Special Reports | 19

BARBARIANS AT THE GATE TRUTH AND FALLACY BEHIND THE CROSS EURO-MED IMMIGRANT WAVE PICHON ELODIE

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ELODIE PICHON is currently a geopolitical analyst at the Crédit Agricole, a major french banking group. She holds a MA in Geopolitics, Territory and Security at King's College London, and a BA in Law and Political Sciences.

IntroductIon HumanItarIan tHeory InternatIonal law and refugees rIgHts The main principles of international law Refugees’ rights The obligation to rescue disabled persons The Dublin treaty Legal uncertainties Regarding the notion of refugee Regarding Rescue operations

from a legal Issue to a polItIcal one?

Official narratives A cynical discursive manoeuvre to create bogus refugees Justifying a state of emergency Producing illegal refugees: the obscene of inclusion

evolutIon of tHe mIgratory movements Illegitimate cooperation?

Cooperation on national level The EU cooperation

from lIbya to tHe eu a sHIft of tHe notIon of asylum conclusIon

INTRODUCTION

The right of asylum is at the basis of our democratic ideal, legally defined and guaranteed by the Geneva Convention. Yet, its application is problematic and subject to reluctances in Europe. Gradually, the leaders of the supposedly host land conveniently forget their legal duties toward asylum seekers, by using a humanitarian discourse which excuses, and even justifies their repressive policies. The humanitarian discourse concerning immigration highlights beneficence despite being ostensibly derived from duty.

As such, Europeans are thought to be “heroic” when they merely “tolerate” refugees, and justifiable when they do not accept them. Immigration becomes a charity rather than a duty, and allows us to feel generous when we accept refugees even if the number is incredibly low, even if we do not provide the assistance needed, and do not guarantee migrants the rights they are entitled to (Dauvergne;1999). The leaders of state discourse creates the idea of “threatening migrants”, “clandestins”, and “bogus refugees”, to distract attention from their disregard of the principles of international law, such as the fundamental principle of “non refoulement”. Conveniently enough, their own illegality is forgotten, and give way to irrational fears of refugees, viewed as potential terrorists, and as a threat to our national identity. In these conditions, hosting refugees is seen as a risk, which should be limited. The absence of justice standard in immigration law, the flagrant legal uncertainty and the biased political and media discourse threaten the migrants whose rights are denied.

RESEARCH AIMS AND RATIONALE

The research is both analytical and critical. Using humanitarianism theory, this report analyses European policies toward migrants who transit through Libya, from the arrival in power of Gadhafi in 1969 onward.

This report aims to understand how the humanitarian discourse, justifies response and reaction to the fear of a migrant “invasion”. By moving toward a historical approach this report will show that European repressive and reactive policies is consistent with its policies since the 1970s. These policies are paradigmatic of tensions between the discourse and practices of compassion and repression, to reject migrants and save the image of Europe as a “host land” at the same time. As such, the discourse around a “migration crisis” serves these policies as it justifies emergency measures to further close the borders of Europe, and reduces the rights of asylum seekers because of an “overworked” Europe. Most of all, I’ll argue that these policies are paradigmatic of European will to redraw a boundary between Europe and a “postcolonial harvest” (De Genova, 2016), since it justifies policies which maintain refugees in a precarious and unstable status, which depends largely on the administrative authorities (Gaini, M ; Harder, H ; 2004).

STRUCTURE This report will first present in Chapter 2 a review of the literature concerning humanitarianism as a concept concerning migration policies, and will show that the tensions implied by this theory between compassion and repression highlight the neo-colonialist approach adopted by European leaders. Then, chapter 3 will recall the legal rights guaranteed to migrants seeking asylum, and the legal uncertainties that remain. Chapter 4 will also explain that the political discourse is instrumentalized to justify repressive policies, and fill the gap of legal uncertainties. In a fifth chapter, European policies concerning migrants who transit through Libya, during the Gaddafi period, from 1969 to 2011, and after the Gaddafi’s period will be analysed. Finally, chapter 6 will show that these practices are paradigmatic of a shift of the notion of asylum.

METHODOLOGY

This report adopts a constructivist approach, since we believe that the world cannot exist objectively, and is constructed by our own interpretations. The discourse both frames and is framed by our understanding of the world. We project our values, interests, emotions in our discourse and, thus, we understand it differently according to a number of sociological and cultural variables. More importantly, the political discourse is crucial as it frames the way people understand the world. As such, the discourse surrounding “refugees” and the so called “refugee crisis” has determined the reaction to it, and to the policies implemented by the European leaders.

Primary sources such as political speeches will be analysed through the light of humanitarianism theory to show how political leaders made their repressive policies acceptable. Then, evidence of law and legislation will show a link between the political discourse of securitisation and the policies implemented.

Finally, the use of an historical approach aims to show that the instrumentalization of securitization and humanitarian discourse to justify repressive policies toward migrants who transit through Libya is not new, and has been used both by European leaders and Gaddafi. The so-called refugee crisis discourse was used to supply the pretext of even more border policing. Yet, this critical discursive maœuvre is in line with former European migration policies.

THEORY AND REVIEW

HUMANITARIAN THEORY Contemporary Western politics draws its legitimacy from principles of democratic governance, and from a universal conception of welfare which articulates the sentiments of justice and pity (Chouliaraki, Lilie. 2010). Thus, a “humanitarian discourse” has become widespread, and tends to emphasize grand emotions about suffering and the imperative of empathy. Humanitarian politics have been submitted to a new methodological requirement, which plays on moral sentiments to legitimize the government’s practices. (Ibid) The political discourse, as well as the one of the media describes the migration phenomenon as a disaster, in order to produce a moralizing effect.

The disaster-focused discourse has two main advantages. First, it justifies the acceptance of asylum seekers thanks to a momentum of philanthropy.

(Vieira, 2016). Second, it is used as a device to justify emergency governmental measures, aimed at expanding border enforcement.

