Finding Hell in Libya; The Failure of the EU’s Human Rights Regime

It is six years since the fall of Gaddafi, and there is still no strong functioning central government in Libya. Instead, Libya is divided between armed warlords and militias, all of whom commit human rights abuses that particularly target refugees. Entering Libya through other countries on the way to Europe, refugees are mistreated, raped and sold as slaves. Jean-Claude Juncker, the President of the European Commission, said “I cannot sleep soundly at the thought of what happens to those people in Libya who have been looking for a better life and have found hell in Libya.” The EU’s response to the refugee situation in Libya is hypocritical, because it ensures that, through cooperation with the Libyan Coast Guard, refugees are not able leave Libya for Europe.

Up to a million migrants reside in Libyan camps, where they run the risk of being sold into slavery or later dying on their journey to Europe. The EU’s involvement in the containment of refugees in Libya raises the question of whether the EU is committed to upholding human rights in formulating and implementing foreign policy. The current situation of EU involvement in Libya, combining security policy with human rights concerns, brings the role of the EU in the international human rights regime into question. The EU itself is not legally included in the international human rights regime, despite the commitment of EU Member States to the United Nations human rights doctrine. In this article, I first examine the EU’s global normative role and the existing legal instruments (or lack thereof) institutionalizing human rights within the EU. This is done with a specific focus on external or “third country” dimensions of the issue. Then, I will examine the situation of EU migration policy in relation to Libya and the international human rights implications of EU policy-making. Finally, I will discuss the fallacy of the EU as a “global champion of human rights” as a result of institutional inability in the case of Libya.

In the Treaty of Lisbon, the European Union expresses ​​foreign policy as an interplay of politics and values. On the common foreign and security policy, the Treaty’s Article 21 of Chapter 1 emphasizes the key role of human rights:

“The Union’s actions on the international scene shall be guided by… the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and the solidarity, and respect for the principles of the Charter of the United Nations and international law… It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.”

As the first article in the chapter on “External Action of the Union,” this message shows a picture of a humanitarian organization, as many see it. In addition to the already established close ties to human rights organizations, the European Commission is also discussing the integration of human rights principles into the EU’s external development policy. According to the “EU Action Plan on Human Rights and Democracy 2015-2019“, the EU will place human rights at the heart of the EU Agenda, focusing in particular on cooperation with the UN and other human rights groups. Yet, are there any pre-existing structures to implement the EU’s international human rights objectives in foreign policy actions?

The 1953 European Convention on Human Rights saw the creation of the European Court of Human Rights, which is now the most active human rights enforcement body in Europe, and is an essential example of the collapse of international human rights. Since the court only handles cases of abuse amongst member states, it reflects the issue of human rights institutionalization and the exclusion of extraterritorial human rights obligations in Europe. This trend is also reflected in other EU human rights commitments, such as the Maastricht Treaty, the Charter of Fundamental Rights of the EU, and the Treaty of Amsterdam. The Treaty of Maastricht, in agreement with the European Convention on Human Rights (ECHR) and the constitutional traditions of the Member States, was an introduction to ensuring human rights in Europe. In 2000, with the adoption of the EU Charter of Fundamental Rights (GRU), the European Union placed democracy and human rights at the heart of EU internal and external policies. This charter should preserve and strengthen the rights of the European Convention on Human Rights, but it is does not have the strength of a treaty that has been signed by each EU member state, and it only applies within the European Union. As a result, a disconnect developed between European human rights law and international human rights, and the obligations of the member states to the UN rights regime is not included in European law. The EU is generally seen as a Western normative power, but with a growing role in international economy and politics on the world stage, the problem of institutional human rights structures becomes increasingly evident, especially on the issue of migration controls.

