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X. Role of the European Union and Italy

The focus of this chapter is on the European – and specifically the Italian – dimension of migration and asylum in Libya. It looks at how the European Union has engaged Libya as a partner in the E.U.’s “externalization” agenda, through which the E.U. is seeking to prevent many asylum seekers from reaching European soil, or immediately returning those who succeed to come. It also examines how Italy is running ahead of the European Union in its bilateral cooperation with Libya, working to bolster Libya’s capabilities to intercept people who attempt to reach Italian shores.

The Italian government implements a mandatory detention policy for undocumented migrants and asylum seekers, and has engaged in collective expulsions back to Libya, in violation of Italy’s human rights and asylum obligations. Abuses at Italy’s detention facility on the island of Lampedusa include sub-standard conditions and episodes of mass expulsion to Libya without an asylum review.

The E.U.’s “Externalization” Agenda

Since the mid-1980s, some policy makers in Europe have pursued the idea of “externalizing” the hosting of asylum seekers who attempt to reach or already are on the territory of the European Union.²⁷³ The externalization idea has three basic versions which overlap:

1. “Safe third country” Asylum seekers are readmitted to supposedly safe non-E.U. countries through which they pass – increasingly with little concern as to whether they enjoy effective protection there. Those returned to allegedly safe countries are often subject to further deportations to countries with less capacity to adjudicate their claims fairly or meet basic needs. A number of E.U. member states have implemented the “safe third country” concept for some time, based on a web of bilateral and multilateral readmission agreements, most of which contain few safeguards for asylum seekers.²⁷⁴

2. “Capacity building” Closely linked to the “safe third country” concept, “capacity building” utilizes development aid to create sufficient protection conditions in a third country so that E.U. states may conclude readmission agreements with that government. Asylum seekers would be returned to countries that meet their minimal protection needs. This version contains a positive element of preventive capacity building; fewer migrants and refugees would feel the need to take dangerous smuggling routes, and would better be able to find protection in the region. The bulk of the capacity-building assistance from E.U. countries to refugee host and transit countries, however, has gone to strengthening border controls and immigration enforcement.²⁷⁵

3. “Outsourcing” Under this version, all or most asylum seekers who arrive or apply in E.U. states would be sent to a country outside the E.U. for processing by E.U.-appointed officials. Asylum seekers would go to transit processing centers in countries outside the E.U. regardless of whether they passed through those countries. E.U. member states would not have binding legal obligations regarding refugee protection, but could pick and choose which and how many refugees to accept. Asylum seekers would almost certainly have substantially reduced procedural rights to appeal and to legal counsel. While successful applicants would then be resettled into an E.U. member state on a quota basis, it is less clear how long they might have to wait for a resettlement offer, how they would be treated if found to be refugees but no resettlement offers were available, or what would happen to claimants who do not succeed.

In March 2003 the United Kingdom proposed the creation of “transit processing centres” in various states surrounding the E.U., to which E.U. states might return asylum seekers for extraterritorial determination of their claims.²⁷⁶ This approach to “strengthen the E.U.’s external frontiers” would involve the transfer of asylum seekers regardless of their path of travel, as well as the readmission of those who are proven to have transited the buffer state in question. Denmark and the Netherlands welcomed the proposal, though governments such as France, Germany and Sweden showed less support. The proposal accepted diminished procedural safeguards (limited appeal rights, no access to legal counsel, etc.) and the necessity of detaining those returned. The U.K. proposal did acknowledge that asylum seekers could not be returned to the “transit processing centres” or “regional protection areas” if they would be exposed to cruel and inhuman treatment.

In summer 2004, the German and Italian Interior Ministers proposed that the E.U. set up refugee processing centers in North Africa. At a meeting of E.U. Justice and Home Affairs ministers in Holland on September 30-October 1, 2004, the proposal got a mixed response, with France, Sweden and Belgium rejecting the idea.²⁷⁷ At a meeting of Justice and Home Affairs ministers in the U.K on September 9, 2005, German Minister Otto Schily again presented the idea of screening asylum seekers at centers in North Africa and the ministers backed a European Commission plan with four main points: expedite the expulsions of illegal immigrants, better integrate legal migrants, improve asylum capacities of non-E.U. states and help developing nations manage their migratory flows.²⁷⁸

Transit countries like Libya rejected the idea of taking Europe’s asylum seekers without a substantial pay-off in return. This resistance, coupled with legal and moral objections from refugee advocates, the media and other E.U. governments, scrapped the idea.

Libya as Partner in E.U. “Externalized” Asylum Processing

At present, the E.U. relies on versions 1 and 2 of the externalization model – focusing on intercepting migrants before they reach E.U. states and immediately returning them if they do.²⁷⁹ In this regard, the European Union has been cultivating a partnership with the Libyan government.

This cooperation is taking place during a steady thaw in Libyan-E.U. relations over the past several years. In April 1999, the third Euro-Mediterranean Conference of Foreign Ministers decided that Libya could become a partner of the E.U.’s Barcelona Process²⁸⁰ so long as it accepted the full Barcelona acquis.²⁸¹ On October 11, 2004 the E.U. lifted economic sanctions, including an arms embargo, imposed on Libya since 1992.²⁸²

That same day, the Council of the European Union agreed to embark on a policy of engagement with Libya on migration matters, and decided to send a technical mission there “to examine arrangements for combating illegal migration.”²⁸³ The E.U. subsequently sent a mission to Libya in November-December 2004 “to examine arrangements for combating illegal migration,” and that mission’s findings are cited throughout this report.

