. The Chamber to which the case was assigned relinquished jurisdiction in favour of the Grand Chamber on 15 February 2011.”

From my previous post of 16 March:

The case of Hirsi and others v Italy, Requête no 27765/09, has been scheduled for a hearing on 22 June 2011, 9.15 am, before the Grand Chamber of the European Court of Human Rights.

Proceedings before the Grand Chamber were initiated on 1 March 2011 when the Second Section of the Court relinquished jurisdiction.  On 17 November 2009 the Second Section of the Court communicated the case.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.

The Applicants allege violations of numerous provisions of the European Convention on Human Rights:

Protocol 4, Art. 4 Prohibition of collective expulsion of aliens;

Art. 3 Torture;

Art. 1 (1) General undertaking/HPC;

Art. 13 Effective remedy/national authority; and

Art. 3 Inhuman or degrading treatment.

The Statement of facts, complaints and questions (EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS) issued by the Second Section to the parties is available only in French:

GRIEFS

Invoquant l’article 3 de la Convention, lu en conjonction avec l’article 1 de la Convention, les requérants se plaignent de ce que les modalités de leur renvoi en Libye, ainsi que leur séjour dans ce pays ou leur rapatriement dans leurs pays respectifs les soumettrait au risque de subir des tortures ou des traitements inhumains et dégradants.

Invoquant l’article 4 du Protocole no 4, lu en conjonction avec l’article 1 de la Convention, ils affirment avoir fait l’objet d’une expulsion collective atypique et dépourvue de toute base légale.

Invoquant l’article 13, les requérants dénoncent l’impossibilité de contester devant les autorités italiennes leur renvoi en Libye et le risque de rapatriement dans leurs pays d’origine.

QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS

QUESTIONS

1.  Les faits dont les requérants se plaignent en l’espèce relèvent-ils de la juridiction de l’Italie ?

2.  La décision des autorités italiennes d’intercepter en haute mer les embarcations et de renvoyer immédiatement les requérants, compte tenu notamment des informations provenant de sources internationales et concernant les conditions des migrants clandestins en Libye, a-t-elle exposé les requérants au risque d’être soumis à des traitements contraires à l’article 3 de la Convention dans ce pays ?

3.  Compte tenu des allégations des requérants (voir formulaire de requête annexé), y a-t-il des motifs sérieux de craindre que le rapatriement dans leurs pays d’origine, soit la Somalie et l’Érythrée, les exposerait à des traitements contraires à l’article 3 ?

4.  Le renvoi des requérants en Libye de la part des autorités italiennes s’analyse-t-il en une expulsion contraire à l’article 4 du Protocole no 4 ?

5.  Les intéressés ont-ils eu accès à un recours effectif devant une instance nationale garanti par l’article 13 de la Convention pour faire valoir leurs droits garantis par les articles 3 et 4 du Protocole no 4 ?

DEMANDES D’INFORMATIONS

Le gouvernement défendeur est également invité à fournir à la Cour toute information disponible concernant :

- Le nombre de migrants irréguliers arrivés mensuellement sur les côtes italiennes, et en particulier à Lampedusa, au cours des dernières années ;

- L’entité et l’origine du phénomène migratoire en Libye ; la législation en la matière en vigueur dans ce pays ; le traitement réservé par les autorités libyennes aux migrants irréguliers arrivés en Libye directement ou suite au renvoi depuis l’Italie.

Le Gouvernement est également invité à produire à la Cour les textes des accords signés par les gouvernement italien et le gouvernement libyen les 27 décembre 2007 et 4 février 2009.

Il est enfin invité à expliquer à la Cour le rapport existant entre les opérations prévues par les accords bilatéraux avec la Libye et l’activité de l’ « Agence européenne pour la gestion de la coopération opérationnelle aux frontières extérieures des États membres de l’Union européenne (Frontex) ».

Click here (FR) for EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS.

Click here, here, and here for my previous posts on the case.

Also, click here for a post by Costanza Hermanin, an Open Society Justice Initiative consultant.

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Frattini Says He Expects Libyan Rebels Will Soon Take Steps to Stop Migrant Departures

Italian Foreign Minister Franco Frattini said during a TV interview earlier today that “the [Libyan] rebels have said they will keep the international commitments of the Libyan state” relating to illegal immigration (”I ribelli hanno detto che manterranno gli impegni internazionali dello stato libico…”) and that he expects an “important political signal [from the rebels] in the coming days.”  (“Mi aspetto da parte loro un segnale politico importante gia’ nei prossimi giorni”.)

Libyan rebel leader, Mustafa Abdel Jalil, has previously said that a post-Gaddafi Libyan Government would respect “all agreements with Italy by the [Gaddafi] regime, including those involving combating illegal migration and oil contracts with Eni.” Specifically, Jalil has said that the rebels would “respect the Italian-Libyan Treaty signed by Prime Minister Silvio Berlusconi and Colonel Muammar Gaddafi. … Any treaty or agreement [which was done] we respect it” and “we will try to implement the treaties.”

Click here, here, or here for article. (IT)

Click here for previous post on Jalil’s statement.

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