Introduction

Throughout the years, the European Union has indirectly provided EU funds to Libya to enhance its capacity to contain migration flows across the Mediterranean Sea, through the provision of training, equipment, and support to Libyan border management authorities. It has allocated €465 million between 2015 and 2021 under the EU Trust Fund for Africa (EUTFA), an extra-budget instrument created in the aftermath of the so-called “refugee crisis”, and further committed €65 million under the Neighbourhood, Development and International Cooperation Instruments (NDICI-Global Europe) for the period 2021-2027 (see DG NEAR and Casajuana and Pinto 2023 for an overview). The EU channels money to Libya through Italy, which has concluded a Memorandum of Understanding (MoU) with the Libian authorities in 2017.

Since the start of cooperation, the provision of EU funds to Libya has been the object of heated criticism by authoritative human rights organizations (see, for instance, Amnesty International and Human Rights Watch, among others), as well as by the UN High Commissioner for Human Rights, due to serious concerns about the mistreatment of migrants by the Libyan Coast Guard and the poor conditions in the detention centers where intercepted migrants are usually taken. In 2023, the UN Independent Fact-Finding Mission on Libya (FFM) indicated to possess substantial evidence to believe that the EU and its Member States provided direct or indirect financial and technical support and equipment, such as boats, to Libyan authorites who colluded with militia groups committing ongoing and systematic inhumane acts against migrants in Libya, which could classify as crimes against humanity. Despite these voices raised against the situation, not only has the EU never taken any action to suspend cooperation with the Libyan authorities, but it has repeatedly justified its approach by stating that EU funding is provided to “save lives at sea” and that it comes with “specific trainings for human rights” and “third party monitoring”, going as far as claiming that there is lack of “evidence pointing to human rights violations” in EU-funded projects in Libya (see, for instance, recent answers to parliamentary questions here and here), despite plenty of reports showing the opposite.

However, a recent judgement of an Italian civil court, issued in July 2024, explicitly recognized that the Libyan Coast Guard cannot perform search and rescue (SAR) operations, as it does not comply with the required standards to make it a credible SAR actor. Will this ruling have any impact on the allocation of EU funds, and on the overall accountability of the EU for the detrimental impact of the cooperation on the fundamental rights of migrants?

Factual background and the broader policy framework of criminalisation of sea rescue in Italy

The judgement (published, in Italian, here and translated into English here) originated from a legal action brought by SOS Humanity, a non-governmental SAR organisation operating in the Mediterranean sea, against the administrative detention of one of its ships, Humanity 1. The detention order was issued by the Italian authorities in the aftermath of a rescue operationed conducted by the NGO and concluded with the disembarkation of 77 survivors in Calabria. According to the Italian authorities, the NGO obstructed the activities of the Libyan Coast Guard, deemed to be the competent authority to perform SAR activities due to the migrant dinghy in disress being located in the Libyan SAR region, causing a situation of danger, in violation of Article 1, paragraph 2-bis, of Legislative Decree 1/2023 (the so-called “Piantedosi Decree”, sometimes also referred to as the “anti-rescue” decree).

Legal proceedings against NGO vessels undertaking SAR activities, along with their temporary blocking in ports (the so-called closed ports policy) and the recent practice of assigning ports distant from the rescue region as safe locations for disembarkation, are all part of a broader trend of criminalizing human rights defenders engaged in rescue missions by Italian authorities. This trend began in 2017, when politicians, media outlets, and public prosecutors started using terms like ‘friends of the traffickers’ and ‘migrant taxi service’ to describe these NGOs. This hostile policy towards humanitarian assistance emerged as NGOs intensified their efforts to save lives at sea, compensating for the gradual withdrawal of EU Member States from maritime rescue operations following the end of Mare Nostrum, the objective being to ensure that migrants are intercepted by the Libyan Coast Guard and returned to Libya, rather than being disembarked in Italy (Cusumano and Villa 2020). Yet, not only have investigations to date failed to prove NGOs’ direct involvement in unlawful activities, with most cases ending with an acquittal, the release of the detained vessel, or discontinuation due to lack of evidence (FRA 2024). Italian SAR-related judgements, such as the Crotone’s one, have clarified that cooperating with the Libyan coast guard is unlawful however.

The Civil Court of Crotone clarifies that the Libyan Coast Guard cannot perform SAR operations and confirms that Libya cannot be considered to be a safe port for disembarkation

By annuling the detention order of Humanity 1, the civil court of Crotone undertook an analysis of the legal framework governing SAR operations, and notably the International Convention for the Safety of Life at Sea (SOLAS), the United Nation Convention on the Law of the Sea (UNCLOS), and the International Convention on Maritime Search and Rescue (SAR Convention), to clarify that the duty to render assistance at sea, which is currently also part of customary international law, requires all ships to rescue vessels in distress and disembark shipwreck survivors in a “place of safety.” A port of disembarkation cannot be considered safe if rescued individuals are unable to enjoy their fundamental rights, including effective access to international protection.