Also in November 2004, the European Council adopted the Hague Programme, which called for a comprehensive approach on asylum and migration, including a request for a European Commission study on “the merits, appropriateness and feasibility of joint processing of asylum applications outside EU territory.” It also proposed establishing a European Neighborhood and Partnership instrument for “intensifying cooperation and dialogue on asylum and migration with neighboring countries amongst others around the Mediterranean basin.”²⁸⁴

The E.U.’s rhetoric on the importance of human rights standards as a condition for migration cooperation is not supported by the cooperation that is taking place. At a meeting on June 2-3, 2005, the E.U. Justice and Home Affairs Council endorsed a Council Conclusion on cooperation with Libya on migration issues, saying that any cooperation with Libya on migration will be “limited in scope and take place on a technical ad hoc basis” as long as Libya has not fully integrated into the Barcelona Process. At the same time, it indicated a willingness to move ahead on a series of ad hoc measures, even though Libya is far from meeting the standards of the Barcelona acquis.²⁸⁵ These measures included reinforcing “systematic operational co-operation between the respective national services responsible for sea borders,” and developing common Mediterranean Sea operations involving the temporary deployment of E.U. Member States’ vessels and aircraft.²⁸⁶ The ad hoc measures also included sending E.U. immigration liaison officers (ILOs) to Libyan seaports and Tripoli airport for interception purposes;²⁸⁷ and training Libyan officials on immigration controls, as well as on asylum issues, and on “best practices” for removal of illegal immigrants. Libyan officials welcomed international assistance with control of their land (entry) points,²⁸⁸ but the E.U.’s preference was to provide assistance on coastal (exit) control.

The Council Conclusion also calls for launching exploratory discussions between the E.U. and Libya to develop “concrete cooperation” to “tackle illegal migration in areas such as training, reinforcement of institution building, asylum issues, and public awareness of the dangers of illegal migration.”²⁸⁹ Included on the list of suggestions for these discussions in the short term is how to assist in the repatriation of failed asylum seekers “after an independent asylum procedure in accordance with international standards,” and intensified cooperation and capacity building for “migration management and protection of refugees” in cooperation with UNHCR.²⁹⁰

Spain, Italy, and Malta added a note to the list of medium-term discussion topics, expressing their wish to include “formalized cooperation in the field of return of illegal immigrants to Libya” (while respecting human rights and “ensuring the sustainability of returns”), as well as technical and financial contributions for joint operational projects between Libya and its neighboring countries, such as Egypt and Niger.²⁹¹

The addition by these three states with Mediterranean coastlines reveals their desire for faster and more enforcement-oriented cooperation with Maghreb states. An indication that sub-regional groupings may move faster than the E.U. is the development of the “5+5” Migration Dialogue – a group of five European states (France, Italy, Malta, Portugal and Spain) and five African-Maghreb states (Algeria, Libya, Mauritania, Morocco and Tunisia) meeting regularly since 2001 to discuss strengthened management of migration issues. The conferences, organized with the assistance of the IOM, have focused predominantly on control of irregular migration.

Absence of Refugee Protection Preconditions

Despite rhetoric about making the “extent and development” of cooperation on migration matters contingent on Libya’s commitment to fundamental refugee and human rights, the E.U. is moving forward with Libya, particularly on migration enforcement. The E.U. did not set as a precondition for cooperation either that Libya sign and implement the Refugee Convention, that it cooperate with UNHCR, or that it implement the Migrant Workers Convention. In the absence of a clearly agreed role for UNHCR, the E.U. states’ interest in offering training on asylum issues and “best practices” for removal of illegal immigrants to Libya does not inspire confidence. Furthermore, Italy’s own unlawful expulsions to Libya and its denial of the right to seek asylum to some who arrived in Lampedusa have gone forward despite condemnation by UNHCR, the European Parliament and the European Court of Human Rights (see below, “The Italian Dimension”).

The E.U. member states which receive most transit migrants and asylum seekers from Libya – notably Italy – are unwilling to advocate for safeguards in relation to refugee protection or the detention and expulsion of migrants in Libya. Such safeguards would impede the speedy removal of persons whom they themselves have forcibly returned to Libya, or whom Libya has intercepted with their encouragement and assistance.

There are some hopeful signs. In tandem with seeking to strengthen Libya’s border controls, the E.U. has spoken about enhancing refugee protection in Libya. The European Commission’s Technical Mission to Libya in November-December 2004, for example, was frank in acknowledging problems, including the absence in Libya of an individual status determination prior to deportation of illegal immigrants. The mission report noted that a “comprehensive long-term global approach to migration is needed, which should also include… protection of refugees.” It concluded that “a full recognition of UNHCR status by Libya would constitute a first step in this respect.”²⁹² This conclusion was partly reflected in the Justice and Home Affairs Council Conclusion of June 2005, which called on the Libyan authorities “to demonstrate a genuine commitment to fulfill their obligations under the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa which recognizes that the Geneva Convention on Refugees constitutes the basic and universal instrument relating to the status of refugees and which requires effective cooperation with UNHCR and the respect of the principle of ‘non-refoulement.’”²⁹³

