Front-Lex and Refugees in Libya, two organizations which work to defend international humanitarian law and protect migrants, have filed a lawsuit against Frontex before the Court of Justice of the European Union (ECJ) for “failure to its obligations”. Its aim is for the European external border control agency to stop establishing communications with the Libyan coast guard which intercepts migrant boats and sends them back to Libya, where they risk becoming victims of crimes against humanity.
The trial was possible thanks to the testimony of Omer (pseudonym), a 29-year-old young man born in Darfur, Sudan, who has lived in Libya since 2019, hiding in a “ghetto” and barely leaving his home. so as not to be another victim of the abuses that are perpetuated in this country against the migrant population. “Migrants [en Libia] “They find themselves in a much worse situation: sexual slavery, torture, forced labor and mistreatment, both when they enter Libya, when they leave it and when they return,” explained Chaloka Beyani, an expert on the UN mission, in an interview with elDiario.es on Libya.
Omer is just one of 400,000 asylum seekers who have fled Sudan and are stuck in Libya, but his case once again calls into question Europe’s system of border protection and migration control.
A few months ago, he was diagnosed with diabetes. Unable to afford treatment and find discreet, supportive clinics for asylum seekers in Libya, Omer does not receive adequate treatment for his illness. But this is only one of the additional difficulties. “Our concern is not to die at sea,” says one of the migrants who passed through three detention centers in Libya and whose testimony appears in the trial presented by the two NGOs. “Our concern is to return to prison where we will be oppressed and tortured. » The fear of being returned to Libya is also Omer’s main concern, as this applicant assured his lawyer on May 31. Omer has the imminent intention of crossing the Mediterranean safely, but to do so he must ensure that Frontex will not be there to bring him back from wherever he is fleeing.
When a person arrives in Libya with fear of persecution in their home country, they risk being arbitrarily detained in detention centers, according to an independent investigation by the UN Human Rights Council . Omer avoids at all costs leaving his refuge and any control that the militias could exert in the city. However, after his illness was diagnosed, he was forced to leave his home more frequently, increasing the risk of being intercepted by militia checkpoints.
Manipulation of Frontex
In the first half of 2024, according to the International Organization for Migration, 9,578 migrants were returned to Libya, although this violates the international principle of non-refoulement of people fleeing persecution and crimes against humanity. Although Libya is not a signatory to the 1951 Refugee Convention, European countries are, meaning they are required to comply with this obligation.
Using documentation provided by Sea-Watch, the lawsuit presents clear evidence of Libya’s coast guard mistreatment of asylum seeker boats.
On July 10, the Doctors Without Borders mission, responsible for a rescue operation, observed how the state-funded Libyan Stability Support Authority (SSA) militia endangered the lives of 87 people. The images compiled in the trial’s annexes bear witness to the panic that spread among the migrants, so much so that many chose to jump from the boat.
Less than a month ago, on September 21, the Seabird – one of the aerial reconnaissance planes used by the NGO – saw the Libyan coast guard fire on a migrant boat.
“Without Frontex’s surveillance capabilities, the Libyans cannot detect refugee boats in the SAR zone. [Search and Rescue, búsqueda y rescate en inglés]. They are therefore entirely dependent on Frontex, Italy and Malta to provide them with the location of refugee boats in the SAR zone,” explains lawyer Iftach Cohen of Front-Lex.
In August 2020, a boat carrying around 30 people was near Maltese and Italian waters. As Sea-Watch observed, the vessel was in a “distress” situation, implying the need for an imminent rescue to save the lives of those on board. The same organization informed the Maltese and Italian coast guards. But it was the Libyan coast guard that intercepted the ship, although by that time other rescue vessels from organizations such as Open Arms were in the central Mediterranean and available for rescue.
The Sea-Watch air service assured that before the interception, it had been able to observe Frontex planes flying over the same area. In no case did Frontex contact the NGOs operating in the area to carry out the rescue and prevent the forced return of migrants to Libya.
“Our tests show that when Frontex detects refugee ships outside European territorial waters, such as in the Libyan SAR zone, it automatically classifies them as ships in distress,” explains Cohen. This allows them, in accordance with international maritime law, to immediately transfer all information – including the exact location – to the competent rescue center.
Even though in the aforementioned case the crew of the boat was in danger, one of Frontex’s obligations is to prevent these people from returning to the places where they are tortured. In this sense, the accusation warns against the “manipulation” carried out by Frontex, given that it is the European institution that determines whether the ships are in danger or not. “We observe a trend where Frontex automatically classifies cases as ‘distress’ when they are outside European territorial waters and does the opposite when these vessels are detected in the SAR zone or in the territorial waters of a Member State “, denounces Cohen. “Frontex does not want to save lives, it just wants to prevent new arrivals on European territory,” underlines the lawyer. In this case, if Frontex had wanted to save the lives of these people and protect them against crimes and violations, he adds, it should have prevented their return to Libya.
Striking examples that are also included in the trial are the cases of Sinking of the Cutro (Italy)the worst sinking of a migrant boat off the Italian coast since 2013, in which 73 people died; or that of Pylos (Greece), of a boat with more than 700 people on board. None of these vessels – previously detected by Frontex – were classified as being in distress, so the Italian and Greek authorities were unable to launch a SAR operation. Consequently, the European Ombudsman criticized Frontex for not doing so, saying it was a “political decision”. If this had not been the case, the Italian and Greek coast guards would have had to act by authorizing the migrants to disembark on European soil.
Recently, on January 12, 2024, Hans Leijtens, CEO of Frontex, confirmed in writing to the Chairman of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) that around 2,200 emails were sent from Frontex to the center (RCC) of Libya, transmitting coordinates and other relevant information relating to vessels in a state of emergency in the search and rescue region of this North African country.
“Frontex’s position, in essence, is that it has only one legal obligation: to transmit all relevant information about a vessel in distress to the RCC,” explains Cohen. But it’s not the only one. Frontex has several legal obligations, including a ban on returning rescued people to places where they risk persecution or torture. This is a “legal obligation that arises from EU primary law and is constitutional in nature,” Cohen repeats.
Front-Lex and Refugees in Libya also denounce the cynicism of Frontex and its representatives. In April this year, Leijtens made the following statements to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE): “I wish I could stop this. If I had a ball, I would definitely use it. But I can only work within the legal framework available to me, as sad and disappointing as that may seem, also for me, if it is about saving lives.” And to conclude: “I recognize that we, as Frontex, do not want them to end up in Libya. »
This trial is the third to be presented to the Court of Justice of the European Union. The plaintiffs hope that this procedure will be successful and that, based on the evidence provided, Frontex will have a legal obligation to stop facilitating the location of refugees by the Libyan coast guard.
In a European context marked by strong hostility towards immigrants, the two organizations highlight the conditions of “murder, torture, rape and slavery” to which they are subjected in Libya. “Anyone who feels comfortable sending these refugees back to Libya today would have felt comfortable sending Jewish refugees back to the border of Nazi territory,” Cohen points out.
