Asylum Seekers, the responsible state and those pushbacks…

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In Australia, the asylum seeker story has somewhat abated in the media – for now. Many Australians remain intensely fearful of ‘Irregular Maritime Arrivals’, or asylum seekers who arrive by boat, and this will be played upon no doubt in this year’s election.  Yet, in our fear we are not alone.  I point anyone interested in the suggested ‘logic’ of boat pushbacks to a fascinating account of the Libya-Italy Pushback agreement in December 2012 issue of International Journal of Refugee Law.  In this article, Mariagiulia Giuffré, gives an account of the last twelve years of pushback activities, between Libya and Italy, of vessels carrying African migrants – including asylum seekers.

In 2000, the Italian government signed a Memorandum of Understanding with the then Muammar al-Gaddafi led Libyan government to interdict any ‘irregular migrant’ passage over their shared maritime zone.  The passage of 1000s per month arriving in Lampedusa, a Sicilian island at the bottom of Italy and not far from North Africa coastline, continued.  As years passed, new agreements were forged with the culmination of the Treaty on Friendship, Partnership, and Cooperation (Partnership Treaty) in Tripoli in 30 August 2008.  Attached to this Treaty – but of course separate to the pushback scheme – was a large compensation package offered by Italy ($5 billion in compensation to Libyan government for Italy’s past colonial crimes); with assistance for building of holding centres for those forcibly returned from Lampedusa (most vessels received were from Africa), training for Libyan authorities, vessels provided to Libyan authorities to forcibly intercept and return boats from Italy’s shores.  Libya agreed to take back the African ‘irregular migrants’ that Italy returned to Libya, pending their deportation to country of origin. This often meant forcible return, separation of families during transit and there was ‘no way of knowing’, as one of the operators stated in 2010, ‘whether the right to request asylum as well as other human rights are being respected in Libya’.  Italy signed this agreement, and the EU assisted with financial packages for these agreements over the 2000-2010 period, though Libya was not a signatory of the 1951 Convention Relating to Status of Refugees or its 1967 Protocol.

This agreement had the sole aim of preventing the ‘illegal’ passage of African migrants – whether asylum seekers or labour migrants – to Italy and the European Union’s refugee protection and laws.

Was it humanitarian? No. Libya had no refugee processing procedures in place, was not expected to, and was itself a brutal regime.  The international community largely applauded its downfall in 2011.  There is no doubt, as Giuffré argues, that during these years of the Agreement acts of refoulement occurred.  The international law pertaining to non-refoulement holds that states must not return people to any situation whether their lives may be at risk of torture or death.  This could not be guaranteed under the transfer agreement.  The European Union raised such concerns after the first wave of pushbacks in 2009.  In a 2012 judgement on Italy’s pushback of asylum seekers, the European Court of Human Rights heard that “Italian authorities, in full knowledge of the facts, exposed intercepted refugees to inhuman and degrading treatments by removing them to Libya” where they had no protection guarantees against refoulement. Italy did not uphold its humanitarian obligations as a European Union member when it assisted Libyan authorities nor did it act a responsible member of international society.

If short of the humanitarian mark, did the Pushback agreement achieve its aim?  Were there fewer arrivals on Lampedusa?  If you go to UNHCR site, and scan the statistics on Italy’s arrivals during the past decade (particularly 2002-2006 statistics) you see peaks and troughs that may or may not correspond with events in Italy and be more reflective of the situations in Somalia, Ethiopia, Kenya, Uganda, Sudan and so on.  The arrivals reached intense proportions by 2007. From 2008, the border controls grew harsher, with the introduction of the Agreement, with the pushback of all vessels and forcible returns to Libya.  There were reductions in arrivals during this period.  Then political events in Libya and Tunisia unfolded and these controls crumbled in 2011.

Success depended upon the agreements between Italy and Libya becoming more punitive and Italy’s reliance upon the means that Libyan authorities used to control arrival flows (similar to Spain’s third-country processing relationship with Algeria and Tunisia).  Many Australians and politicians may, unfortunately, care more about whether this pact worked than whether it was humanitarian.  Perhaps, but what the 2011 events in Lampedusa reveal is that brutal crackdowns may work in the short term but not in the long term; nor did these controls assist create any capacity to handle those dramatic, often tragic, peaks during 2011 and 2012.

Italy’s revised agreement with the new Libyan administration will be just as vulnerable for two reasons.  First, the events that unfolded – and are still unfolding – in North Africa reveal that the governments serving as ‘transit’ holding centres for developed countries like Italy and Spain are less likely to be stable democracies that are willing to bear the burden of their neighbours across the water.  If Australians take this message home, we should be concerned with any notion that Indonesia should be expected to bear our responsibility for asylum seekers through compensation or coercion (as was the case with Italy-Libya relationship).  Indonesia is in the throes of becoming a promising democracy, is fighting internal corruption, coming to grips with governing through decentralisation a 13 000 island archipelago, and undergoing dramatic economic transformation. If any burden sharing is to occur between Indonesia and Australia it must be on equal terms, which means that terms such as ‘pushback’ and ‘compensation’ should be avoided.

Second, though it appears that humanitarian arguments fall on deaf ears in Australia when it comes to asylum seekers, it needs to be understood that desperate people will always seek refuge through any means available.  Nations can provide the structure to accommodate these peaks and troughs or they can literally pour their money into the water trying to keep back something that is beyond their control.  When Tunisia and then Libya succumbed to internal turmoil, Italy was forced to play host to over 50,000 migrants in Lampedusa almost overnight.  The boats did not stop from day to night. People were desperate to get out.  Forcible pushbacks at this point are not only logistically impossible, they dangerous, immoral and the opposite of what humanitarianism dictate in such circumstances.

Too often asylum seekers have been defined as ‘illegal migrants’ that weaken borders and threaten social cohesion.  But let’s look at this rationally – asylum seekers are screened for health and security risks and not released into society until they are deemed safe.  In other words, the alignment of asylum seekers with security language has been an ill-conceived notion of what security threats are and how governments may best manage them.  Like Italy, Australia is at great risk of confusing the two, spending a lot of money on policies that will not resolve the problems that give rise to asylum seeking in the first place.

What this outstanding article in International Journal of Refugee Law demonstrates is that the agreement between Italy and Libya ultimately failed in practice because it was of mutual convenience for two states consumed by hubris and not by their responsibility to protect populations from harm. Their agreements, protocols and ‘aid packages’ crumbled in 2011 precisely because they were not inspired primarily by humanitarian considerations.

Sara Davies, Human Protection Hub