This securitization/ humanitarian nexus frames the discourse, which astutely alternate between compassion toward migrants and the representation of a security problem for the European Union. The victimization of migrants became widespread, and justified “rescue operations”, whereas smugglers have been criminalized, to justify repressive policies against them.

The political and the media discourse frame the European citizens” reaction, their empathy, disapproval, fear or indifference. On the 2nd of Sep-

tember, 2015, the picture of a drowned Syrian child washed ashore in Turkey raised the public attention on the Mediterranean disasters encountered by refugees. This sudden reaction contrasted with the usual indifference of Europeans toward comparable episodes, which were less publicised, but just as known by everyone. The obligatory compassion triggered by this horrible photography of the corpse of the child, was soon accompanied by a tough discourse against “illegal immigration”. The focus was on the criminal smugglers, and bogus refugees - who could seek undue benefits at best, or could be terrorist, at worst - in order to better justify the securitization of the European external border, and even to propose to bomb the coast of Libya, or to send ground troops. (De Genova, 2016) Paradoxically and quite cynically, the emotional appeal has led to more securitization. In this regard, the manipulation of fears toward foreigners is not new. The so called “migration crisis” makes us forget that European tough policies toward foreigners are not new, and have been particularly repressive since the 1990s. State leaders have acted to exclude incomers to defend the homeland (Van Selm 2000: 12; Dummet 2001: 109- 136).

The display of images of the arrival of boat people has quickly triggered reactions of fear rather than hospitality and reason in Western countries.

Migrants are seen as potential enemies to be greeted by xenophobia and military responses. The presentation of these images by the media and by political discourse has framed people thinking and their reaction to the phenomenon. Indeed, these images structure the debate about “identity” and “homeland”. The latter term symbolizes the post 9/11 era, in which the discourse is constantly framed in security terms.

In any rate, the media and political discourse orders, justifies and reinforces opinions in shaping policies. They are portrayed as gypsies, stateless wanderers and, most of all, are not portrayed in their individuality, their humanity, and their rationality. (Pugh, 2004) Pictured like that, they are seen as a threat to the identification of the “settled self” in a territorial state: “the homeland”. (Huysmans, 1995, 1998: 573). This dehumanizing picture of the threatening migrants is reinforced by a natural disaster metaphor, which describes national homelands as “engulfed, inundated, submerged, flooded, swamped, and washed away”. Berlusconi, for instance, said that “Italians would be thrown out of our country by a wave of immigrants”. This vocabulary implied that the victim was the receiving country and not the migrants themselves. On the contrary, the migrants

are the cause of this “natural catastrophe”, and make the receiving country vulnerable. (Garelli, Tazzioli ; 2013) This metaphor has two main effects.

First, it implies that migrants might be destructive, destabilizing for the society. They could threaten national identity and culture but also represent a security risk since terrorist could pretend to be harmless asylum seekers. Second, its reference to “uncontrollable waters” may also serve to obscure considerations of legal and moral responsibilities about hospitality. (Pugh, 2004) To justify their inhospitality, and in line with the securitization discourse, Western countries distract attention from their own responsibilities by criminalizing smugglers, discredit “bogus asylum seekers”, “scroungers” and “clandestins” (Perkowski, N; 2016). Securitization implies a distinction between people thought to have economic motives rather than safety ones. But this distinction is often hard to make, and may go as far as considering that “real asylum seekers” would gain no economic benefit from asylum. Moreover, politicians recall that “bogus refugees” represent a threat for national security, as they could actually be terrorists, who hide among asylum seekers. As such, the neo-liberal policies that harm migrants, and forget their responsibilities regarding international law and ethical ones, regarding its supposed democratic values are conveniently forgotten. Instead, this discourse easily justifies the securitization of borders, to reinforce national security even though it could breach the principle of “non refoulement”. Worst, this discourse justifies a “state of emergency” in which authorities use exceptional measures, which often harm migrants’ rights. For instance, Berlusconi introduced legislation that granted local authorities the power to imprison arrivals, limited the time for asylum hearings and eliminated appeals. Finally, it justifies the destruction of boats: symbolic act equivalent to destroying an enemy’s logistic assets.

In sum, humanitarianism substitutes legality with charity and, thus, grants rights according to moral principles instead of legal ones. Humanitarianism also makes the government look generous, when it actually disregards international law. To understand this political manoeuvre, I will analyse the principles of international law regarding migrations.

INTERNATIONAL LAW AND REFUGEES RIGHTS

In this chapter, I will recall the principles of international law regarding refugees, and the legal uncertainties, which remain in this domain. I will then, argue that political discourse fill the gap of these legal uncertainties, in order to politicise a treatment of asylum seekers, which is supposed to be treated legally, and objectively.

THE MAIN PRINCIPLES OF INTERNATIONAL LAW Refugees’ rights Article 1 of the 1951 Convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it.”

A refugee is granted the right of non-refoulement, which is the right not to be returned to their country of origin because their life or freedom might be threatened. (Neumayer, 2004). This right is also granted to asylum applicants until it has been reliably ascertained that they are not refugees because asylum applicants must be treated on the assumption that they may be refugees. As such, non-formally recognized persons are also granted the right of “non-refoulement”.

The principle of non-refoulement has been clarified by the Hirsi case by which the Grand Chamber judgment of the European Court of Human Rights found that Italy’s push-back operation of the 6 May 2009 breached Articles 3, and 13 and article 4 of Protocol 4 to the European Convention on Human Rights (ECHR). In this instance, on 6th May 2009, three vessels, which boarded about two hundred people were intercepted within the Maltese Search and Rescue Region of Responsibility, by ships from the Italian Revenue Police and the Coastguard.

They were returned to Tripoli without being informed of their final destination, nor being identified. On 23rd February 2012, the Court decided that this pushback operation was illegal despite the bilateral agreements signed between the two countries, which authorised such practice. (European Database of Asylum Law, 2012). Consequently, the Court decided that Article 3, which grants migrants the right of asylum, had been exposed to possible ill treatment in Libya “and also to further expulsion to their countries of origin by Libya”.