Transforming Libya into a safe country of first asylum is a laudable goal in terms of enhancing refugee protection, but not as a nominal goal pursued self-interestedly by E.U. states to make Libya a less inappropriate destination for readmissions. E.U. plans for “protection in the region” not only seek to improve protection in countries of transit, but are also based on the proposition that, even before such improvements take place, “intercontinental movements are seldom necessary for protection reasons alone.”²⁹⁴

As discussed in this report, a number of Libya’s treaty obligations imply that Libya should cooperate with UNHCR. On August 9, 2005, Libya signed a Memorandum of Understanding with the IOM to establish the presence of the migration agency in Libya, and the organization opened a Tripoli office in April 2006.²⁹⁵ IOM said the agreement included provisions on “the rights of migrants, international migration law, and technical assistance and capacity building for migration management.”²⁹⁶ The Italian government has agreed to fund pilot projects for IOM in Libya.²⁹⁷ Future projects, IOM said, would include, among others, assisted voluntary return and sustainable reintegration programs for irregular migrants in Libya, information campaigns directed to potential irregular migrants, and income-generating projects for potential migrants in countries neighboring Libya.

In May 1997, IOM signed a Memorandum of Understanding with UNHCR, in which it agreed not to involve itself in measures conflicting with the humanitarian concerns of UNHCR.²⁹⁸ IOM, therefore, has a duty to identify and refer asylum seekers to UNHCR.

IOM has proposed a set of activities in Libya, called TRIM (Transit and Irregular Migration Management), which would involve projects to improve conditions at reception centers for irregular migrants, and IOM assistance in migrant returns to their countries of origin through its Assisted Voluntary Return and Reinsertion program. The international migration agency included $3.59 million in its 2005 budget appeal for TRIM projects in Libya.²⁹⁹ IOM has already been involved in training at the police academy in Tripoli on border control, document fraud, and “assisted voluntary return of irregular migrants transiting Libya en route to southern Europe.”³⁰⁰

Notwithstanding their rhetorical or real commitments to promote the role of UNHCR in Libya, it appears that both the E.U. and IOM have initiated projects that run counter to this commitment. This is partly because several E.U. member states most affected by the arrival of transit migrants and asylum seekers via Libya are not eager to impede removal to countries of origin of those unlawfully returned by Italy. This includes a reluctance to have UNHCR screen such returnees to determine whether the Italian government denied individuals their right to seek asylum in Lampedusa.

Libya’s Reservations on Cooperation with the E.U.

The Libyan government considers the resources that the E.U. asks it to devote to migration control unreasonably large; the Italian contributions offered so far represent a fraction of the total costs involved.Libyan immigration officials told Human Rights Watch in mid-2005 that the E.U. had offered only €9 million to stop illegal immigration, which they considered laughably small compared to the scale of the problem: “One or two million euros is barely enough to drill one well or build one shelter,” `Ali Mdorad scoffed.³⁰¹

Perhaps to coax more money out of the E.U., the Libyan government has focused on tackling the root causes of forced displacement and economic migration. “We want cooperation with the E.U. to help development in the countries of origin,” head of Libya’s deportation camps Hadi Khamis said.³⁰²

Consistent with this view, the General People’s Congress in 2004 called for an A.U.-E.U. summit meeting, hosted by Libya, to discuss how to give people a “settled and dignified life” in their home countries (the proposed summit has yet to take place). The Libyan government claims that it will spend U.S. $3-4 billion over ten years on development in African source countries.³⁰³The government also gives humanitarian aid: in October 2004 it sent eight truckloads of aid to the refugee camps of eastern Chad. Other food programs exist in Burkino Faso, Niger, Mali and Sudan.³⁰⁴

Regarding E.U. “offshore processing,” Shukri Ghanim answered candidly when asked by Human Rights Watch whether Libya would ever countenance such processing camps on its territory. “Why should we,” he said. “We don’t want to be the trashcan for Europe.”³⁰⁵

The Italian Dimension

Bilateral cooperation between Libya and Italy on migration and asylum is more developed than the cooperation arrangements negotiated so far between Libya and the E.U. Italy has wanted to bolster interception measures within Libya since 1999, and over the past three years this has evolved into a policy of detaining and expelling to Libya undocumented foreigners who via Libya reached Italian shores.

Italy’s cooperation with Libya stems from a general view among the public and some in government that asylum seekers are storming Italy’s shores, much as people feared an “invasion” from East Europe after 1989, and that the asylum and immigration system is overstretched. The statistics, however, show that the alleged mass influx is less than commonly feared. In 2005, Italy ranked eighth among the twenty-five E.U. member states in the number of asylum applications it received (9,500), and eighteenth when that number is per 1,000 inhabitants (0.2).³⁰⁶ The number of asylum applicants has been falling steadily since 2002, when it peaked at 16,020.

In addition, a relatively small percentage of undocumented foreigners have entered Italy illegally by sea. According to an Italian government report, the majority of undocumented foreigners in Italy entered the country legally over a land border and became undocumented after their visas expired or they overstayed their residence permits. Only 10 percent of undocumented workers entered the country illegally by sea.³⁰⁷

One key cause of Italy’s tough stance is the Dublin Convention, which since 1998 has resulted in other E.U. states returning to Italy asylum seekers who had transited through Italy.³⁰⁸ The Dublin Convention transformed Italy from a transit country to a destination country, and Italy has been trying to transform the next in line: Libya.

