DRAFT – Please do not quote without permission. For comments please contact the author: paolorw@hotmail.com THE ITALIAN JOB: PLAYING THE COMPLICITY GAME IN LIBYA PAOLO BIONDI SCHOOL OF ADVANCED STUDY, UNIVERSITY OF LONDON 1. INTRODUCTION This brief legal note argues and demonstrates how the Italy-Libya engagement in 2017 to stem the migrant flows to the EU falls in a grey zone between the legal and the illegal. By explaining the different approaches that have been adopted by the two countries, the note argues that they are – to a certain extent – acting in a legal area on which there is not much judicial precedent. However, the evolutionary interpretation and application of the relevant legal doctrine leads to the conclusion that Italy can be considered complicit in the Libyan wrongful acts, despite the lack of a directly applicable legal rule or a clear-cut precedent on the extraterritorial application of the ECHR to an EU Member State’s acts of facilitation of internationally wrongful acts committed by another State. Despite these acts can be generally defined as “contactless”,1 they nevertheless can create international responsibility. 2. THE HIRSI PRECEDENT The most important judicial precedent in this field without any doubt is the Hirsi Jamaa and Others v. Italy case where Italy was condemned in 2012 by the ECtHR (European Court of Human Rights) for violating Article 3 ECHR and 33(1) of the 1951 Geneva Convention.2 These two articles are complementary even though they are from two different instruments. The ECHR is a human rights instrument while the 1951 Geneva Convention (GC) is part of the International Refugee Law. The European Court of Human Rights in the case of Chahal v. the United Kingdom,3 held that the "protection afforded by Article 3 is ... wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees".4 The most generous protection against refoulement from Europe lies in the development of the ECtHR case law, in particular concerning proceedings based on Article 3 ECHR, even when compared to the protection offered by the 1984 Convention against Torture and the 1966 Covenant on Civil and Political Rights.5 However, in M.S.S. v. 1 For a detailed analysis see Violeta Moreno-Lax and and Mariagiulia Giuffré, ‘The Raise of Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration Flows’ in S. Juss (ed.), Research Handbook on International Refugee Law (Edward Elgar, Forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009331> accessed 9 September. 2 Hirsi Jamaa and Others v. Italy, Application no. 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012, available at: http://www.refworld.org/cases,ECHR,4f4507942.html [accessed 5 September 2017]. 3 ECtHR Chahal v the United Kingdom Application No. 22414/93 of 15 November 1996. 4 Hélène Lambert, ‘Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue’ (1999) The International and Comparative Law Quarterly, Vol. 48, No. 3, 515-544, p. 515. 5 Ibid, 516. Belgium and Greece the ECtHR pointed to the fact that protection under Article 3 ECHR6 is complementary to Article 337 of the 1951 Geneva Convention.8 Hirsi was a landmark case because it established for the first time the applicability of the ECHR outside the immediate State’s jurisdiction (on the high sea). More specifically, it established that States cannot turn back people (push-back) towards a country where they may be subjected to torture or inhuman and degrading treatment. That includes pushing back people in international waters because that still represents an exercise of de jure and\or de facto jurisdiction, even if outside the territory of a State. After the Hirsi case, Italy and the EU (Frontex) have been subject to substantial limitations when they intercept boats in international waters, so it is possible that they are trying to find alternative ways around the law stretching it a bit or testing its limits, as well as the limits of the bodies responsible to enforce the compliance with the law. This note considers the legitimacy of these alternative approaches. Italy’s fear of the ECtHR after the Hirsi case is the reason why Italy started but then gave up on the idea of acting in international waters in front of Libya with its own navy, as that would be a clear case of violation of Article 3 ECHR and 33(1) 1951 GC (like in Hirsi). It can be said that in those circumstances, in general a State should refrain from acts and omissions which have the foreseeable consequence of exposing individuals to the serious risk of treatment contrary to Article 3 ECHR or other relevant prohibited conducts.9 Even if the act of returning takes place at the immediate borders it can be considered refoulement (return), as the push-back applies also at immediate territorial borders. 