The Hirsi Case clarifies the Principle of non-refoulement by giving three main precisions. First, the burden of proof is no longer placed upon the applicant. Second, the right of non-refoulement is absolute. Consequently, the national authorities have to make sure that the applicants would have a decent treatment if they are returned. In other words, the national authorities have to make sure that the migrant’s safety is real, and not only presumed because the country has ratified international human rights instruments. As such, there can be no automatic reliance on international agreements. Third and finally, it implies that bilateral agreements, which do not respect the principle of non-refoulement, are illegal since “the Contracting states’ responsibility continues even after they have entered into treaty commitments subsequent to the entry into force of the Convention”. (Palladino, Gjergji; 2016)

Given these elements, the Court assessed that Italy breached Article 3 of EHCR since it should have known that Libya did not offer sufficient protection. Indeed, “Libya did not ratify the 1951 Geneva Convention, has no asylum system, does not recognize the legal status of refugees”. Finally it has “indiscriminately removed irregular migrants to neighbouring states”.

(Ibid)

The obligation to rescue disabled persons Rescuing people in distress at sea is widely recognized as a “customary law norm” (Moreno-Lax 2011, p. 194). Distress has been defined by the International Convention on Maritime Search and Rescue (SAR Convention) as “a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance” (SAR Annex, para 1.313). However, the notion of danger is understood broadly, as the International Law commission precised that the “very existence of the person concerned” did not need to be threatened.

“Rescue operations” in the SAR Conventions are defined as “actions to retrieve persons in distress, provide for their initial medical or other needs and to deliver them to a place of safety” (SAR Annex, para 3.1.9). The coastal state submitted to this obligation of “rescue operation” has to bring the survivors to “a place of safety” (SAR Annex para 3.1.9) Indeed, the mission is thought to be accomplished when the survivors have disembarked. (Moreno Lax, 2011, p. 196).

The Dublin treaty The Dublin regulation says that migrants must claim asylum in the first country of arrival in the EU, where their fingerprints are taken. Thus, migrants right to claim asylum is geographically limited since migrants are forced to claim asylum in a country they cannot choose, even though they have relatives or networks in another country.

Between November 2015 and January 2016, a group of two hundred Eritreans, Sudanese and Somalian migrants contested being forced to seek asylum in Italy but were detained in Lampedusa because they didn’t want to give their fingerprint. Since then, the Italian police take fingerprints by force (Sciurba; 2016).

To conclude, migrants in danger have the right to be rescued, are granted a right of “non refoulement” and have a right to claim asylum. However, these rights are limited since, in practice, the criteria for granting asylum tend to be stringent, and subject to subjectivities and political decisions rather than objective and legal ones. Finally, the right to claim asylum is limited by the Dublin treaty.

LEGAL UNCERTAINTIES

Regarding the notion of refugees The definition of refugee is restrictive and does not encompass certain threats such as “political violence not specifically directed against them, natural disasters, famine, gender related protection”. (Neumayer; 2004) It has never been enlarged because of Western countries’ reluctance to provide asylum. However, because it is politically, and morally difficult to deny asylum to people genuinely at risk, “many more asylum applicants are de facto granted non refoulement”. Still, they are not granted the same rights as refugees to whom asylum is granted. (Ibid) Moreover, the notion of refugees, provided by the Geneva Convention, distinguishes political from economic migrants. However, in practice, this distinction is artificial, as these two motives often overlap. The separation between real and bogus refugees is made through investigative inquiries and following normative protocols in order to find out if migrants meet the requirements to be granted asylum. Asylum applicants have to prove to processing institutions that they are real refugees through the written memoires they submit to the Italian police, and through the interview with the territorial commission. (Garelli, Tazzioli, 2013).

The distrust of refugees is exemplified by the request of the advice of experts, to check if the stories of the migrants heard in court should be trusted. The certificate produced by a physician or a psychologist affirming the existence of physical or psychic traces of persecution becomes a crucial document in the application (Fassin, 2011). Thus, the difficulty to objectively distinguish a genuine refugee from a so-called bogus refugee according to legal criteria leads to the production of “illegal migrants” because the policies and practices will decide of the fate of the migrants, since the law is unclear. (Palladino, Gjergji; 2016) These practices show the widespread suspicion toward asylum seekers, which in turn, reflects the deligitimization of asylum as an institution.

(Daniel V, Knudsen J. 1995).

Regarding Rescue operations Rescue operations are questionable since migrants, once rescued, are sent in detention facilities where their basic needs are not fulfilled, and where their asylum application is not examined seriously, and individually according to transparent legal standards.

Migrants are sent to centres where the living conditions are far from optimal. For instance, asylum seekers at Mineo, Italy have to pay to get their passport back, and often struggle to find employment and resettlement information. Consequently, they can’t leave the camp and integrate to the Italian society. (Garelli, Tazzioli; 2013) Moreover, the process leading to the acceptance or rejection to their demand of asylum is questionable, as it seems that everything is made to reject migrants’ demands. On the form the migrants submit to the police, they are asked why they left their country of birth and have almost no question about Libya. This process shows the deny of Libya as a destination country. It enables Italians to refuse to these migrants the right of asylum, since most of those who were forced to leave Libya were not Libyans but economic migrants in Libya from sub-Saharan countries. In sum rescue operations are understood in a very strict term. The “bare life” of the migrants is saved, but they are not granted any rights beyond the right of survival. (Agamben, 2005) Finally, rescue operations fail at achieving their objectives: disruption of the business of human smuggling and reducing the further loss of lives at sea. The example of Operation Sophia, which was established on 18 May 2015 to “disrupt the business model of human smuggling and trafficking networks in the Mediterranean and to contribute to reducing the further loss of lives at sea” is paradigmatic. The mission is divided in 3 phases: “surveillance and assessment, search and diversion of migrant boats in international waters, and in Libyan waters ; third, terrestrial intervention in Libya to dispose of smugglers’ assets.”

