|Resting on the deck of an Armed Forces of Malta (AFM) patrol boat in July 2013, after being rescued from a vessel in distress while trying to reach European soil from Libya.|
|But if the tactic to seal off Libya's borders makes sense from an EU perspective, in reality it is nothing less than a travesty of the migrants' fundamental rights.|
Valletta, 10 April 2015 – On 9 July 2013, the media learned that the government was planning to send a group of Somali asylum seekers back to Libya on an unscheduled Air Malta flight.
The asylum seekers had just arrived to Malta by boat, a handful among the thousands who undertake highly risky journeys across the Mediterranean Sea to seek protection in Europe – and who have provoked the so-called "irregular migration crisis" by doing so.
They were saved at the eleventh hour when the European Court of Human Rights (ECHR) issued an interim ruling against their return, in response to an urgent application filed earlier in the day by a coalition of local NGOs, among them the Jesuit Refugee Service (JRS).
The government later insisted that no final decision on returning the asylum seekers to Libya had actually been taken, saying the option was one of several different ones that were – and still are – on the table.
The government's regrettable decision even just to consider a push-back proved controversial, drawing condemnation at home and abroad. The push-back would have been clearly illegal, a complete negation of the spirit and letter of Malta's international obligations. If returned to Libya, the Somalis would have faced a real risk of inhuman, cruel and degrading treatment and would have been unable to exercise their right to apply for asylum.Can Libya be part of the solution? The Maltese government has since insisted, on more than one occasion, that Libya should be seen not as part of the problem of irregular migration but as an essential part of the solution.
In theory, this approach might make sense for Malta, as it does for Italy. Both countries are struggling to cope with waves of African immigrants who set out from Libya and wash up on their shores in overcrowded vessels to apply for asylum. The UN refugee agency, UNHCR, says more than 23,000 people, mostly Africans, tried leaving Libya by boat in 2013, triple the number in 2012.
The Libyan coastguard says it stopped 2,200 migrants on the sea in just two months of 2013. Concerned about the sheer numbers of migrants and frequent horrific accidents at sea, the European Union (EU) is helping to train Libyan border patrol guards and to set up systems to control Libya's 2,000-km long shore.
But if the tactic to seal off Libya's borders makes sense from an EU perspective, in reality it is nothing less than a travesty of the migrants' fundamental rights. Even if enthusiasm to control Libya's borders were matched by equal eagerness to help the country build and apply decent migration and asylum systems, hitherto non-existent, the truth is that Libya today is nowhere near ready to guarantee anybody's human rights, let alone those of foreigners.Libya remains highly unstable. More than two years after the overthrow of the dictator Muammar Gaddafi, Libya remains prey to violence and political instability. One key reason is that the government has failed to disarm an array of well-armed militias, largely set up during or after the uprising against Gaddafi. The country is awash with weapons, and targeted assassinations, kidnappings and tribal clashes are commonplace.
The militias have been quick to step into the security void left by weak state institutions, military and police. They control swathes of territory and some brigades have taken it on themselves to guarantee the country's security, resorting to grossly illegal practices of arbitrary arrest, unlimited detention and torture to do so. While some militia groups are sanctioned by the state, others operate entirely above the law, assuming "the roles of police, prosecutors, judges and jailers", in the words of the International Crisis Group.Migrants and asylum seekers at high risk. In such a lawless scenario, migrants are especially vulnerable, particularly sub-Saharan black Africans. Those who left their own countries because of war and persecution have no realistic chances of applying for asylum in Libya. They suffer widespread racist abuse; they are criminalized because they enter the country without the right documents; they are systematically hunted down and detained in appalling conditions; and exploited as forced labour.
Some militias have made it their "mission" to tackle migration, drawing inspiration from xenophobia, misguided fears of disease, and security concerns. They detain migrants in camps that were used for the same purpose in Gaddafi 's time and have opened new makeshift ones too.
The reality on the ground leaves no room for doubt: for the foreseeable future, Malta cannot return migrants to Libya – to do so would be tantamount to dispatching them to hell.
Certainly Libya's allies, Malta included, should help the fledgling government and civil society to strengthen law-abiding state security forces and to work towards the creation and implementation of a justice system and fair policies that truly protect human rights.
But while all work together to attain this ideal situation, an ideal is all it will remain for a long time to come. Getting Libya to sign up to international agreements, a laudable step in itself, will not be nearly enough to guarantee urgently needed changes on the ground. Until radical and measurable improvements take place in the security and governance of Libya, it will be a very dangerous place for migrants, asylum seekers and refugees, in particular those of sub-Saharan African origin.
We use the words "migrants" or "asylum seekers" to describe those smuggled clandestinely by boat from Libya to Malta. We wish to emphasise that however people are labelled, migrants, asylum seekers, refugees... they should never be returned to a country where they face a real risk of inhuman and degrading treatment and punishment, and where their fundamental rights would be ignored. Most migrants are in fact asylum seekers; at the first opportunity, they file a claim for international protection. In 2012, 1890 migrants arrived by boat to Malta. Only 52 did not apply for asylum. In that year, 78% of all asylum seekers were granted some form of protection and another 9% provisional status. Somalis accounted for 86% of those granted international protection, followed by Eritreans.
The full report is available here.