The EU and Migrant Detention in Libya: Complicity Under the Microscope Finally?

The situation in Libya is deteriorating, with each day bringing news even more dire than the previous, regarding the state of the conflict and the plight of civilians. Caught up in this complex situation are significant numbers of individuals fleeing from their countries and seeking refuge, who have been forcibly relocated to Libya and are now languishing in multiple detention centres. 

The last few weeks have seen an escalation in the fighting – with accounts of detention centres being targeted. And finally on 3 July, with a certain  inevitability, an airstrike by a warlord on a detention centre in Tajoura, Tripoli, has killed 44 and injured over 130 individuals held there, at last count. This is the second time this particular detention centre has been hit, which houses over 600 migrants, including women and children, despite the centre’s coordinates having been provided to the warring parties. 

The UN Secretary General as well as officials of the European Union have made strong statements, expressing shock at the air strikes. The UNSG has called for an “independent investigation”, and the head of the UN Support Mission in Libya (UNSMIL) has called this a war crime. However, there has been no condemnation by the UN Security Council. Rather, despite three hours of meetings in the aftermath, there seems to be no consensus or condemnation by the UNSC.

EU Policy of “Deterrence”… 

This airstrike brings into sharp focus not just the ferocity and brutality of the conflict in Libya, but specifically the role of the EU in placing vulnerable migrants and refugees in harm’s way. The Libyan conflict seems intractable and has been raging since 2011, and there has been significant scrutiny of the non-state armed groups. However, the plight of migrants being detained in a conflict zone, and at the behest of the EUhas undergone less scrutiny.

Since 2014, the EU ceased operations to rescue migrants at sea. And in its stead, the current “deterrence” policy consists of pushing those at sea back to land, away from Europe. Part and parcel of this policy is the repatriation of individuals from sea to land – and specifically back to detention centres in Libya. Training the Libyan coast guard and funding the operations are a key component of EU support. 

Various Libyan militia – notwithstanding their role in human trafficking and slavery – are being funded to keep individuals in detention centres, in and around Tripoli. There are numerous credible accounts of dire conditions in these centres, ranging from the lack of food and basic healthcare, to torture, sexual assault and killings. A Human Rights Watch report from early this year provides details of these abysmal conditions and violations of international law. 

…and Denial

This also comes at a time of increasing denial, as well as the criminalization of humanitarian aid across the EU and the US (something I have written about here).

While the UNHCR has previously urged the EU to stop the return of migrants to Libya, the EU has refused to react to similar statements in the aftermath of this air strike.  

The EU migration commissioner in 2017, addressing the European Parliament has scoffed at allegations of complicity of the EU, stating:

“Fanciful statements about complicity and blame might grab headlines but they are not helping anyone, not least the migrants themselves.

The situation in Libya is not bad because of the European Union. This discourse has to stop.”

However, as the events of 3 July indicate, there are significant perils in facilitating the capture and detention of migrants in an admittedly lawless conflict zone, with little control over the warring parties or the conflict. 

Just over a month ago, a communication to the Prosecutor of the International Criminal Court (ICC) under Article 15 (relating to initiation of proprio motuinvestigation), alleged thousands of deaths as a direct result of EU policy. The filing argues that crimes against humanity in regard to the drownings in the Mediterranean should result in accountability, and for this EU states are responsible. The shift from “Mare Nostrum” (which was a search and rescue policy) to “Triton” (the current EU policy) has been described as a “critical aspect of mens rea” in the commission of the crimes.

In addition to the drownings at sea, allegations of crimes include the forced transfer of individuals to detention facilities, compared to concentration-camps. As to who is responsible, the communication does not specify particular officials but points to the category of those “most responsible”, including public officials, EU commissioners and state officials, apart from the Libyan armed groups involved. It is however potentially left to the Prosecutor to determine who would fall within the scope of her investigation, if any. It is worth noting also that nearly all EU states are parties to the Rome Statute and are thereby bound by the obligations – including those of cooperation.  

Furthermore, there is already an ICC referral from the UNSC for the situation in Libya, commencing from February 2011. The referral clearly does not reference the role of the EU as described by the recent communication and relates instead to the actions of warring parties in the country. 

In her recent update to the UNSC on the situation in Libya, the ICC Prosecutor stated: 

“I will not hesitate to expand my investigations and potential prosecutions to cover any new instances of crimes falling within the Court’s jurisdiction, with full respect for the principle of complementarity.”

Clearly this should include the air strike on the detention centre in Tajoura on 3 July as a war crime, and the role of the armed group responsible. As of today, there has been no statement of the Prosecutor in regard to the detention centre strike. This atrocity however will add credence to the communication presented to the ICC regarding the role of the EU. 

Therefore, the abhorred ‘discourse’ blaming the EU is now bound to gain considerable ground and will not stop anytime soon.