3. ACTING IN THE FOREIGN STATE JURISDICTION WITH CONSENT Once the option of acting in international waters in front of Libya had been excluded or exhausted for the risk of being reported to the ECtHR, the Italians decided that a reasonable alternative (or additional option) would be to ask the Libyans for permission to act with the Italian navy in Libyan territorial waters and start pushing back from there. 10 In that case Italy would no more be acting in international waters but in Libyan waters. 6 Article 3 ECHR, Prohibition of torture. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. 7 Article 33(1) 1951 Geneva Convention, Prohibition of Expulsion or Return (“Refoulement”). “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. 8 ECtHR, M.S.S. v. Belgium and Greece 55-56, 332. See also ECtHR, Hirsi Jamaa and Others v. Italy [GC], Application No. 27765/09, (Concurring Opinion of Judge Pinto de Albuquerque), pp. 61, 63, 64, 65, 66. 9 Guy Goodwin-Gill, ‘Opinion: The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ International Journal of Refugee Law Vol. 23 No. 3 pp. 443–457. 10 Reuters, ‘Italy begins naval mission to help Libya curb migrant flows’ (2 August 2017) < https://www.reuters.com/article/us-europe-migrants-italy-libya/italy-begins-naval-mission-to-help-libya-curbmigrant-flows-idUSKBN1AI1JC> accessed 9 September 2017. 2 However, from a legal perspective that does not change anything. That would be still a push-back even though a clear precedent (case before the ECtHR court) of this kind does not exist yet. Despite Italy acts at the immediate border of the Libyan territorial waters or, in other words, within the territorial border, that is violation of Article 33(1) GC and 3 ECHR. If Italy acts in Libyan territorial waters, Italy is violating Article 13(2) of the Universal Declaration of Human Rights (UDHR),11 Article 2(2) of the Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the first Protocol12 and/or Article 14(1) UDHR13 and 18 of the Charter of Fundamental Rights (CFR).14 However, since the denial of the right to leave and to seek asylum elsewhere would result in the turn back to the Libya coast – and eventually through chain refoulement to the country of origin – it could be said that Italy is also violating Article 3 ECHR (and eventually Art 33(1) 1951 Geneva Convention). Despite the nonrefoulement principle requires the asylum seeker to be outside or at the border of the territory of the State where the person risk to be subject to violation of human rights, it is a consequence-defined act. Article 33(1) of the 1951 Geneva Convention specifies, the return cannot take place “in any manner whatsoever”. In fact, interpreting the non-refoulement principle differently, would lead to its guarantees being neither practical or effective.15 That would render both the 1951 Geneva Convention and the ECHR outdated instruments rather than being living instruments that must ‘be interpreted in the light of present-day conditions’16 and the evolutionary interpretation. This conclusion can be reached by applying previous jurisprudence of the ECtHR by analogy: hence by using an evolutionary interpretation of the law. The deployment of the Italian navy to Libyan waters to stop departures would be an exercise of de jure pre-agreed jurisdiction, therefore illegal. This argument is based on another decision of the ECtHR (Bancovik v. Belgium)17 from 2001. In that case the ECtHR clarified that the effective control of a relevant territory abroad as a consequence of consent, invitation or acquiescence of the government of that territory is an exercise of jurisdiction. So if Italy – with Libyan invitation or acquiescence – enters its territorial waters and prevents migrants from leaving and continuing the journey and turns them back to the Libyan coast, it is exercising an effective jurisdiction which may result in push-backs for which Italy can be liable. 11 Article 13(2) of the Universal Declaration of Human Rights. “Everyone has the right to leave any country, including his own, and to return to his country”. 12 Article 2(2) 4th Additional Protocol to ECHR. “Everyone shall be free to leave any country, including his own”. 13 Article 14(1) UDHR. “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. 14 Article 18 CFR, Right to asylum. “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union […]”. 15 ECtHR, Soering v. The United Kingdom, Appl. no. 14038/88, Judgment of 7 July 1989, para. 87. 16 See ECtHR, Tyrer v. The United Kingdom, Appl. no. 5856/72, Judgment of 25 April 1978: ECtHR, Soering, para. 102. 17 ECtHR, Bankovic and Others v. Belgium and Others, Application No. 52207/99 of 19 December 2001, para. 71. 