The 1997 Amsterdam Treaty extended human rights in the European Union to protection against racism, xenophobia and discrimination based on sex, ethnicity, religion, age or disability, but only within the European area. This also consolidated EU cooperation on migration and asylum under the supranational first pillar and entrusted the Commission with the task of negotiating migration with third countries. Lavenex argues that this submission to the internal authority to enact and implement common laws on border control and asylum has led to an extension of standards to third countries. The EU’s common external migration policy has focused on external border control and has sought to restrict migrants’ access, particularly through cooperation with third countries to carry out migration controls. Through border controls, combating smuggling of migrants, and displacing migrants into third countries, the approach reflects a preventive approach to controlling migration flows. Another preferred method of the EU is the targeted use of development assistance to support the reception and support of refugees in third countries, which has been criticized by human rights activists as a “milder alternative to migration control measures” with its own humanitarian problems. It essentially enables the EU to restrict the flow of migration without rejecting internal normative legitimacy.

The EU implemented these external migration control methods in Libya through the EU marine and development aid of “Operation Sophia”. As a humanitarian endeavor of the EU, Operation Sophia was initiated in 2015 as a response to the humanitarian crisis of refugees drowning off the Libyan coast on the smuggling route to Europe. Sophia is one of three other EU operations in the Mediterranean that aim to disrupt smugglers and prevent the loss of life at sea. With the approval of the United Nations, the EU provided assistance and training to the Libyan Navy and the Coast Guard to combat smuggling, stop departures, dispose of ships and return refugees to Libya. The problem was and is that the migrants in Libya are face arrest, brutality, and persecution, trapped between traffickers and the Coast Guard. As a result of this policy, migrants in Libya face continued poor living conditions, and the number of deaths at sea has not declined, but rather has led to the use of more dangerous vessels.

The migration crisis challenges the core values of the EU, and some have even said its existence. Within the EU, there is little success at reaching a cooperative solution to refugee distribution, but there are certain guaranteed rights for those refugees. Yet, are these same rights present when implementing migration policy internationally?  EU policy at work in Libya represents a legal grey area of human rights law, where the jurisdiction of the European Court of Human Rights may not extend and the application is thus “nonexistent at worst, and uncertain at best.” The response with Operation Sophia allows a method of migration control that is consistent with human rights law, but at the same time prevents situations in which the EU would be formally obligated to apply human rights law. In terms of EU human rights law, the Operation is not in line with two principles of the European Convention on Human Rights: the non-refoulement principle and the right to life. Under the non-refoulement principle, which is also a part of the UN human rights regulations, an individual may not be returned to a place where he faces persecution. As a result of Operation Sophia, refugees may be deprived of the right to life as “collateral damage” during the disposal of smuggling vessels.

Scholars argue that the EU’s militarization of foreign policy, particularly in the case of migration policy, creates tension with third countries and also undermines the EU’s normative power and legitimacy. As a response to the situation in Libya, the German government has promised to give 120€ million to go to the improvement of the situation of refugees. This is simply a continuation of the economic development support of the EU to the end of keeping the refugee population in Libya. Since Libya is what could be called a weak state with little central control, it has little capacity to carry out and commit to the intended programs. The dispersal of monetary resources does not foster the internalization of norms and human rights protections, which is especially problematic in countries with deep socio-economic struggles and political instability like Libya. Also, under UN human rights criteria, internationally coordinated security maneuvers to support developing countries military capacity, such as those of the the Libyan Navy and Coast Guard, does not qualify as development cooperation. Although financial support is not very effective in the case of Libya, it is still more legitimate in terms of human rights.

In a report on the EU and International Human rights law, the UN called out the Charter of Fundamental Rights of the EU for not encompassing all of the rights protected in UN treaties, as well as lacking a competence to develop and implement a human rights policy outside of Europe. The internal legal order of the EU makes a point not to infringe on human rights when it acts, but does not have the capacity to protect and promote the realization of human rights when dealing with third parties. The gap between rhetoric and action in the EU’s commitment to human rights has become particularly apparent in the case of European migration policy in Libya, which highlights the lack of institutionalization of human rights and weakens the legitimacy of the EU’s status as an international normative power.  In the meantime, we will see if Juncker’s rhetoric about Libya turns into a more humanitarian policy towards Libya, but it is more likely that we will see a continuation of financial and military support for Libya.