The mission was presented as a humanitarian military mission to save migrants from traffickers. However, the rescue operation does not suppress the business model of smuggling since no safe and legal passages are provided. Refugees do not have a choice but to resort to smugglers since no legal passages exist for them to flee the war, and reach Europe. Instead of disrupting the smuggling business, Operation Sophia lead smugglers to change their practices, and put migrants even more in danger, since smugglers use cheaper boats because they are likely to be seized and destroyed by the mission.

Finally, migrants leave from Egypt instead of Libya, even though the travel is longer and, thus, more dangerous. (Tazzioli; 2015a) To conclude, domestic interpretation of international law lead to the absence of protection of migrants, who are constantly treated with suspicion. The legal uncertainties that we evoked lead to the production of “bogus refugees” and “illegal migrants”. The political discourse tends to fill the gap of legal uncertainties in order to justify its own illegality.

FROM A LEGAL ISSUE TO A POLITICAL ONE?

Official narratives Given the legal uncertainties, the political discourse can influence the way in which migrants will be treated. However, to be accepted the political discourse has to balance between criminalization, and the description of migrants as a threat and a discourse of compassion which allows European citizens to feel good about themselves (Zetter; 2007) Compassion is defined by Nussbam (2001: 301) as “a painful emotion occasioned by the awareness of another person’s undeserved misfortune”.

The person suffering is regarded as innocent; a person who does not deserve the pain. (Nussbaum, 2001: 306 ff.). A Marxist critique of compassion estimates that compassion is “nothing other than the narcissistic desires of an exploitative bourgeoisie to feel good about itself” (Sznaider, 1998: 121). Indeed, compassion makes us worthy of our European values of freedom, equality and human rights even though our attitude is not consistent with these values. We excuse our attitude by a securitization discourse, which justifies our repressive policies. The migrants are described as potential terrorists, and, most of all the smugglers are criminalized. Thus, it only appears natural to protect ourselves from such risk. This appeal to fear and emotions is not rational but astutely instrumentalized in contemporary politics. As such, official narratives are very powerful, when they are used to justify policies which are illegal. This illegality is forgotten, as citizens are influenced by this discourse, which balances between compassion and fear of the unknown.

As Said puts it,‘ official narratives still have the power to interdict, marginalize and criminalize alternative versions of the same history (Said, 2004).

The picture of migrants as a threat has been delivered by European politicians, the media and Libyan leaders.

In 2005, the Libyan foreign minister Rahman Shalgam spoke about an « invasion », and Gaddafi often threatened Europe to open the Mediterranean so that the continent would be « invaded by Africans » (Arie, 2004).

The same year, the Italian interior minister Pisanu defined migratory movements towards Italy as « an assault on our coasts » (Pisanu, 2005). A year later, in France, Chirac threatened that « Africans would flood the world ». (Haas, 2008)

This image of an « invasion » triggers citizens’ fear, as they only hear about migrants through the words « massive invasion, plague, etc ». These migrants come from places that they only hear in negative terms, and in opposition to the North. Indeed, « the South has been reduced in the world media to the wild site of the wretched of the earth: endemic famine, dictatorship, genocide, child soldiers, sexual mutilation (Palladino, 2014).

A CYNICAL DISCURSIVE MANOEUVRE TO CREATE BOGUS REFUGEES

The fear of migrants, lead to a strict differentiation between bogus refugees and the “real ones”. The process of differentiation is often illegal in practice since migrants are treated in a different way according to their nationality, and also because the decision is often made according to opaque standards. However, this process is presented as legal and justifiable by the “emergency situation” in a time of “migration crisis”. This discursive manoeuvre is quite efficient since it allowed diverting attention from our criminal actions to the fear of migrants and the criminalization of smugglers.

First, the discrimination according to nationality is illegal since asylum claims should be examined individually. This illegal practice has been made acceptable through the Italian public discourse who portrayed the Tunisian migrants as the counter figure of the refugee.

As such, an opposition was made between rebellious Tunisians versus Libyan refugees. Meanwhile, a political agreement between the Italian Interior Minister Roberto Maroni and his Tunisian counterpart Habib Essid show that a clear discrimination has been made against Tunisian migrants.

Indeed, this political agreement decided the fast-track deportation processes for all Tunisian migrants who enter Italy after midnight that day.

This agreement not only exemplifies a discrimination according to nationalities, but it also shows that a political decision can undermine migrants rights, since the deal conferred the right to protection on migrants who entered Italy before the 5th of April, and fast-tracking expulsion for those who arrived after the 5th of April. As such, it is reasonable to say that people’s rights are not well protected by international law, which has no enforcement mechanism. As a consequence, a mere political decision has supressed these rights overnight. (Garelli, Tazzioli; 2013).

Second, these discursive manœuvre that propagate the notion of migrant illegality are necessary to justify the sociopolitical procedures that generate this illegality. (De Genova, 2013). During the hearings, migrants have to prove that they are genuine asylum claimants, not economic migrants, and the decision is made according to opaque implementation standards.

Commissioners often did not speak English and relied on incompetent translators. Also, Commissioners marginalized the Libyan war context, and focused exclusively on the country of birth, forgetting that Libya was often a destination country itself. (Garelli, Tazzioli; 2013)

The political discourse portrays migrants as “illegal” and “threatening” for European security. Thus, there are seen as “illegitimate intruder” who cross illegally the European border. The bad image of migrants manipulates European fears, who come to think that our attitude should be tough, and that their arrival on our territory depends on our good will, whereas these migrants are supposed to be granted rights according to international law. This discursive manoeuvre efficiently overshadow Europeans” illegal practices. This discourse also justifies “emergency measures” which often justifies the breaching of international law, because of an “exceptional crisis”.