In this context, the Court stated: (1) that the activities performed by the Libyan Coast Guard cannot be classified as rescue measures due to the undisputed and documented evidence of Libyan personnel being armed and firing shots; (2) that Libya itself cannot be considered a safe port for disembarkation because of the serious and systemic violations of fundamental rights against migrants and refugees; and (3) that this remains valid regardless of the MoU signed between Italy and Libya to cooperate on migration management, as this arrangement does not exempt either party from their obligations under international law. The Court thus concluded that any operation carried out by the Libyan Coast Guard cannot be regarded as a rescue operation terminating in a place of safety, as required by international standards. Consequently, any detention measure taken against the only actor capable of performing a SAR operation at that time, namely Humanity 1, is unlawful.

The 2024 July decision of the Court of Crotone represents the last and clearest ruling pertaining to a string of cases relating to SAR operations in which italian courts have passed judgement on the safety of Libya, and on the cooperation with the Libyan authorities. Previous judgements include a decision of the Court of Rome issued in June 2024 (published, in Italian, here), which awarded damages to Eritrean migrants who were rescued at sea by an Italian merchant ship (Asso 29) and returned to Libya, in line with a previous ruling of the Court of Cassation, which upheld the conviction of the captain of another ship (Asso 28), who handed over around 100 migrants to the personnel of a Libyan patrol boat, after having rescued them at sea (the judgement is published, in Italian here, and commented, in English, here). This adds to a 2021 ruling by the the Italian Court of Cassation (published, in Italian, here and commented, in English, here), which confirmed the acquittal of two migrants accused of violence or threats and resisting a public official (Articles 336-337 of the Criminal Code) as well as facilitating illegal immigration (Article 12 of the Immigration Act 286). These accusations stemmed from the migrants’ violent opposition to the decision of the captain of the Italian tugboat, Vos Thalassa, to head towards Libyan shores after rescuing 67 migrants from a small wooden vessel that was about to sink in the Libyan SAR region. The Court upheld the decision of the Court of Trapani (available, in Italian, here), which was overthrown on appeal, of acquitting the migrants on the basis of self-defense. By annuling the decision of the appelate Court, it ruled that the first instance judge rightfully found that migrants rescued at sea faced with the prospect of being returned to Libya are allowed to resist a public official because of their fundamental right not to be returned to an unsafe place, in violation of the principle of refoulement recognized in international, EU, and national constitutional law. The systematic violations of fundamental rights in Libya were already extensevily acknowledged by the the Court of Assizes of Milan convicting a Somali citizen to life imprisonment for having committed abuse, rape, torture, and murder when managing a detention center in Libya in 2017 (published, in Italian, here and summarized, in English, here), upheld by the Milan Court of Appeal in 2019, and the Court of Cassation in 2020.

The relevance of the judgement for the ongoing cooperation with the Libyan Coast Guard

Despite plenty of evidence showing serious and systematic violations of fundamental rights in Libya since 2017, cooperation with the Libyan authorities continues to this day. Why is it so? We have to go back to 2012, when Italy was condemned by the European Court of Human Rights (ECt.HR) in Hirsi Jaama for having violated the prohibition of refoulement and collective expulsion in intercepting and returning migrants to an unsafe place such as Libya, without having given them the chance to individually reveal their protection needs. Since then, Italy, with the support of EU funds, has “created such conditions that it is the Libyan navy to get its hands dirty” (own translation from Veglio 2018, p. 21), through the use of what has been defined as a “contactless control” form of externalization, i.e. the complete outsourcing of border control functions to a third country to ensure that fundamental rights violations are geographically far removed from its jurisdiction, as its conduct is limited to the provision of financial and technical assistance (Violeta Moreno-Lax 2020). As shown by the Italian judgements issued before the one of the Court of Crotone, when it is possible to establish a physical connection with the Libyan authorities (such as the handing over of people to its Coast Guard), the conditions in Lybia, which have not improved since 2012, are sufficiently bad to demonstrate that cooperating with the Libyan Coast Guard is unlawful.