3 4. THE OLD/NEW STRATEGY: FACILITATION OF WRONGFUL ACTS ABROAD The Italians became fast aware they were risking to be reported to the ECtHR with all those NGOs ships off the coast of Libya reporting about their activities. For NGOs it would have been really easy to find a person pushed back or turned back, collect witness statements and file a case to the ECtHR. So Italy decided to totally shift strategy. Italy decided to ask the Libyans to do the dirty job for them instead. This is a new old strategy as it has been used already in 2011 with Gaddafi, but it has not been fully implemented because of the Arab Spring. By outsourcing push-backs and turn-backs to Libya, Italy cannot be considered directly responsible, and collecting proof for the ECtHR in such circumstances is a lot more difficult if the Libyans keep NGOs at bay from their coast (imposition of the 70 nautical miles distance and illegal exclusive SAR zone) by shooting at the boats not complying. However, it can be argued that Italy can be still considered facilitating Libya’s illicit acts. In order to understand how Italy can be accused of facilitation and/or other forms of complicity, it is necessary to analyse the main Libyan wrongful acts, but before doing so, it is important to set out the general principle applicable to complicity. For what concerns the ECHR, Italy can be considered facilitating the Libyan wrongful acts of ill-treatment and torture because in Soering the ECtHR made clear that it is not the act of returning (turning back) per se that raises difficulties. So it is not only about the material exercise of jurisdiction somewhere. Article 3 ECHR includes also the foreseeable consequences of an act suffered outside the State’s de jure or de facto jurisdiction.18 In other words, even if Italy does not do anything materially but instead supports and facilitates Libya in performing such activity, it can be still liable. In particular, when Italy supplied technical support to Libya by providing training and boats, it violated Article 3 ECHR because the Italian contribution to the Libyan wrongful acts became significant. In fact, before the provision of such support the Libyan Coast Guard was neither interested or able to turn back the boats. Italy contributed to the Libyan acts of torture and inhuman and degrading treatment which is forbidden under the ECHR. So Italy allegedly committed a violation under the ECHR. Article 3 ECHR comes into play because of the foreseeable negative consequences of supplying technical support or equipment, even outside the Italian direct jurisdiction. However, when Italy advises the Libyan Coast Guard on the location of a vessel to be intercepted, as it happened on 10 May 2017, it may have generated even more clearly international responsibility as this contribution have played a further and more significant part in the commission of the 18 ECtHR, Soering, para. 86. 4 wrongful act of return.19 In fact, “the Rome Maritime Rescue Coordination Centre directed the Libyan coastguard to assume “on-scene command.”20 The result of this was the return of the migrants to Libya instead of being embarked by the Sea-Watch NGO and possibly brought to safety to Italy. “While this was perhaps not technically a “push-back” operation, the effect is the same. The orders issued by the Rome Maritime Rescue Coordination Centre determined where the intercepted/migrants would be taken. The interception may have also taken place with the Libyan vessel that has been one of coastguard vessels recently donated by Italy and whose personnel have been trained by the EUNAVFOR MED operation.”21 If it will be demonstrated that any individual of the 500 people returned to Libya has been subject to ill-treatment in a detention centre, to a risk of chain refoulement or eventually returned to the country of origin and subject to persecution, the Italian liability will be beyond dispute. When the facilitation contributes significantly to the Libyan wrongdoing, it extends the jurisdictional effects of Italy’s extraterritorial acts under the ECHR to the foreseeable consequences that the act provokes outside Italy’s jurisdiction (on the high sea or in Libya). Article 3 ECHR violation for Italy arises because the EU Member States may not under the ECHR commit or facilitate human rights violations abroad that they may not commit at home.22 It is a preventive negative obligation because it arises where there is a foreseeable real risk that the support might contribute to the principal wrong occurring. There are five reasons why this approach to the interpretation of the law is valid. First, because the protection under the ECHR must be practical and effective. Second, because the prohibition under Article 3 ECHR is absolute. Third, because such obligation is part of the international customary human rights law (for instance CAT Convention). So there is a similar obligation in international law beyond the ECHR. Overcoming the jurisdictional gap renders states’ obligations under the ECHR consistent with their other international 19 Guy Goodwin-Gill, ‘Opinion: The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ International Journal of Refugee Law Vol. 23 No. 3 pp. 443–457, at pag. 453; Migrants at Sea, ‘Libyan Coastguard Vessel – in Coordination with Italian SAR Authority – Intercepts