JUSTIFYING A STATE OF EMERGENCY Ophir (2010) uses the neologism « catastrophisation » to designate a cognitive bias in which someone magnify an inconvenient reality into something terrible. He transposes this technical term, used in cognitive psychology in the political domain to show how governments use discursive manœuvre to justify, and legitimize a state of emergency. (Ophir; 2010) In the political sphere, the « catastrophization » discourse « overgeneralizes risk-related factors », and induces panick and helplessly. The political discourse of catastrophization defines events as « humanitarian emergencies », « catastrophes », or « natural disasters ». In the context of the co-called “migration crisis”, the migrants are apprehended through this discourse of securitization, which justify emergency claims, and emergency statements.

By portraying the enemy as a threat, a risk for security, national identity, or economic welfare, catastrophizing discourse generates support from citizens who think that « catastrophic measures » are only natural, and necessary. The security discourse justifies repressive measures against migrants and push back operations, since migrants are associated with a threat for Europeans security, which has to be stopped by all means, even if they are illegal.

To be effective, this discursive effect has to choose the intangible moment that should change citizens attitude, who will be persuaded that « something has to be done », to face an existential threat. Thus, emergency measures are pronounced as an imperative, in order to decastrophize a catastrophic situation. This process has been observed in the aftermath of the psychosis which culminated after 9/11, the attacks of March 11th 2004 in Madrid, 7th July 2005 in London, and more recently the Paris terror attack in the 14th of November 2015, which has justified an increasing number of exceptional laws, since the migrants move from victims to potential terrorists, after terrorist attacks. These exceptional laws contribute to the state production of illegality since the state of exception often belongs to « a no man’s land between public law and political fact, and between the juridical order and life (Agamben, 2005) ».

Immigration crisis lead to changes in legislation, in the name of state of exception. However, these measures can undermine migrants, refugees and also citizens rights when it entails new restrictions. For instance, administrative practices become more severe toward asylum seekers, provoking an increase in illegal immigrants. (Ferre ;1997). The production of illegal migrants has lead to their detention in camps developed for them, in order to avoid their proximity with criminals but also to facilitate their deportation (Welch 2002). Agambally controversialy stated that “today it is not the city but rather the camp that is the fundamental biopolitical paradigm of the West. These detention structures are sites of exception, in which the legal regime is overshadowed by regimes of police. These exceptions are limited by legal constraints of European law, and international law. Thus, border controls have increasingly been externalised.

These European Neighbourhood policies (Boswell; 2003) included « delegating the regulation and repression of immigration of immigrations to non European states such as Libya and Morocco, (Valluy 2010) Emergency measures often undermine migrants’ rights, who are even more often easily refused asylum, and placed in detention camps, which are sites of exception, where migrants’ rights are not respected most of the time. Once they are placed in these detention camps, migrants are easily deportable. However, illegal migrants are often not sent back to their country of origin. They are sometimes tolerated on European territory, as they represent a cheap labour force. Their exploitation is not thought to be outrageous, since they are illegal. Thus, the dichotomy between “exclusion” and “inclusion” vanishes, through this process of “obscene inclusion” (De Genova; 2013).

PRODUCING ILLEGAL REFUGEES: THE OBSCENE OF INCLUSION

An efficient political discourse produces the image of an invasion of migrants, who are seen as undesirable. The portray of a “scene of exclusion” has been called by De Genova a “border spectacle of exclusion” which consists in the proliferation of images and discourses devoted to the idea of illegal immigration.

Alongside of this exclusionary spectacle, there is actually a massive importation of undocumented migrants, represented as undesirable but who are accepted in European territory since they are secretly seen as “legally vulnerable, precarious, and thus tractable labour”. These illegal migrants form an “army” of cheap labor, deportable, and who has no choice but to accept poor labour conditions. Thus, the process of exclusion itself, enables the importation of cheap labour.

The will to include “illegal migrants” seems to be showcased by the Government’s practices. According to Sciurba’s fieldwork, in early December 2015, a group of Gambian migrants each carried a so-called “7 days decree” which compelled them to fly from the airport of Fiumicino in Italy, but were not able to do so since the Italian police abandoned them at the railway station of Agrigento without money or information about what to do, and where to go (Sciurba; 2016).

To conclude, the rhetoric of catastrophe to describe the so-called migration crisis, the securitization discourse highlighting the threat that pose migrants, and the display of a “border spectacle” of the exclusion of migrants has been efficiently tied together to justify illegitimate, immoral and sometimes illegal policies. “Emergency measures” which are at the opposite of our democratic values for which we are supposed to stand for become commonplace. The exclusion of migrants becomes the norm and the inclusion of illegal migrants becomes accepted because of the cheap labour force they can offer to our capitalist societies. Finally this cynical but no less efficient political discourse hides the obscene, and above all illegal treatment of asylum seekers claims. The next chapter will show how the security/ humanitarian tandem has been astutely used by Italy, and then the European Union to cynically cooperate with Gaddafi on migration issues. Push back operations, disregard of the principle of non-refoulement, and the outsourcing of detention centres were at the core of this gloomy cooperation that we will analyse.

EVOLUTION OF THE MIGRATORY MOVEMENTS FROM LIBYA TO THE EU

The Italian, and then European cooperation with Gaddafi has been made without any plausible guarantee of respect of human rights, since Libya has not ratified the 1951 Refugee Convention or the 1967 protocol, and has failed to adopt asylum legislation, and does not respect the nine core international human rights treaties it has ratified.

Illegitimate cooperation?

Libya’s denial of the fundamental values of democracy, its disregard of human rights including those of refugees make the country illegitimate for any kind of cooperation regarding migration control.Libya does not hesitate to push back foreigners, and especially Sub-Saharan Africans, without any justifications nor legal safeguards, nor any possibility to challenge the deportation. Moreover, the situation in Libya itself is very difficult for foreigners who are victims of xenophobia and violence (Amnesty International, 2012, pp. 5-6). Sub-Saharan Africans are victims of racism, since they are not granted basic services, contrary to Syrians. Finally, foreigners detained in holding centres have no consular assistance, contrary to the Libyan authorities’ obligations.