On December 13, 2000 Libya and Italy reached a general agreement to combat terrorism, organized crime, drug trafficking and illegal immigration.³⁰⁹ In February 2003 Italy established a permanent liaison with Libya on organized crime and irregular migration. The Italian Minister of Interior told the Italian parliament in June that “after long and complex negotiations, we have reached agreement with Libya on concrete initiatives for joint control of land borders, for counteractions at sea, and for the development of a common investigative activity on criminal organizations involved in trafficking of illegal immigrants.”³¹⁰

In 2003 alone, the Italian government spent more than 5.5 million euros on cooperation with Libya on immigration matters.³¹¹ Italy subsequently provided training and equipment to stem illegal immigration and financed the construction of a reception center for undocumented migrants in Libya.³¹² According to the European Commission, the camp, under construction since November 2004, will be “in line with European criteria” though which criteria remains unclear. Italy is planning to finance two more camps in the south, in Kufra and Sebha.³¹³

In August 2004, then-Italian Prime Minister Silvio Berlusconi visited Tripoli and had a well publicized five-hour meeting with al-Qadhafi,³¹⁴ Neither side emphasized immigration as the subject of the meeting, but Italy agreed to provide training, technology and equipment to help Libya curb irregular immigration (Interior Minister Pisanu had visited Libya the previous month). Once again, the deal ran ahead of any E.U. agreement that might have established preconditions to ensure proper treatment of those in need of international protection.

The details of the August 2004 bilateral agreement remain unknown. Italy has refused to make it public despite public requests from the European Parliament, the U.N. Human Rights Committee and non-governmental organizations, including Human Rights Watch. According to the European Parliament, the secret agreement is “thought to give the Libyan authorities the task of supervising migration and to commit them to readmitting people returned by Italy.”³¹⁵

Two months after the agreement, the E.U. agreed to lift its eighteen-year arms embargo on Libya because of the country’s willingness to abandon its weapons of mass destruction program. Italy in particular had lobbied hard for the E.U. to lift the ban so that Libya could import equipment to better control its borders and limit the migration flow.³¹⁶

Since 2003, Italy has been funding charter flights to return undocumented immigrants in Libya back to their countries of origin. The report of the 2004 European Commission technical mission to Libya includes an annex with forty-seven charter flights that Italy financed to return 5,688 migrants to various countries, including Bangladesh, Egypt, Eritrea, Ghana, Mali, Niger, Nigeria, Pakistan, Sudan, and Syria. The report provided no figure but said the Italian charter flight program in Libya “implies a substantial economic contribution.”³¹⁷

On February 6, 2005, the Italian Minister of the Interior announced “a verbal agreement” with Libya to control “clandestine immigration.³¹⁸ Media reports, citing unnamed sources at the Libyan Embassy in Rome, stated that the Italian Interior Ministry would provide €15 million over three years to local Libyan police forces for equipment to combat illegal immigration.³¹⁹ A January 17, 2006 press release by the Italian Ministry of the Interior, concerning a meeting between al-Qadhafi and Minister Pisanu, announced that the two governments were discussing “more concrete plans” for cooperation to stem irregular migration to Italy. It also said that in just over one year, Italian-Libyan cooperation had prevented 40,000 undocumented people from leaving Libya.³²⁰

Detention in Italy

Until 1998, Italian authorities gave those without authorization to stay in the country an order to leave within fifteen days. Since then, the government has implemented a mandatory detention policy for all those who attempt to enter or do enter Italian territory without authorization. The government has introduced facilities called Temporary Stay Centers (Centro di Permanenza Temporanea), or “CPTs”. Today the CPTs hold undocumented foreigners awaiting expulsion for up to sixty days. Immediately upon entry, new arrivals are housed in Primary Assistance Centers (Centro di Prima Accoglienza), or “CPAs.”

In addition, since 2005 under the “Bossi-Fini regulatons,” the government holds asylum seekers in Identification Centers (Centro di Identificazione), known as “CDIs,” for up to twenty days while their asylum claims are examined. The government is also remodeling some CPAs as CDIs.³²¹All are really detention centers, as detainees are not free to leave. A Temporary Stay and Assistance Center (Centro de Permanenza Temporanea e Assistenza), or “CPTA,” such as the one on Lampedusa island, is a center combining a CPT and a CPA. The Lampedusa CPTA, built in 1998, is described by the Italian government as having the main function of providing “initial assistance” and serving as a “clearing station.”³²²

The Lampedusa CPTA, located near the airport on a small island with 5,500 inhabitants known mostly for tourism, consists of barracks on a dirt plot near the port surrounded by barbed wire. Capacity is 190 detainees but the number of people at the center has frequently been much higher. When many people arrive at once, a boat transfers new arrivals to Sicily, or a plane takes them to Crotone in Calabria.

The Italian government denied Human Rights Watch access to the Lampedusa camp, but visitors have described the poor conditions inside.³²³ According to one witness, an Italian journalist who spent time in the center posing as an asylum seeker, the guards subjected some detainees to physical and verbal abuse (see below).

