Italy May Face an Inquiry under Article 20 UN Convention against Torture for its role in the Systematic Torture of Migrants “Pulled Back” to Libya

There is extensive evidence of widespread and systematic violations of the human rights of migrants[1] in Libya. These violations include torture, summary executions, arbitrary and indefinite detention, rape and forced labour, all of which have been documented by relevant United Nations bodies and international NGOs.

Many migrants have attempted, and continue to attempt, to escape Libya by crossing the Mediterranean in unsafe boats and at the risk of drowning. Their objective is to reach safety in Europe where they can assert their basic rights, including to a refugee status determination procedure. The majority have endured unspeakable brutalities before embarking on the desperate journey. A German diplomat based in Niamey, Niger, described the conditions in migrant detention centres in Libya as “concentration camp-like” in an internal diplomatic cable to Chancellor Angela Merkel: "[e]xecutions of migrants who cannot pay, torture, rapes, blackmail and abandonment in the desert are the order of the day there.”[2]

Several UN bodies including the United Nations High Commissioner for Refugees (UNHCR) and International Organization for Migration (IOM) have called for an immediate halt to the disembarkation of rescued migrants in Libya. The Council of Europe Commissioner for Human Rights has gone further calling specifically on Italy to cease all cooperation with the Libyan Coast Guard due to the latter’s direct involvement in the gross abuse of migrants who are brought back to Libya. In its Concluding observations on the fifth and sixth periodic reports of Italy the UN Committee against Torture (CAT) expressed serious concerns “at the lack of assurances that cooperation for the purpose of enhancing the operational capabilities of the Libyan Coast Guard or other Libyan security actors would be reviewed in light of possible serious human rights violations”.

Despite the international outcry, European governments’ strategies for controlling migration across the Central Mediterranean have continued to focus on outsourcing border control to the Libyan authorities by mandating the latter to intercept and “pull back” migrants who attempt the crossing.

"Italy is also the only European country that has signed a bilateral agreement with Libya for the specific purpose of stemming 'illegal migrants' fluxes [sic]"

Of all European states, Italy has played the most significant role in outsourcing such interceptions because of the extent of the aid and assistance it has provided to the Libyan authorities. Italy is also the only European country that has signed a bilateral agreement with Libya for the specific purpose of stemming “illegal migrants' fluxes [sic]” through the direct provision of resources to “the Libyan institutions in charge of the fight against illegal immigration” (MoU Art. 1). Since the MoU was signed in 2017, at least 40,000 individuals have been intercepted by the Libyan Coast Guard and pulled back to Libya.[3]

In light of Italy’s extensive and multi-pronged support for the Libyan Coast Guard, the question arises as to Italy’s responsibility under international law and specifically the UN Convention against Torture, for the human rights violations suffered by migrants who are pulled back.

Legal Action under CAT Article 20

Article 20 of the Convention against Torture provides that the Committee may invite a State Party to cooperate in the examination of “reliable information” that torture is being “systematically practiced” on its “territory”. The inquiry procedure is confidential. The Committee may designate one or more of its members to receive the observations of the State Party and carry out in-country visits. The Committee may decide to publish a summary of the results in its annual report to the General Assembly of the United Nations or, if agreed with the State, to make public the full text of the report. Italy is subject to the Committee’s inquiry procedure because it did not opt-out when it ratified the Convention.

On 26 June 2020, the Centre Suisse pour la Défense des Droits des Migrants (CSDM) submitted a formal request for the opening of an inquiry procedure concerning Italy’s conduct in the Central Mediterranean. In our submission, we argue that Italy’s strategy of outsourcing coercive border management functions to the Libyan Coast Guard breaches its commitments under the CAT and requires the Committee’s urgent examination.

We submit that there can be little doubt that available information regarding the torture of migrants in Libya satisfies the evidentiary standard of “reliable information” under Article 20 CAT and that the alleged violations constitute a “systematic practice” under the definition the Committee has provided.[4]

Concerning the term “territory” in Article 20, this term must be understood as a jurisdictional concept. The Committee has established a control-based test for jurisdiction. A State party exercises jurisdiction, even outside its national borders, when it asserts “directly or indirectly, in whole or in part, de jure or de facto effective control,” over individuals or an area (General Comment 2, § 16). Importantly, the Committee has further clarified that this control-based test for jurisdiction applies to “all provisions of the Convention” (J.H.A. v. Spain (Marine 1), Communication no. 323/2007, § 8.2).

Because of Italy’s decisive role over all aspects of Libya’s interdiction programme, Italy is exercising de factoeffective control over migrants in the Central Mediterranean and its actions therefore come within the jurisdictional scope of the CAT.

In particular, the Libyan Coast Guard is only able to operate due to Italy’s comprehensive support which includes funds, ships, training, and command and control structures. Real-time naval and aerial surveillance in the Central Mediterranean is provided to the Libyan Coast Guard directly by Italy and through EU programmes in which Italy participates. Without these resources, the Libyan authorities would not be able or willing to intercept migrant boats, or even to locate them in their own search and rescue zone (SAR).

By means of this cooperation, Italy has entirely externalised its border control to Libya and has co-opted the Libyan Coast Guard which has become its proxy in the Mediterranean. This shift from “push-backs” – involving Italy’s own navy and which were declared illegal by the ECtHR in the Hirsi Jamaa [GC] judgment Application no. 27765/09 – to “pull-backs”, where Italy outsources the very same activity to the Libyans, constitutes nothing other than a blatant attempt to avoid accountability under human rights law, by exercising a form of contactless control.

However, Italy’s actions do not escape the purview of the CAT’s jurisdictional trigger of “de facto effective control” and the aim of our submission under Article 20 is to invite the Committee to establish the facts and legal responsibilities of Italy in the context of its actions in the Central Mediterranean.

Authors:

Boris Wijkström is the director of the CSDM since its founding in 2014. Previously he has worked as a refugee lawyer in the United States and Switzerland, and as legal advisor with the OMCT in Geneva 2004 – 2008.

Ousman Noor is a staff lawyer with the CSDM. He completed his education at SOAS (University of London, 2007) and the University of Oxford (2009) and practiced as a barrister specialising in immigration, refugee and human rights law in London for 9 years.

The Centre Suisse pour la Défense des Droits des Migrants (CSDM) is a non-profit organization based in Geneva, Switzerland. The CSDM engages in strategic litigation before international bodies, including the UN Treaty Bodies and the European Court of Human Rights, on behalf of refugees and migrants.

[1] The term “migrants” is used inclusively to refer to asylum seekers, refugees and economic migrants.

[2] Deutsche Welle, 2017, “Libyan Trafficking camps are hell for refugees, diplomats say”; https://p.dw.com/p/2WaEd.

[3] Italian Institute for International Political Studies (ISPI), Estimated Migrants Departures from Libya, https://docs.google.com/spreadsheets/d/1ncHxOHIx4ptt4YFXgGi9TIbwd53HaR3oFbrfBm67ak4/edit#gid=0;

[4] See https://www.ohchr.org/EN/HRBodies/CAT/Pages/InquiryProcedure.aspx