The values of human rights, of protection of endangered populations, which are at the roots of democracy, and at the core of international law were conveniently put aside because they impinged on the selfish interests of the EU.

The prominence of selfish interests, and the fear of foreigners was instrumentalized by Gaddafi who needed to improve its relations with the European Union in order to come back on the international scene and to put an end to the stifling embargo against its country. Gaddafi adapted its discourse to the dominant language of the fear of immigration, and made himself indispensable to control the Mediterranean border. If no cooperation was organized, the EU could be “invaded by migrants” threatened Gaddafi (Perrin, 2009). By accepting to close its border, the Libyan authorities managed to accelerate the lifting of the embargo. Beside that, they also gave up in December 2003 weapons of mass destruction, resolved the Lockerbie affair and the one of the DC-10 of USA. This idea of migrants who might invade Europe was emphasized by Gaddafi’s open door policy toward Sub-Saharan Africans in the 1990s. This policy followed the privatisation of the Libyan economy, the opening of diplomatic relations with Africa, and the 1992-99 embargo. The numbers are striking, and explain EU fear: “Whereas less than 40,000 Sub- Saharans lived in Libya according to the 1995 census, their numbers peaked at 1.5 million in 2000 according to Libyan officials “(Baltimore Sun, 26.10.00). EU leaders started to worry, and saw the migrants in Libya as potential invaders. The blurry frontier between transit migrants and the established one led to a confusion, encouraged by public authorities through the media.

COOPERATION ON NATIONAL LEVEL

The perception of “an invasion” of migrants to Europe - presented by the media and political discourse - is misguided, and distorts reality, as migrants in transit through Libya are only a minority. Yet, it influenced the political agenda, as exemplified by the way “multilateral (EU-Maghreb) or bilateral political negotiations between the two shores of the Mediterranean rapidly focused on the figure of the “illegal sub-Saharan migrant in transit”. (Perrin, 2009) Sub-Saharan migrations to Europe have hided the importance of Sub-Saharan migration to Libya itself.

Even if there are much fewer migrants in transit than immigrants, giving a political focus to the notion of transit bears important consequences for all, regardless of their migratory status. It leads to the “progressive construction of a European borders control system, with ramifications up to Sahel migrants’ countries of origin.”(Ibid) The fear of migrants instrumentalised by Gaddafi, guided the Italian management of its Mediterranean border. Since the 1990s, Italy tried to restrict the coming of migrants as much as possible. Despite the manifest disregard of human rights in Libya, Italy decided to cooperate with this transit country in order to securitize its Mediterranean border. In 2000, Libya and Italy increased their cooperation to fight organized crime, terrorism and irregular migration. This cooperation was strengthened in 2003 and 2004, in reaction to the tragedy of June 2003. Indeed, the landing of 3000 foreigners on Lampedusa, and the death of hundreds of migrants in the Mediterranean urged Italy to cooperate with Libya, largely blamed by Italy for the tragedy.

The two countries concluded an agreement by which Libya accepted to help preventing illegal immigration, in return for the supply of frigates, and other material of controls. (Perrin, 2009). In September 2004, cooperation was reinforced since the two countries implemented joint patrols along the borders, an airlift in order to repatriate the migrants who passed through Libya to Italy. As a result, in 2003 and 2004, “5688 people were returned to their countries by charter flights financed to some extent by Italy (Triandafyllidou, 2014). These operations were illegal since they didn’t take into account the principle of non-refoulement, enshrined in the Geneva Convention. Indeed, migrants were push back before having the possibility to apply for asylum when they reached Italy. At the same time, Libya expelled sub-Saharan Africans from its territory. In 2004, Libya expelled around 54 000 people, which is 11 000 more expulsions compared to 2003.

This cooperation between the two countries to enable more repressive policies, and push back operations against migrants has only increased until the fall of the Gaddafi regime. In 2007, two main agreements have been made. A protocol on maritime cooperation, allowed Italy navy ships to enter Libyan waters to conduct patrols with their Libyan counterparts (Triandafyllidou, 2014). Moreover, the implementation of a system of control of terrestrial Libyan borders has been assigned to Italian companies who have the necessary technology competencies. (Perrin, 2009).

Finally, the cooperation culminated with the conclusion of the Treaty of Friendship, Partnership and Cooperation in 2008, allowing Italy to return migrants to Libya, without letting them claiming asylum. (Triandafyllidou, 2014) (EU observer, 2010). These measures lead to an “almost complete stop of irregular immigration from Libya to Italy in the period between 2009 and January 2011”. (Ibid) However, Gaddafi’s fall lead to the suspension of the Treaty of Friendship.

(Amnesty International, 2012). Thus, Italy renegotiated with the post revolutionary state, and signed a Memorandum of Understanding with the Libyan National Transition Council on 17 June, 2011. (Paoletti, 2012). Then, the Declaration of Tripoli was signed between the two countries, and was similar to the former treaty of Friendship, signed between the two partners in 2008. Finally, the conclusion of the Processo Verbale were signed by the respective ministries of Interior, but have been criticized for their disregard of the principle of non-refoulement, and their disregard of international and European legal standards (Statewatch, 2011). The assessment of these agreements is striking. From 2004 to 2010, more than 4000 third country nationals were directly returned from the Italian island of Lampedusa to Libya. However, asylum seekers did not have the opportunity to make a claim of asylum, according to the inquiries in Lampedusa lead by the European Parliament. (Rutvica (2010).

Despite the obvious violation of the prohibition of collective expulsions in the European charter of human rights and the violation of the non refoulement principle of the 1951 Geneva Convention on refugees, the European Commission decided in April 2005 that condemning the Italian policy was impossible because it exceeded its competences. (Klepp; 2010).