On June 28, 2005, twelve members of the European Parliament who visited Lampedusa commented on the “suffocating” heat and poor ventilation in the four prefabricated containers used for sleeping accommodation, inadequate beds and bedding, widespread dermatitis among detainees caused by the use of salt water in the showers, and insufficient drinking water (one bottle per day for two people). According to detainees, the authorities cleaned the camp the night before the delegation arrived. In addition, more than 900 detainees were in the camp only four days before, more than four times the center’s capacity.³²⁴

Italian Senator Tana de Zulueta, who visited Lampedusa in October 2004, told Human Rights Watch that the detainees seemed terrified of return to Libya, especially to the hands of the Libyan police. They complained to her that they were unable to communicate with anyone outside the camp to tell their families they were alive. Many had not had access to a lawyer or judge.³²⁵

A delegation from the International Federation for Human Rights visited Lampedusa in December 2004. According to the organization’s report, the camp “is extremely rundown with very rustic living conditions.” The facilities at the time of the visit were relatively clean but “in an extremely bad state.” The toilet stalls had no doors and they opened onto the communal area with washbasins.³²⁶

The most detailed description comes from the Italian journalist Fabrizio Gatti, mentioned above, who spent one week in the center in September 2005 by posing as a Kurdish asylum seeker. In his article published in the Italian magazine L’espresso on October 7, 2005, he described highly unsanitary conditions, including blocked sinks and toilets. At one point, Italian officers forced him to sit in sewage and kept him for hours in the scorching sun. On another day, Gatti reported, policemen forced a group of detainees to strip naked and made them and other detainees run a gauntlet. Gatti said he saw Italian police strike some of the detainees, and subject others to lewd and abusive behavior in front of children.³²⁷

As of March 2006, a cooperation agreement on Lampedusa between the Italian government, UNHCR, IOM, and the Italian Red Cross should help improve the conditions. Under the agreement, UNHCR is maintaining a presence on the island with a mandate to help identify asylum seekers and to provide “general information on asylum rights to persons landing in Lampedusa whilst assisting those most vulnerable.”³²⁸ The IOM and Italian Red Cross are present at the camp to deal with migration-related issues and unaccompanied minors, respectively. According to IOM, its presence “will be aimed not only at helping the authorities manage irregular migration flows, but also at helping to find solutions for migrants in accordance with international law and principles of human dignity.”³²⁹ By May 2006, the authorities had provided additional sanitary facilities, protection from the sun, and a new housing block for women, but conditions remained poor. In a speech to parliament in early July 2006, Interior Minister Giuliano Amato said the government had increased the number of staff at the Lampedusa center and had improved transfer services.³³⁰ Later that month he announced that, since January 1, 2006, roughly 9,500 foreigners had passed through facility.³³¹

Parties within Prime Minister Romano Prodi’s governing coalition and civil society organizations are exerting strong pressure on the government to close all temporary stay and assistance centers. On July 18, 2006, a group of parliamentarians presented a “White Paper on Temporary Stay and Assistance Centers in Italy” that documents rights violations in the centers and recommends their closure.³³² Interior Minister Amato has precluded closing the centers given “the need to provide for the detention of these people [undocumented migrants] until we can ascertain their identity and country of origin, and…the need to send [them] back to their countries of origin.”³³³ Amato has, however, instituted an ad hoc commission to evaluate conditions in the centers. The commission – led by Swedish Ambassador Staffan de Mistura and composed of Italian governmental and non-governmental representatives – is to visit all centers and produce a report with recommendations within six months. It conducted its first visit to Lampedusa on July 19, 2006, just as the center was overwhelmed by hundreds of new arrivals by sea.

Expulsions

Since at least 2004, the Italian government has expelled more than 2,800 migrants – and quite possibly refugees and others in need of international protection – from Lampedusa back to Libya, where the Libyan government then sent them on to their countries of origin. The Italian government claims these people had the opportunity to seek asylum while at Lampedusa but at times the authorities collectively expelled large groups without providing them an asylum review. Other individuals, while not returned to Libya, got expulsion orders from the Italian government and were allowed to stay in Italy for a limited time. Some of these people are refugees, fleeing violence in place such as Darfur, Ethiopia, and Eritrea.

According to the Italian government, cooperation between Italy and Libya on the “readmission of third-country nationals” is based on “informal agreements developed in the course of diverse bilateral meetings at the ministerial level.” A May 2006 letter to Human Rights Watch from the Italian Foreign Ministry elaborated:

The agreed-upon modality provides for the return to Libya of Egyptian citizens (and not of citizens of other third countries) who reached Italy illegally directly from the Libyan coast. The Italian authorities proceed with the return to Libya of these Egyptian citizens in full respect of domestic and international norms, following formal individual procedures, at the conclusion of an examination which includes a scrupulous evaluation of each individual’s situation. This procedure, obviously, has never been undertaken with respect to those who express, even informally, an intention to ask for political asylum.³³⁴

Despite this claim, some of the individuals returned to Libya came from countries other than Egypt, as shown below.