Migrant Boat in International Waters and Returns 500 Migrants to Libya; de facto Push-Back’ (11 May 2017) <https://migrantsatsea.org/2017/05/11/libyan-coastguardvessel-in-coordination-with-italian-sar-authority-intercepts-migrant-boat-in-international-waters-and-returns-500migrants-to-libya-de-facto-push-back/> accessed 8 September 2017; Reuters, ‘Libyan coastguard turns back nearly 500 migrants after altercation with NGO ship’ (10 May 2017) <http://www.reuters.com/article/us-europe-migrantslibya/libyan-coastguard-turns-back-nearly-500-migrants-after-altercation-with-ngo-ship-idUSKBN1862Q2> accessed 9 September 2017. For a comprehensive on the case see Jean-Pierre Gauci, ‘Back to Old Tricks? Italian Responsibility for Returning People to Libya’ (EJIL Talk!, 6 June 2017) <https://www.ejiltalk.org/back-to-old-tricks-italianresponsibility-for-returning-people-to-libya/> accessed 18 October 2017. 20 Migrants at Sea n (19). 21 Ibid. 22 “An aiding or assisting State may not deliberately procure the breach by another State of an obligation by which both States are bound: a State cannot do by another what it cannot do by itself. Commentary 6 to Article 16 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, text adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/56/10). The report, which also contains commentaries on the draft articles, appears in the Yearbook of the International Law Commission, 2001, vol. II, Part Two, as corrected. < http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>. 5 obligations. The fourth reason is that, as Soering clarified, States are also responsible for the ‘foreseeable consequences of return suffered outside their jurisdiction.’23 So it is not relevant that the Article 3 ECHR violation would, in reality, be committed by a foreign State. The rule demands that States take responsibility for foreseeable wrongdoing they facilitate. This rationale is equally applicable in cases of extraterritorial complicity. The last reason is that there has been a growing realization that the Banković case – strictly applied – would have given rise to absurd results. In other words, that Member States signatory to the ECHR would have been able to commit human rights violations abroad that they may not commit at home.24 So subsequent interpretations by ECtHR in several cases brought along a correction to the concept of jurisdiction and liability, in particular to the territorial and personal model.25 It is important to focus on the ECHR in this case because the ECHR establishes a robust system of individual petitions allied with reasonably consistent remedial compliance contrary to the CAT for instance.26 Moreover, the ECtHR in Hirsi clarified that any “action ‘the effect of which is to prevent migrants from reaching the borders of the [would-be host] State’ may trigger the action of the European Convention on Human Rights (ECHR) and related instruments”.27 In regard to the treatment relevant for the engagement of Article 3 ECHR, Italy has knowledge of the general situation and violations taking place on the Libyan territory. As it has been proved in M.S.S,28 having the knowledge (or the means to avoid it) and still performing an act that can foreseeably result in violation of Article 3 ECHR, even if one acts as the hand of another States, is a violation of the negative obligation under Article 3 ECHR. This approach, however, demonstrates also that there are positive and preventive obligations intrinsic in the non-refoulement principle. Member States have the positive obligation to be aware of the conditions prevailing in Libya and how the situation of the applicant might evolve after his/her return to Libya or when the person is forced to stay in the Libyan detention centres, thus in a situation of foreseeable risk.29 Including treatment contrary to Article 3 ECHR in Libya or in the country of origin where the person might be returned through chain refoulement as Libya is not signatory to the 1951 Geneva Convention. 23 ECtHR, Soering, para. 86. Cf. See also ECtHR, N. v. UK, Appl. no. 26565/05, Judgment of 27 May 2008. ECtHR, Bankovic and Others v. Belgium and Others, Application No. 52207/99 of 19 December 2001, para. 80. 25 See ECtHR, Issa and others v. Turkey, Application. No. 31821/96 of 16 November 2004; ECtHR, Ocalan v. Turkey, Application. No. 46221/99 of 12 May 2005; ECtHR, Medvedyev and others v. France, Application. No. 3394/03 of 29 March 2010; ECtHR, Al-Skeini and others v. The United Kingdom, Application. No. 55721/07 of 7 July 2011; ECtHR, Jaloud v. The Netherlands, Application. No. 47708/08 of of 20 November 2014. 26 For a detailed analysis See Miles Jackson, ‘Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction’ (2016) European Journal of International Law, Vol. 27 no. 3. 27 ECtHR, Hirsi v. Italy, Appl. 27765/09, 23 Feb. 2012, para 180. 28 ECtHR, M.S.S. paras. 358, 366. 