UNHCR saw this in a different light and strongly condemned the Italian government actions with Libya, especially the push back operations at sea possibly resulting in refoulement (Triandafyllidou, 2014). Moreover, one could have reasonably thought that the situation would have evolved when, in February 2012, Italy was condemned by the European court of Human rights for these push back operations in Hirsi et al . v Italy. (Ibid).

But this condemnation, and the evolution of the principle of “non refoulement” does not seem to carry any weight against a strong political discourse, which promote fear and repression. An analysis of the “rescue operation” Mare Nostrum, is paradigmatic of the Italian strategy: replacing migrants’ rights by a humanitarian operation which promotes charity to a few, to better reject the majority of migrants, despite their entitlement to a certain number of rights.

On the 28th of October 2013 Operation Mare Nostrum was launched by Italy in reaction to the 3rd October 2013 shipwreck. The stated goal of the mission was “to face humanitarian emergency” in the Sicily canal by rescuing migrants who were in crafts which risked to capsize and bring them to Sicily. The mission also aimed at arraigning smugglers.

The term “rescuing migrants” hide a gloomy reality, since the “safe place” they are brought to is nothing less than a “hotspot” which produce illegal migrants instead of protecting them, and analyses their situation through the light of an objective and legal procedure. The fieldwork made by Glenda Garelli and Martina Tazzioli shows that migrants undergo identification procedures and have to follow procedures, which clearly aim at impeding the highest number of refugees from claiming asylum. They told the story of a group of Gambian migrants, who arrived from Libya, and spent five days in the reception centre on the island of Lampedusa. The procedures they had to undergo disregarded their fundamental rights. Indeed they were “forced to sign a paper they were unable to read as it was written in a language they did not understand”.

Moreover, they said that they did not have real access to any asylum procedure, contrary to migrants from other nationalities with higher political risk such as Eritrea. This discrimination based on the nationality is illegal.

Each migrant has a right of access to asylum procedures, and not only those who come from a country with a high rate of international protection. However, this discrimination based on nationality is actually elaborated by the EU institutions: only those who “come from countries with more than 75% of international protection recognition might be eligible for relocation to other EU countries”. These potential refugees are opposed to “economic migrants” who are to be deported. The process used to separate them is highly questionable, since it is partially based on a multiplechoice question that migrants must answer.

The four choices are “to work/ to escape misery/ to escape for other reasons/ for family reunification. As we can see, these answers are misguiding for the migrants since none of the choices clearly suggest “to flee from political persecution”. Plus the reasons can be multiples and cannot be restrained since “forces” migration and “economic” migration are often intertwined, and the reasons to flee the country of origin are multiple.

Finally, the agent of the Ministry sometimes decides himself which box should be marked. (Garelli, Tazzioli; 2016)

In sum, the cooperation between Italy and Libya only fulfilled the countries interests without taking into account the rights of migrants. Despite being a signatory of the Geneva Convention, Italy openly cooperated with Libya, without respecting the main principles of international law. Once again, the political discourse which focused on the fear toward migrants, and the emergency of the situation has been very efficient since the condemnation by the European Court of Human rights did not dissuaded Italy from disregarding migrants rights. Worst, Italy functioned as a trailer blazer of the European Union policy, as it played an important role in the establishment of a EU- Libyan partnership, since Italy pressured the EU to abolish the EU embargo against Libya, and has encouraged the EU to cooperate with Libya.

THE EU COOPERATION

The fear of immigration to the EU increased in 2002, when Gaddafi opendoor policy started to attract large numbers of immigrants to both Libya and the EU. Libya started to be a major transit country for people coming from Sub-Saharan Africa, since the number of migrants reaching Italy skyrocketed from 2500 to about 20 000. (Hamood, 2008); (Nyberg Sorensen; 2006). The EU decided to cooperate with Libya, even though human rights and refugee protection were not guaranteed in Libya. The European Union started a cooperation that it did not control, and which was in opposition with the values the EU was supposed to stand for. The European Union quite simply gave up its democratic principle, as well as the cornerstone principle of international law: the right of “non-refoulement”.

On October 26th 2004 the European Council adopted Regulation 2007/ 2004 which created Frontex, the European agency for the Management of Operational Cooperation at the External borders of the Member States of the European Union. It aims at providing the EU a trustworthy coordinator in the field of external border controls and an important piece in the creation of a common EU policy for integrated Border Management.

The creation of Frontex shows that the management of migrants assumes more and more a function of control, and tends to dominate the function of protection, which is supposed to be at the core of the Geneva Institution.

Indeed, the migration policies are embodied by the image of “traffic policemen, trying to regulate the movements of human beings in the way that they do urban trafficking”. (Agier, 2011) However, to legitimize these repressive policies, Frontex has to use humanitarian arguments. Paradoxically, humanitarianism and policing are intimately linked. This paradox is highlighted by the concomitant practices of rescue and push back operations within the same geographical area.

Including humanitarian aspect in its discourse has become commonplace as it is necessary to legitimise its work. Indeed, the mission of « interception » and « intervention » would only be mandated and legitimized if they are undertaken in the name of « humanity ». The appeal of « humanitarianism » enables governments and Frontex to shield over criticism against them. As Fassin noted « moral sentiments », which are at the core of the humanitarian discourse, feed hegemonic discourse and legitimizes practices, particularly toward migrants, who are perceived as vulnerable. Anyone involved in Frontex operations has to respect a « Code of Conduct » which includes the obligation to respect fundamental rights and international protection. « The 2011 amendment to the Council Regulation establishing Frontex’s mandate, Regulation 1168/ 2011 now makes references to Frontex’s commitment to human rights ».

These moral sentiments, or norms and values, through which we define and give our world meaning, “oscillate between sentiments of sympathy on the one hand and concern for order on the other, between a politics of pity and policies of control” (Fassin 2005:365). Thus, police operations include humanitarian concerns, and the two domains of police and humanitarianism are closely linked. This symbiotic relationship between humanitarianism and policing is explained by Agier by the fact that “there is no care without control”. In the same vein, Frontex explains that « control », materialized by repressive policies, is explained by the need of catching « bad guys ».