The first large-scale returns occurred in early October 2004, when the Italian authorities sent more than 1,100 persons to Libya – days before the E.U. lifted its eighteen-year arms embargo on Libya. The expulsions began on October 1, when the Italian government ordered the expulsion of ninety foreigners from Lampedusa.³³⁵ The next day three flights carried 300 more. The following day, four more planes removed some 400 persons and then, on October 7, four military planes returned still more. According to then-Italian Interior Minister Pisanu, the government expelled 1,153 foreigners in total on eleven planes (1,119 Egyptians, 11 Moroccans and 23 Bangladeshis).³³⁶ The expulsions “were absolutely necessary to block what appeared to be…an organized assault on our coasts,” he said.³³⁷

Italian officials told UNHCR that they were admitting people from Eritrea, Ethiopia and Somalia who had transited through Libya to the asylum process, but that they were sending other nationalities to Libya.³³⁸ According to the International Federation for Human Rights, however, the identification of nationality seemed to have been determined primarily by the intuition and snap judgments of two Arabic interpreters, and Italian officials did not make available the names of those expelled, despite repeated requests from Italian politicians.³³⁹

UNHCR, which the government denied entry into Lampedusa until October 6, expressed concern that the “rushed method used to sort out the incoming persons by nationality has not allowed individual persons from all national groups concerned to claim asylum.” The Libyan government refused the UNHCR office in Tripoli access to the people who were returned, UNHCR said, raising concern that “some people who may be in need of protection will be forcibly returned to their homeland without access to any asylum procedure.”³⁴⁰

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also expressed deep concern about the collective expulsions. In a report published in April 2006, the committee noted serious failures to abide by established administrative procedures and to ensure respect for legally-stipulated judicial supervision of the detention and expulsion of foreigners. It observed that “no specific evaluation was made on an individual basis to ensure that among the 1,243 persons refouled to Libya, there were no persons who might possibly run the risk of persecution that would have prohibited their expulsion from Italian territory…whether to Libya or to another State where the Libyan authorities could be led to send them.”³⁴¹

The Committee recommended that “appropriate evaluations should be made in each individual case to ensure that…there are no persons who could run a real risk of being subjected to torture or ill-treatment, not only in Libya, but also in any other State where the Libyan authorities could be led to send them.”

More generally, the Committee noted that immigration officials and justices of the peace – who authorize expulsion orders under Italian law – did not have sufficient access to “independent and objective information about the human rights situation in the countries of origin/destination of the foreigners to be expelled.”

Between January 1, 2004 and November 25, 2004, immigration officials processed 10,468 immigrants in the Agrigento province of Sicily (the vast majority of whom had landed at Lampedusa or were intercepted at sea and subsequently taken there). Of these, only seventy filed an application for asylum. This figure, in the Committee’s view, “appears very low” given the nationalities represented in the total group. (e.g. 550 Eritreans, 477 Sudanese, 117 Ethiopians).

In March 2005, the second wave of mass expulsions from Italy to Libya took place. Again, the Italian government denied UNHCR access to Lampedusa during the process.

According to the Italian Ministry of Interior, the government transferred 421 of the 1,235 people who had landed in Lampedusa over the previous week to other Italian centers in which they claimed asylum. 101 people presented formal requests for asylum in Lampedusa. The government expelled 494 Egyptians to Libya (of whom 180 were on two charter flights that left on March 17) and seventy-six Egyptians directly to Egypt.³⁴² Then-Minister Pisanu said the government’s actions “rigorously” complied with international laws and conventions.³⁴³

UNHCR expressed regret at the lack of transparency. At a press briefing on March 18, an agency spokesman said:

UNHCR is deeply concerned about yesterday’s deportation of some 180 people aboard two flights from the Italian island of Lampedusa to Libya, with an Italian police escort. UNHCR, which has a senior staff member on the island, had requested access to the reception centre, in order to ensure that anyone who wishes to make an asylum claim has the possibility to do so, and that any claims that were made are properly and fairly assessed. That request, which was made in accordance with UNHCR’s mandate to protect refugees – including access to asylum seekers and monitoring of asylum systems – has so far been refused by the Italian authorities.³⁴⁴

Pisanu responded to UNHCR by saying the agency should have “more respect for those who try to solve problems.”³⁴⁵

For the expulsions in October 2004 and March 2005, the Italian authorities blindfolded and handcuffed some of the deportees, prompting the Libyan government to criticize the physical conditions under which the expulsions took place. People arrived in Libya with no luggage, no possessions, some of them barefoot, with handcuffed wrists. One policeman escorted each deportee, a Libyan immigration official said. “We [the Libyans] bought them shoes and clothes,” `Ali Mdorad told Human Rights Watch. “Libya never shackles or handcuffs people during a deportation.”³⁴⁶ (See Chapter VII, “Forced Return,” for examples of mistreatment of detainees by the Libyan government during deportations.)

At the time of Human Rights Watch’s mission to Italy in late May 2005, another 400 people had recently arrived in Lampedusa. On May 14, 2005, Alitalia flight AZ8300 carried sixty-seven people from Lampedusa to al-Bayda in western Libya.³⁴⁷ On May 16 and 21, 2005, deportation flights to Libya took place with an unknown number of people,³⁴⁸ followed by the expulsion of at least forty-five people on June 22.³⁴⁹ The Italian government did not deny press reports about these deportations, or the protests of Italian nongovernmental organizations.³⁵⁰ Presumably, the Italian government does not want to deny reports that serve as a useful deterrent to those who may try to enter the country.