It remains difficult however to demonstrate that the provision of “mere” logistical support in absence of physical presence amounts to refoulement. This is shown by the fact that both the Regional Administrative Court in Rome first, and the Council of State thereafter, dismissed an action brought by the Italian Association for Juridical Studies on Immigration (ASGI) and Amnesty International aimed at annulling a decree allocating money to Libyan border control authorities (available, in English, here). Both courts concluded that Italy does not exercise effective control over the Libyan territory or its personnel, and that no international judgement to this date has recognized that financial assistance amounts to “proxy refoulement”, i.e. refoulement which is de facto caused by the conduct of authorities different from those that are committing the fundamental violations. This fact rendered the claim “hypothetical and unproven”. In this context, could the Crotone judgement help square the circle when it comes to linking the provision of financial assistance to the fundamental rights violations in Libya?

One manner to overcome the issue posed by the difficulty to attribute the fundamental rights violations to the conduct of providing funds could be to make use of EU budgetary law, due to the involvement of EU money in the implementation of the Italy-Libya MoU, and most specifically on the principle of sound financial management. This principle, which should be respected when using EU funds (Art. 317 TFEU), comprises the principles of economy, efficiency, and effectiveness (Art. 2 (59) and Art. 33 (1) Financial Regulation). The latter requires that the objectives pursued by a given project can be achieved through the activities undertaken. As mentioned in the introduction, the Commission has systematically defended the provision of funds to Italy for enhanching the capacity of the Libyan Coast Guard by pointing out that EU funds are not going to the detention centers where human rights violations happen, but they are aimed at supporting rescue missions, with the objective of saving lives at sea. However, the tCourt of Crotone has inequivocabily stated that the Libyan Coast Guard cannot perform SAR missions, making EU support to Libyan border management authorities structurally unable to reach the stated objective, and thus, from this perspective, irremediably uneffective.

The question of what next

What has been said so far can lead us to conclude that the Crotone ruling could potentially pave the way to test a new legal argument to contest the funding transferred to Libyan authorities. Yet, the question of the most appropriate forum to do so is less straightforward. Besides using the argument when it comes to other proceedings challenging the detention of NGO vessels engaged in SAR on the basis of refusal to comply with the orders of the Libyan authorities, it is more difficult to imagine how to contest the provision of funding altogether.

At the national level, one avenue could be to bring a new action for the annulment of the Italian Decrees authorising the expenditures and using the Crotone ruling to adduce evidence as to the existence of a misuse of power, given that stakeholders representing collective interests, such as ASGI, have been recognizes as entitled to standing in Italian courts. When it comes to directly questioning the conduct of the Commission, which has the ultimate responsibility to ensure that the EU budget is used in conformity with the principle of sound financial management, the situation is even trickier. As for remedies of a judicial nature, the strict standing conditions of the annulment procedure, which do not extend to organisations defending collective interests if not directly and individually affected by a given measure, such as a Commission’s implementing act authorising a given expense, together with the high threshold to prove liability in action for damages, make it highly unlikely that individuals negatively affected by such misuse of EU money could find any redress. The only option would be for the European Parliament and Council to find agreement to bring a case themselves against the Commission, which also appears far-fetched given the current political  support to externalisation practices aimed at reducing migration inflows to the EU.

When it comes to other avenues, the ongoing strategy employed by a number of civil society organisations – the de:border collective, ASGI, and the Italian Cultural and Recreational Association (ARCI) – of engaging with non-judicial actors, such as the Court of Auditors (CoA) and the Parliament’s PETI Committee, to contest EU support to Libya, have led to several exchanges of views and hearings in the European Parliament, and the CoA’s commitment to look into the matter in a special evaluation report, not available to this date. In this context, the judgement could be used to further feed the discussion with these – more “accessible” – bodies, and potentially also be used to file a complaint before the European Omdudsman, claiming maladministration on the part of the Commission for failing to ensure compliance with the principle of sound financial management when implementing the budget. Yet, the non-binding nature of the body’s recommendations could also fall short of delivering effective accountability.

Conclusion

The Crotone judgement explicitly contradicts the rethoric used by both the Commission and the Italian authorities to justify their ongoing support to Libya. Yet, while it could substantially help strenghtening the arguments that have been used throughout the years to contest it, as well as to generate legal victories when it comes to individual judicial proceedings, it might not be enough to steer towards a change of policy. The virtual impossibility for individuals to contest how EU funds are used in this area is not only a concern for the right to an effective remedy, when the misuse of funds facilitates serious and systemic fundamental rights violations, but it also raises the broader question of whether there are currently sufficient mechanisms in the EU to ensure an effective oversight and control of public spending.

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Posted by Andreina De Leo

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Andreina De Leo is a Early-Stage Researcher within the LIMES doctoral programme’s project “EU’s Shifting Borders – Scrutinizing Externalization of Migration Management and International Protection Responsibilities”. She is based at the Department of European Law of the Faculty of Law of Maastricht University, in the Netherlands. Her project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 847596.