29 See, CJEU AG Opinion in Case C-638/16 PPU X. and X. v. État Belge of 7 February 2017; Paolo Biondi, ‘The Emergence of the Entry Human Rights Principle. Looking Beyond the X.X. Case’ (EDAL, 6 April 2017) <http://www.asylumlawdatabase.eu/en/journal/emergence-entry-human-rights-principle-looking-beyond-xx-case> accessed 3 August 2017; As the ECtHR noted in M.S.S., ‘[t]he fact that...the applicant had been trying to leave Greece [irregularly] [could not] be held against him’. This was considered to be so, in particular, because ‘the applicant was attempting to find a solution to a situation the Court considere[d] contrary to Article 3 [ECHR]’. ECtHR, M.S.S. v. Belgium and Greece, Appl. 30696/09, 21 Jan. 2011, para. 315. ‘the applicant was attempting to find a solution to a situation the Court considere[d] contrary to Article 3 [ECHR]’113 24 6 5. COMPLICITY UNDER THE ARISWA For what concerns Libya’s specific violation of international law – for which Italy can be liable as it is supplying boats and technical support – Libya can be accused of violating different international conventions and treaties and depending on where it acts – in international waters or its own territory. Italy’s responsibility and complicity for the Libyan wrongful acts arises in this case under Article 16 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)30 in conjunction with violation occurring under both the ECHR and other conventions, such as the CAT (UN Convention Against Torture). Article 16 ARSIWA - Aid or assistance in the commission of an internationally wrongful act A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; (b) and the act would be internationally wrongful if committed by that State.31 When Libya acts in international waters and turns back people to its own territory, Libya is violating Article 33(1) of the 1951 Geneva Convention and Article 3(1) CAT32 (Italy is complicit for facilitating). In fact, Libya returns migrants to its own territory where they are subject to torture, so it is a violation of Article 33(1) Geneva Convention and Art. 2(1) CAT33 (Italy liable for facilitating and Libya for committing). Italy is complicit under the 1951 Geneva Convention and the CAT because its assistance or facilitation (supplying ships and technical support) contributes significantly34 to the Libyan wrongdoing under Article 2(1) CAT. Italy’s complicity derives from Article 16 ARISWA. For what concerns the non-refoulement principle, it is important to stress that it is a norm of customary international law. This means that despite the fact that Libya is not a signatory to the 1951 Convention, in light of the absolute nature, it applies also to Libya. Libya is violating Article 33(1) by acting in international waters and turning back, escorting back and preventing the continuation of the asylum seekers’ journey. All these actions constitute the exercise of jurisdiction outside its territory and require international human and refugee 30 Article 16 of the Draft articles on Responsibility of States for Internationally Wrongful Acts. “Article 16 limits the scope of responsibility for aid or assistance in three ways. First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; and thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting State itself”. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, comment 3 to Article 16. 32 Article 3(1) CAT. “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. 33 Article 2(1) CAT. “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. 34 “There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act”. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, comment 5 to Article 16. 31 7 rights to be upheld. The non-refoulement principle as stipulated in Article 33(1) applies to the return of a person to “the frontiers of territories” without specifying that the return must take place to the territory of another State (unlike in Art. 3 CAT). So Article 33(1) may apply also in the case where Libya is returning people from international waters to its own territory. Article 3 ECHR and Article 33(1) GC in the EU context are complementary, so in specific cases the violation of one is considered also the violation of the other. So Italy is in breach of both Article 3 ECHR and Article 33(1) GC by being complicit with Libya. The only difference in the case of return by Libya in international waters between violation of Article 3 ECHR and 33 GC, is that the former applies to Italy by way of the extraterritoriality of the ECHR. So Italy is responsible because its assistance or facilitation contributes significantly to the Libyan own wrongdoing under the CAT (Art. 2(1)), but this main wrongful act extends the jurisdictional effects of Italy’s extraterritorial acts of facilitation under the ECHR. So it is enough that the acts are considered wrongful only for Italy under the ECHR and not Libya too, as the ECHR does not apply to Libya. Libya on its side is responsible for