According to the Libyan government, the total returns from Italy to Libya in 2005 totaled 1,876. These people were “accepted and returned to their countries of origin.”³⁵¹

Following the May 2005 expulsions, a commentary by the Italian Section of Amnesty International noted that in Lampedusa a written notice in a variety of languages informs detainees where they are and states: “You shall remain here until you are transferred to another centre to be properly identified, where you will have the opportunity to explain the reason for your arrival in Italy.” Amnesty asserted, however, that many of those deported in the recent waves of expulsions “were not even aware of the real destination of their flight and believed that that they were being sent to ‘another centre’ on mainland Italy to be ‘properly identified.’”³⁵²

The European Parliament delegation that visited Lampedusa in June 2005 identified an additional problem: consular authorities of some countries were regularly taking part in the procedure to determine a camp detainee’s nationality. According to a report from the delegation’s trip, the EP members told the camp directors that it “would be very dangerous for a potential asylum seeker to be identified by his own consular authorities.” The camp directors replied that recently nobody had claimed asylum. “This information is in itself incredible (it would be the first centre in Italy where this does not happen),” the report said. “And it conflicts with the documents shown to us by the migrants themselves.”³⁵³

While the Italian government denied entry at crucial moments to Lampedusa for UNHCR and Italian organizations, prior to at least one mass expulsion it allowed Libyan government officials to interview detainees in the camp. On March 16, 2005, three Libyan security officials held talks with Italian police and government officials and then questioned some of the 790 people held at the camp, trying to determine their countries of origin and route to Italy.³⁵⁴

The denial of the right to seek asylum on Lampedusa may be seasonal in nature, meaning that lawful procedures are more closely followed in the winter when arrivals are few, but less respected in the summer when many more people risk the dangerous trip across the Sicilian Channel. One Sudanese man interviewed by Human Rights Watch, for example, testified that when he arrived at Lampedusa in February 2004 he was able to apply for asylum that same day and the Italian authorities asked everyone there – including the Egyptians and other Arabs – if they wanted to claim asylum.³⁵⁵

A few more hundred people reportedly arrived in Lampedusa in April 2006, and it remains unclear if the Italian government will provide those who request it with a proper asylum review.³⁵⁶ In a positive sign, on May 24 under secretary for immigration in the Ministry of Interior, Marcella Lucidi, said that “there will be no more expulsions of immigrants to those countries that have not signed the Geneva Convention, and among these Libya…”³⁵⁷ Other Italian officials have stressed continued cooperation with Libya, so it remains to be seen whether Lucidi’s comments will become policy.

Once the Italian government has expelled foreigners back to Libya, it also pays for charter flights for Libya to send the people home. According to the European Commission report, between August 2003 and December 2004, the Italian government paid for fifty charter flights that transported 5,668 people. The main nationalities were Nigerians (1,804), Ghanaians (1,580) and Egyptians (1,401).³⁵⁸

In July 2005, a group of thirty parliamentarians formally petitioned the prosecutor’s office in Rome to open a preliminary investigation into possible criminal liability of the Ministry of the Interior for events at Lampedusa in October 2004 and March 2005. The petition asked that the investigation determine whether the deprivation of liberty in the Lampedusa CPT and subsequent forced expulsions constituted criminal acts under national and international law, and determine whether the Interior Minister or other government officials are criminally liable. The petition also requested that the investigation identify and locate the individuals expelled to Libya from Lampedusa on the above-mentioned occasions to determine (a) whether each individual received notification of the expulsion decision or whether the measures constituted collective expulsions; (b) whether each individual was repatriated to his or her country of origin through an appropriate procedure without violations or degrading or inhuman treatment; and (c) whether any individuals died, disappeared or suffered serious harm as a result of their expulsion to Libya.

In mid-March 2006 the prosecutor in charge of the case forwarded the file to the Court for Ministerial Crimes of the Rome Tribunal (Collegio per i reati ministeriali del Tribunale di Roma ), which determines whether accusations against ministers merit investigation.³⁵⁹ Ten days later, the prosecutor filed a motion to close the investigation into Pisanu but, as of June 6, 2006, the court had not decided if the investigation should commence.³⁶⁰

Push-backs

On July 14, 2003, the Italian Ministry of Interior issued a decree that enabled the Italian navy to intercept ships carrying asylum seekers and migrants and, if possible, force the vessels back to the territorial waters of the countries from which they came.³⁶¹ The decree included no consideration for identifying asylum seekers, and its terms violated the principle that the state in whose territorial waters a vessel is intercepted has the primary responsibility for addressing any protection needs of persons on board.³⁶²

Human Rights Watch does not know how many times the Italian navy has implemented this decree, but one recorded instance was on October 4, 2004, when an Italian warship intercepted a wooden boat with some 150 people in international waters off Lampedusa and summoned the Tunisian navy to escort it back to the North African coast.³⁶³

Italy in Breach of its Human Rights Obligations

Italy has the same legal obligations as Libya under the universal human rights instruments (in particular, not to arbitrarily detain, collectively expel or refoule), but it also has obligations under European human rights law. Italy’s non-refoulement obligations³⁶⁴ under both the Refugee Convention and the European Convention on Human Rights (ECHR) are triggered the moment an individual enters Italian waters or is interdicted on the high seas by the Italian navy.³⁶⁵ Italy therefore shares responsibility for any refoulement resulting from expulsions and for any torture or inhuman or degrading treatment that the expelled individual may suffer in Libya (or if returned by Libya to their country of origin or any other place).

Article 13 of the ICCPR, article 4 of Protocol 4 of the European Convention on Human Rights and article 19(1) of the E.U. Charter of Fundamental Rights each prohibit collective expulsion.³⁶⁶ The European Court of Human Rights has interpreted “collective expulsion” to mean “any measure by which foreigners are forced, as a result of belonging to a group, to leave a country, apart from cases in which this measure is adopted following and based on a reasonable and objective assessment of the specific situation of each of the foreigners who compose the group.”³⁶⁷ For an expulsion to be non-discriminatory according to international and regional human rights standards, the differentiation on grounds of nationality must be both legitimate and proportionate. In every case, there must be an individual determination of risk on return.

