Diletta Agresta and Armando Maria De Nicola
Beyond control: the management of the “border”
Both the European Union and its Member States have responded to the challenges posed by global migrations through the adoption of repressive policies, centred on the externalisation of the management of borders to third countries. The objective of such policies is to contain migratory flows from extra-European countries, and this approach includes movements of people fleeing wars or natural disasters or leaving their country in search for better economic opportunities. These policies of containment have led to the development of a number of evolving systems that include different actors and the interplay of strategies in which the interests of European and African countries interlace.
The delocalization of the border and the massive cooperation with third countries – be they countries of origin or transit – continue to be a central tool within the framework of the EU migratory policies. In the official narrative on migrations, a significant change has materialised with the shift from the concept of “border control” to that of “integrated management of external borders”. As Cutitta notes, this concept points beyond the issue of control, de-politicising it and affirming a more technical approach to the management of global mobility.
In the framework of EU migratory policies, Libya plays a key role for its position as a transit hub of migratory flows from Africa and beyond. However, in the current circumstances, the governance in the country is weak, and its authorities seem to benefit from the legitimation obtained through the European involvement in the country. Given its central role in relation to migratory flows in the Central Mediterranean Sea, Libya has been considered a predominant player in the control of maritime borders by EU institutions and its Member States.
European support for the Libya-led management of maritime borders
In 2017, the European Council declared that the main objective of the European Union was equipping and training the Libyan Coast Guard. At the same time, the EU Commission approved a programme titled “Support to Integrated border and migration management in Libya” (also known as IBM, or Integrated Border Management). This programme includes financing for a total 46 million euros; out of this amount, 42 million euros come from the EU Emergency Trust Fund for Africa and are earmarked for activities to be carried out by the Italian Ministry of the Interior. IBM aims to strengthen the capacity of Libyan authorities in the areas of border and migration management both on land and at sea. The expected result is to equip the Libyan authorities – through material, political and technical assistance –to carry out interception of migrants and refugees in the Central Mediterranean Sea and facilitate the return of intercepted people to the cruel and inhumane conditions of Libyan detention centres.
The tragic consequences of this programme on the rights of foreign citizens along migratory routes to Europe have sparked the mobilization of a number of civil society-led initiatives that have shed light on the ill-fated effects of IBM on migrants’ rights, in particular on their right to asylum and the right to leave any country. In this context, monitoring activities have flourished with the aim of demonstrating the juridical responsibility of the European Union and Italy
, in cases where extreme violations have been perpetrated.
In relation to the activities of the IBM programme, the lack of transparency and accountability has been evident – both on the European and Italian side – and in particular due to the absence of monitoring mechanisms on the impact of such programme on foreign citizens’ rights. In a context where the EU and its Member States are contributing to serious violations, the unavailability of information on the use of public funding sparks both interest and concern within the larger civil society. Obtaining information on how the activities, monitoring processes, evaluation and reviews are implemented in the context of the IBM programme would allow citizens to interact with decision-makers on how funds are used by Libyan actors. On the contrary, denying access to such information means excluding EU citizens from verifying the legitimacy of the use of such public funds in a sensitive context such as Libya.
In October 2020, Sara Creta, a journalist who has been working on forced migrations for some years with regular field visits to Libya, made a general Freedom of Information (FOI) request to the Italian Ministry of Interior. The objective of her request was to know how the IBM-related funding is used. Before forwarding such request, she carried out a research which allowed for a partial reconstruction of the activities implemented by the Italian Ministry of Interior in the framework of IBM.
Through an analysis of institutional sources such as the website of the State police and that of Invitalia, Creta found out that, in September 2020, 6 million euros – out of the 46 million euros allocated for the first stage of the project – had been spent. The implemented activities included the supplying of boats to the Libyan police as well as Toyota Land Cruiser vehicles and Iveco Minibuses to Libyan authorities, together with a tender for the supplying of 14 ambulances to be delivered to the “Libyan state”. In addition, money has been allocated for “technical assistance and specialised consultancy services to the Central Directorate for Immigration and Border Police”, subcontracted to external consultancy firms and trainings for the Libyan police. The Italian Ministry of the Interior has not accepted the Freedom of Information (FOI) request, giving vague grounds for its decision, among them the potential damage that such a disclosure could entail for the bilateral relations between Italy and Libya.