the main wrongdoing under Article 2(1) CAT, which forbids torture as well. Instead, Italy’s complicity under Article 33 GC derives from the complicity principle under Article 16 ARSIWA. This applies only in the situation where one State provides aid or assistance to another with a view to facilitating the commission of an internationally wrongful act, which is both wrongful for the State facilitating (Italy) and committing the main wrongful act (Libya) under the same international instrument. In this sense both Italy and Libya are signatories to the CAT and Article 33 GC applies to both in view of its customary nature. Article 16 ARISWA, differently from the facilitation and the extraterritorial responsibility under the ECHR, establishes complicity for both States under the same instrument. The only difference in this case is that both countries must be signatories of the same legal instrument, which in this case is the GC (Art. 33 applies to Libya because of its customary nature) and the CAT. This argument does not apply to the ECHR because Libya is not signatory, so only Italy is responsible under the ECHR. When Libya acts in its territorial waters, by preventing people from continuing their journey and turning them back, Libya is acting in such a way as to prevent people from seeking asylum elsewhere, so it violates Article 13(2) UDHR (right to leave a country) and 14(1) UDHR (right to seek asylum) However, these acts have an added effect. The interceptions in the end result in the violation of Article 2(1) CAT because there is evidence that people who cannot leave the country and are returned and kept in detention for long periods without the possibility to challenge their detention and they are subjected to torture or inhuman and degrading treatment. On the basis of the same actions, under Article 16 ARSIWA, Italy is complicit because it supplies technical support and equipment to facilitate the return of the migrants at sea. While Italy is complicit in violation of Articles 13(2) UDHR, 14(1) UDHR, 2(1) CAT, Italy is also directly responsible 8 for facilitating the violation of Article 3 ECHR, as the final outcome of all those violations is the inhuman and degrading treatment of the people turned back or prevented from departing. 6. FACILITATION AND COMPLICITY FOR THE ONSHORE ACTIVITIES The last case that must be considered is the outsourcing of migrants’ detention on land. In this case there is substantial evidence that Italy is financing Libyan militias to stem the migrants’ flows.35 Information is also available – from UN reports36 and MSF37 – on the extent of the militias’ crimes on migrants. So Italy is financing activities in the Libyan detention centres with knowledge of the wrongful acts committed. Italy is financing knowingly activities that, despite being on the territory of another state, expose people to treatment contrary to Art. 3 ECHR. Italy has also a clear wrongful intent, which is that of blocking people from departing from Libya, in violation of Art. 13(2) UDHR and Art. 2(2) of the 4th Additional Protocol to ECHR. However, the violation of Art. 13(2) and 2(2) has also the effect of exposing people to a foreseeable risk of torture, contrary to absolute prohibition under Art. 3 ECHR. So by facilitating the militias’ wrongful acts onshore, Italy is responsible for the material effects of its own extraterritorial acts, falling under the ECtHR jurisdiction. While from the above analysis it could be assumed that Italy and Libya have been engaging in these acts separately in time, they seem to have been carrying out these activities all at the same time way before May 2017 when the migration flows to Italy actually decreased. For a better result it is always more appropriate to put in place several measures so as to achieve the result of stemming the flows faster. The off-shore manoeuvers have been accompanied at the same time by onshore activities to achieve the result of stemming the flows faster. Italy and Libya agreed on their deals way before May 2017 when arrivals decreased. Following the agreement, however, migrant abuse is linked more to onshore interception rather than off-shore. That is why off-shore interceptions have gone down in May 2017 even though the reported abuses onshore have gone up. More work is being done onshore in the detention centres and at the southern Libyan borders, therefore less interceptions off-shore are needed by the Italians and Libyans. The increase in the onshore activities is the reason that made access to the coast and departures very challenging for migrants. Italy now prefers to finance detention centres far from the public scrutiny, so that 35 The Washington Post, ‘Backed by Italy, Libya enlists militias to stop migrants’ (29 August 2017) < https://www.washingtonpost.com/world/middle_east/backed-by-italy-libya-enlists-militias-to-stopmigrants/2017/08/29/26016b3c-8ca2-11e7-9c53-6a169beb0953_story.html?utm_term=.00556e038aae> ; The Times, ‘Libyan militia chief admits deal with Tripoli to stem migrant flow’ (September 2017) < https://www.thetimes.co.uk/article/libyan-militia-chief-admits-deal-with-tripoli-to-stem-migrant-flow-ahmeddabbashi-brigade-migrant-crisis-italy-538lwtgf5>. 