Italian legislation and regulations require that for an expulsion to be carried out, certain safeguards must be met, such as access to UNHCR, legal counsel, competent interpreters and a judge who will confirm the order. Each person must receive written information in a language which he or she understands that they are about to be expelled and must be told of their right to appeal against such an order. Many of the expulsions from Lampedusa do not seem to have complied with these requirements. It appears that in many cases, the Italian authorities sorted people by nationality, mostly expelling the Maghreb nationals and transferring the sub-Saharan Africans to other detention centers in Italy, where they could request asylum. Such sorting by nationality denies the right to seek asylum as an individual right, and ignores the possibility that certain Egyptian nationals, for example, may have grounds to seek asylum.³⁶⁸ A representative of CARITAS told Human Rights Watch: “When we hear that people have been sent back immediately, after two days, then it is clear that they were sent back based on how they look.”³⁶⁹

To avoid the Italian term for expulsion (“espulsione”), which would trigger the national legal obligation that a district judge validate every expulsion,³⁷⁰ the Italian government uses the term “respingimento,” which translates as “pushing back” or “stopping at the border.”³⁷¹ The government apparently hopes to put what is happening in Lampedusa into the same category as the French “zones d’attente” (international zones in which persons are detained in airports).

The European Court of Human Rights has responded with grave concern over the expulsions to Libya after two Italian lawyers filed an application to the court on April 1, 2005, on behalf of seventy-nine men held at Lampedusa and facing expulsion, and who had authorized one of the lawyers to represent them.³⁷² On April 6, the court posed four questions to the Italian government:

1) What identification procedures are being applied [in Lampedusa];

2) Whether any asylum requests have been presented and, if so, how the procedure is progressing;

3) Whether an expulsion procedure is actually in progress; and

4) To supply copies of the relevant documents.³⁷³

The Italian government responded by the May 6 deadline but the court considered the response inadequate. According to article 39 of the procedural rules, on May 10 the court ordered the suspension of any removal action related to eleven of the seventy-nine applicants.³⁷⁴ On May 12, lawyers submitted a new application to the court regarding another man facing expulsion. The next day the court again posed the same series of questions to the Italian government. In addition, the court asked whether the applicant had been placed in a “centre de retention” and to see the relevant documents for this order, and also asked the Italian government to explain the concrete possibilities for the applicant to challenge the expulsion procedure and the order to be “retained” (i.e. whether there is an effective domestic remedy).³⁷⁵

Following the court’s lead, the European Parliament passed a resolutionexpressing deep concern over Italy’s illegal expulsion of third country nationals to Libya.³⁷⁶ The European Parliament sent a follow-up delegation to Libya in early December 2005, which was informed that the Libyan government had sent most of the people returned from Italy in 2004 and 2005 to their countries of origin.³⁷⁷

At the time of Human Rights Watch’s research in Italy, the Italian government had not expelled any of the individuals identified in the court applications. The government still detained one of the first eleven applicants, whose expulsion the court had suspended, in the Crotone CPT. As his expulsion was not possible due to the court suspension, his lawyer said, by law the government should have released him from detention.³⁷⁸

The Italian government does not argue that Libya is a “safe third country,” although it does stress that Libya signed the African Refugee Convention and was president of the U.N. Commission on Human Rights in 2002.³⁷⁹ Rather, the Italian authorities argue that those they expel never attempted to claim asylum. Like the Libyans, they give the impression that there are no refugees among the migrants whom they detain and expel. More generally, the Italians argue that the overwhelming majority of asylum seekers in the country do not qualify for asylum. In 2004, for example, Italy classified over 91 percent of asylum seekers as “rejected,” although the government granted more than one quarter of those a subsidiary form of protection. UNHCR challenged the statistics – which were presented in the Italian media as meaning that only 8 percent of asylum seekers in Italy were genuine – as a “serious distortion of the true picture.”³⁸⁰

Lack of Legal Basis for Returns to Libya

According to Libyan immigration officials, the Italians are mostly sending back Egyptians. Libya then returns them directly by bus to Egypt within a matter of days. Given that they are not Libyan nationals, it remains unclear why Italy has returned them to Libya rather than directly to Egypt.³⁸¹

Libya has signed no formal readmission agreement with Italy,³⁸² a fact confirmed to Human Rights Watch by the Libyan government.³⁸³The returns – like the preferential oil deals between the two countries – are apparently based only on verbal agreement. One Libyan official told Human Rights Watch that the Italians and Egyptians also reached a verbal agreement in November 2004 allowing Italy to return 100 people per month.³⁸⁴ Italy has no formal readmission agreement with Egypt either but, like Libya, Egypt has accepted informal readmissions from Italy of third country nationals (e.g. Sri Lankans) known to have transited through Egypt.³⁸⁵

The lack of formal readmission agreements is important because, in Italy, all international agreements, including readmission agreements, must go before parliament.³⁸⁶ Returns under such agreements also have to comply with certain procedures, such as the need for the government to produce travel documents and evidence of nationality. A formal readmission agreement with Libya would thus slow the expulsion process and make it substantially more expensive.