For this reason, Sara Creta – with the support of ASGI lawyers and members Luce Alessandra Bonzano and Alberto Pasquero – has lodged an appeal to the Lazio Regional Administrative Court. The appeal revolves around her right to access “data and documents held by public administrations, in addition to those already publicly available and published”. Article 5, paragraph 2, of Legislative Decree No. 33/2013 confers on “any interested party” the right of access to such documentation, essentially public, regardless of specific objective interests or any obligation to give an explanation.
Since the civil society has an interest in knowing the activities carried out by the Public Administration and verify whether funding is employed correctly, the refusal seems illegitimate. Even the reason given for such a decision, which lies in the fear of a potential damage to the countries’ international relations, seems devoid of any real meaning, as part of the documentation has been already published and is publicly available.
In conclusion, the position of the Italian Ministry of Interior seems opaque and leaves room for perplexities on how EU funds are used in Libya. The silence of Italian authorities on this subject matter does not seem in harmony with the principles of transparency and the right to information. Such obligations appear even more urgent as the funds under scrutiny are allocated to a country that has been committing serious violations of refugees and migrants’ human rights for several years, perpetrated especially by the Libyan Coast Guard, which is one of the actors who have received funds in the framework of IBM.
The IBM project as a segment of a larger political project
Some European associations have highlighted the dubious compatibility of the EU Emergency Trust Fund for Africa with the basic requirements of the EU system for the management of funds dedicated to external action. This is especially so as the EU Emergency Trust Fund for Africa lacks a clear and coherent definition of objectives and transparency. The European Court of Auditors (ECA) has put into question the objectives of this Fund; despite having been initially established to face the structural causes behind global migrations, the fund has ended up being used as a tool of migration containment against people on the move from the African continent to Europe.
This casts doubts also on the work of the EU institutions with regard to a number of aspects: first, the modalities of funds’ disbursement; the compatibility with the European financial regulations; the decision-making around the composition of the institutional budget; and finally, the role of the European Parliament, which has been deprived of any form of control because of the emergency framework that has dominated the decision-making. But the real issue at stake remains the impact of such activities – funded also through IBM and regardless of the fact that they are carried out by external actors and outside the EU territory – on the fundamental rights of migrants, vulnerable groups and people deserving of international protection. This implies blatant violations of EU and international norms on fundamental rights, which are binding both for the European Union and its Member States.
It is evident that the Italian authorities’ lack of transparency on the activities implemented through IBM interlace with the more general and dubious European action of border externalisation. Any form of funding to Libya ought to be conditional upon the fulfilment of concrete and verifiable requirements in order to guarantee the respect of fundamental rights of people on the move.
Institutions need to prioritise transparency in order for citizens to be able to monitor the legitimacy of the funds disbursed. In this context, the Freedom of Information Act seems a strategic tool; on the one hand, it allows people to know the content and activities of public administrations, and on the other hand, it is useful for the development of actions in response to the present state of affairs, also through judicial means. This type of actions become more and more important in a context where the process of border delocalisation moves increasingly further south and has an ever-increasing impact also on the interests of African governments in controlling mobility and restricting freedom of movement.
 See: Cutitta, Ripensare l’esternalizzazione [Rethinking Externalization], in Rivista Geografica Italiana, CXXVII, No. 4, December 2020. Franco Angeli Editore, pp. 55-73
 ASGI, GLAN, and ARCI, Legal complaint against EU financial complicity in push-backs to Libya https://sciabacaoruka.asgi.it/en/legal-complaint-against-eu-financial-complicity-in-illegal-push-backs-to-libya/
 Special report No. 32/2018: European Union Emergency Trust Fund for Africa: Flexible but lacking focus https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=48342