36 Final report of the Panel of Experts on Libya established pursuant to resolution 1973 (2011) (S/2017/466) [EN/AR] < http://reliefweb.int/report/libya/final-report-panel-experts-libya-established-pursuant-resolution-1973-2011s2017466>. 37 MSF, ‘Human Suffering. Inside Libya’s Migrant Detention Centres’ (1 September 2017) < https://msf.exposure.co/human-suffering>. 9 fewer people reach the Libyan coast. Those that make it to the coast, do not find many active smugglers. Now the majority of smugglers are cooperating with GOL (government of Libya), and the latter has an informal agreement with Italy to stop activities for a while. This is consistent with the above-mentioned UN report which describes the GOL cooperation with smugglers and describes the detention centres’ activities. It is also consistent with this recent Reuters article which suggests that armed groups in the West of Libya are stopping boats from departing.38 An article published recently on La Stampa39 website claims that now smugglers arrive to Italy in smaller groups with safer boats (not usual GOL smugglers that rely on NGOs to disembark, but smugglers that use wooden boats). This means that some smugglers – not under the control of the Libyan authorities cooperating with Italy – found a way around the Libyan blockade. The result is that there are fewer arrivals far from NGO sight, far from old routes and excluded from official Frontex statistics. Now Italy is less likely to be accused of refoulement or Libya of push-back in international waters. Some NGOs (MOAS) decided recently to interrupt their activities off the Libyan coast as a result of the threats from the LCG despite the fact that Libya cannot declare its SAR zone exclusive. The MOAS decision was, in certain way, very wise. NGOs operating in the Libyan SAR zone or close to the latter may be requested at any given moment by the The Rome Maritime Rescue Coordination Centre or by the LCG (forcibly) to disembark in Libya. Will ever a situation of this kind occur, NGOs may become unwillingly complicit in the violation of international law. The migration lull will last as long as Italy/EU will finance Libya or that the Libyan authorities will have control over the smugglers. It is possible that the EU is negotiating a large pay-off similar to Turkey, while Italy will continue to provide financial resources on a bilateral basis. 7. CONCLUSION The most important legal aspect is the implication of the mix of off-shore and onshore activities in regard to Art. 13.2 and 14.1 UDHR, Art. 2(2) Additional Protocol to ECHR, 18 CFR and Art. 3 CAT and ECHR. The focus should remain on the impact of the Libyan off-shore activities financed by Italy – as the transfer has been approved with a legislative act in the Italian Parliament – but also on the onshore violation of human rights. Both the off-shore and onshore activities must be considered in light of the risk of chain and constructive refoulement. In this sense, it is important for all actors to continue reporting on the treatment of refugees and asylum seekers in Libya, focusing on the risk of refoulement by the Libyan authorities to the countries of origin. So the reports must focus on the risk to which the potential applicants for international protection and 38 Reuters, ‘Armed group stopping migrant boats leaving Libya’(21 August 2017) <http://news.trust.org/item/2017082116241479gn2/?cid=social_20170821_73732857&adbid=899674717136723968&adbpl=tw&adbpr=15762575>. 39 La Stampa, ‘Il mare della Libia svuotato dalle navi delle Ong. Nuove rotte verso la Sicilia’ (18 August 2017) < http://www.lastampa.it/2017/08/18/italia/cronache/il-mare-della-libia-svuotato-dalle-navi-delle-ong-nuove-rotte-versola-sicilia-i7BQmuVnCb4usAsFMb5SvJ/pagina.html>. 10 persons similarly situated can be exposed in their country of origin, and the evidence of practice in Italy granting protection in such cases.40 As a way to draw a conclusion to this brief legal note, as the ECtHR held in the M.S.S. case, it is foremost important that States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum seekers of the protection afforded by the 1951 Geneva Convention and the European Convention on Human Rights.41 We must protect the effectiveness of the right to seek asylum in a safe country where the dignity of a person is respected, despite the ever more ingenious ways of some States to try to undermine the effectiveness of the right to seek asylum. 40 See for reference M.S.S. v. Belgium and Greece, Application no. 30696/09, Grand Chamber, 21 Jan. 2011, paras. 196203, 295-296 and 314. 41 See M.S.S. v. Belgium and Greece, para. 216. 11