Regarding Rights

Academic and activist perspectives on human rights

Does the End Justify the Means? The Italian Machiavellian Response to Illegal Immigration

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“La porta di Lampedusa” (Lampedusa’s door), also known as “La porta d’Europa” (Europe’s door). The monument, “looking” towards Africa, was built in 2008 on the Italian island of Lampedusa in memory of more than 10,000 migrants who died over the years while they were trying to reach the island.

By Paola Forgione

Gaddafi’s first official visits to Italy back in 2009 and 2010 hit the headlines for the extravagancies of the Libyan leader, including his hiring of hundreds of Italian models to be the audience of his lecture on Islam, and his failure to go to a prescheduled meeting at the Italian Parliament. However, the leader’s folkloristic eccentricities were probably reflecting his egocentric satisfaction for the agreement that he had signed with the then Italian Prime Minister Berlusconi in August 2008, whose anniversary was the reason for his visit. In the agreement, the “Treaty on Friendship, Partnership and Cooperation” (hereinafter “The Treaty”), Italy expressed its apology for the “pain inflicted to the Libyan people” during the colonization of Libya, carried out by the former Kingdom of Italy between 1911 and 1943. Under the chapter titled “closing the door on the past”, Italy committed to investing US$5bn for infrastructure in Libya. In exchange, Libya undertook to cooperate with Italian authorities in the fight against illegal immigration.

Due to its geographical position, Libya plays a key role in migration flows from Africa to Europe, since many Sub-Saharan Africans (especially from Somalia, Eritrea, Ethiopia and Sudan) head there to ship towards the Italian coast, helped by unscrupulous human trafficking criminal organizations. Under the Treaty and its Protocols, the Parties agreed to patrol the Libyan coast with vessels provided by Italy and a mixed Libyan-Italian crew, in order to “repatriate clandestine immigrants”.[1] However, the Treaty did not contain any specific provisions on migrants’ rights. As a consequence, whereas it was successful in decreasing the number of illegal immigrants (at least according to the data provided by the former Berlusconi government), it was a catastrophe for human rights. In particular, the Treaty led to the so called ‘push-back’ operations consisting of the interception of migrants on the high sea and their forced return to Libya. In a 2010 report, the Committee for the Prevention of Torture (CPT) of the Council of Europe pointed out that, by returning migrants to Libya without any screening procedures to identify potential asylum seekers, the ‘push-back’ policy infringes the non-refoulement principle, prohibiting the forcible return of an individual to a country where s/he would be at risk of serious human rights violations.[2] Italy contended that international protection had not been formally sought by migrants rescued by Italian vessels, but the CPT observed that the psycho-physical conditions of sea survivors jeopardized their actual ability to express request for asylum. Thus, the right to seek asylum shall not be understood as merely ritual-formalistic: migrants shall be put in the effective position to seek international protection.

Italy was also condemned by the European Court of Human Rights for violation of article 3 of the European Convention on Human Rights, which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. First, the Court found that, by sending migrants back to Libya, Italy exposed them to a real risk of torture and ill-treatment, widespread in Libya’s migrant detention centres, as had been well-documented by NGOs and by the UNHCR. Second, since Libya had not (and still hasn’t) ratified the 1951 Refugee Convention and did not (and still doesn’t) have any asylum procedures, once pushed back to Libya, immigrants might face so-called “indirect refoulment,” namely the forced return to their country of origin, where they might be subject to torture and inhuman treatment.[3]

Calls for the revision of the Treaty, also put forward during Italy’s 2010 Universal Periodic Review, were persistently ignored by the former Italian government. The Italian Interior Minister’s unfortunate choice of words back in 2010 clearly showed his scarce consideration of migrants’ rights. Commenting on the shooting of an Italian fishing boat – for reasons still unclear – by an Italian-Libyan patrol vessel, he declared: “I think that [the accident] was a mistake. Probably the Libyans mistook the fishing boat for a boat carrying illegal immigrants,” as if in this case the gun firing would have been justifiable! The former government was mostly concerned with fighting clandestine immigration to promote security and crime prevention, a powerful campaign to appeal to public opinion. To achieve this goal, migrants’ rights issues were “swept under the rug”.

During the ‘Arab spring’, the Treaty was de facto suspended. However, throughout 2012 the Libyan National Transitional Council and the new Italian leadership engaged in new negotiations to tackle illegal immigration. A new agreement could represent the opportunity for Libya to finally deal with immigration as a human rights issue, rather than a weapon to blackmail Europe in return for financial support. Accordingly, Libya should ratify the Refugee Convention and provide procedures to grant asylum.

As for Italy, its ability to handle migrants from Africa is challenged by the current economic crisis and by the lack of a well-established common policy at European Union level. Nevertheless, the exceptional exposure of the country to immigration does not excuse the use of illegal means to counter the phenomenon, and Italy must demand Libya’s commitment to migrants’ rights as the condition sine qua non to further engage in negotiations.

An agreement balancing respect for human rights with moves against illegal immigration would represent a model for other treaties between southern European and northern African countries, as well as an important step towards the democratization of the newly established post-Arab spring governments. However, the secrecy of the ongoing negotiations on the one hand, and, on the other, the increase of violence against South-Saharan migrants in Libya, commonly perceived as mercenaries supporting Gaddafi’s regime,[4] seem to go in the opposite direction.


[1] See Additional Protocol of 4 February 2009.

[2] Article 33 of the 1951 Convention on the Status of Refugees.

[3] See Hirsi and Others v. Italy, Application No 27765/09, judgment of 23 February 2012, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109231#{“itemid”:[“001-109231”]

[4] See the report of Amnesty International at http://www.amnesty.org/pt-br/library/info/EUR01/013/2012/en

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