Frontex insisted on the humanitarian aspect of its operations, making them an actor in the construction of a « humanitarian border ». To emphasize this image of the organization, Frontex produced a DVD titled « Borderlands » which explores « the complex issues of irregular migration and border control » (Frontex 2011b) and highlights the organization’s concern about human rights, the well-being of migrants, and the need to catch the smugglers that they call « bad guys ». Catching the smugglers would protect migrants, and not only European borders since it would « prevent the bad guys exploiting migrants for their own criminal ends”.

These moral and humanitarian considerations cast Frontex as a « moral actor », a « protector of human life ». It enables the organization to challenge the criticism made against it.

However, despite its discourse to legitimize its repressive policies at the Mediterranean border, an analysis of its practices shows that its mission is not only amoral, but also illegal in some aspects. Indeed, Frontex began to play a role in the cooperation with Libya from the FRONTEX LED Mission, which started in early 2007. This paved the way for Nautilius, which was launched to take on “the flow of illegal immigrants embarking from Libyan shores, to enhance knowledge of the Maltese authorities, and to increase the percentage of successfully identified illegal immigrants” (Frontex annual report 2006). Overall, a focus was made on the more active task of border controls and later surveillance, and was emphasized by a cooperation agenda adopted by the European Commission and Libya in October 2010, by which it was agreed that Libya would take back third country nationals who had entered the EU through Libya. Human rights organisations followed these negotiations with great concern since Libya, as previously mentioned, has no asylum system and is still not a signatory of the 1951 Geneva Convention. (Triandafyllidou, 2014). Worse, cooperation between Libya and the UE worsen the fate of immigrants because of the excess of zeal of the Libyan authorities. Indeed, Libyans want to show European countries that they are tough regarding immigration. “Before the visits of high ranking missions from European countries, the imprisonment of migrants and raids in the Sub Saharan neighborhood rise sharply”. (Klepp, 2010) The push back operations, by which the EU expelled irregular migrants and asylum seekers, implied that their claim would be processed in detention centres in Libya, despite the lack of an adequate asylum system there. This raises ethical and legal problems given the appalling living conditions in the detention centres, and the absence of any rights granted to migrants. The UN and civil society observers described the detention centres in Libya as “abysmal” and “unacceptable”. (UNSC 2014, UNHCR 2014 and 2015, HRW 2014, AI 2013) (Grange, Flynn (2015). The situation is particularly preoccupying for Sub-Saharan Africans who face increasing ill treatment because of the endemic racism against them, which has been exacerbated by the crisis in Libya. Italy’s and the European Union’s cooperation with Gaddafi has been detrimental for refugees, who had to endure more mass expulsions and an increase in detention (EC 2013, DPA 2008, Tripoli Post 2008, DRC2014) (Grange, Flynn; 2015)

The EU/ Libya cooperation is a direct cause of the creation of one of the most damaging detention systems in the world” (Van Aelst; 2011). “Migration provides that “illegal migrants” will be put in jail and condemned to forced labour in jail or a fine of 1000 Libyan dinars and be expelled from the Libyan territory after serving their sentence. Illegal migrants can be detained indefinitely, and then deported according to Law n° 19.

Given the inhuman conditions in the detention centres in Libya, the EU implemented programmes in Libya to improve the treatment of migrants, their living conditions, the services accorded to them, and make sure that their rights were respected in order to meet the international standards related to migration management. However, despite European assistance, the detention centres conditions were appalling, and did not respect any legal obligations and human right protection. (Richey 2012). Indeed, the European Commission reported in 2014 that in Libya “migrants, refugees and asylum seekers are “all considered to be ‘illegal migrants’ and subject to fines, retention, and expulsion” (EC 2014).

The European Union is not only culpable of fostering repressive policies, but it also fails to sanction a country’s or an entity’s failure to respect the principle of “assistance to disabled persons”. Indeed, the story of Aby Kurke is edifying. He crossed the Mediterranean with 70 migrants, and washed ashore on Libyan coasts. The migrants on the boat managed to warn the Italian authorities, and a helicopter came with supplies. However, the quantity of supplies was not enough and the helicopter just let the boats without coming back with more supplies. The Italian authorities haven’t been condemned for non-assistance to disabled persons.

In addition, Frontex is also breaching international law when it deports illegal migrants in detention centers in Libya, which are in deplorable conditions. Finally, migrants who are arrested when they illegally cross a border sometimes don’t have the opportunity to claim asylum. They are sent in a detention center directly or pushed back, in complete violation of the Geneva Convention.

The political agreements between the EU and Libya, and those between Italy and Libya were immoral and illegal but efficient from the point of view of the EU since they almost completely stopped the flow of migrants from Libya to Italy between 2009 and 2011. However, the West intervention in Libya, which lead to the overthrow of Gaddafi would cast doubt on the continuity of these agreements. Thus, just as Italy, the European Union feared an increase of immigration in the aftermath of Gaddafi’s overthrow, especially because of the complete destabilisation of the country in the aftermath of the intervention.

The West intervention, launched for humanitarian purposes, completely failed at stabilising the country and at securing civilians, since the death toll has been multiplied by 10 in eight months, after the beginning of the NATO intervention, and the number of dead in 8 months – from the beginning of the NATO intervention, to October 2016, ranged from 10 000 up to 50 000. Because of the political mess, Libya is no longer a final destination for migrants, who have no choice but to flee the country. The numbers seem to speak for themselves since “the number of migrants taking to the Mediterranean from Libya was mostly below 40 000 per year since early 2000, and skyrocketed in 2014, when 120 000 arrived in Sicily, mostly from Libya (as compared to 37 000 the year before”. Thus, the increase of migration from Libya to Europe would increase because of the war, but also because the European Union did not have a clear interlocutor to cooperate regarding migration issues. For these reasons, the EU tried to implement the same agreements as the ones that were negotiated with Gaddafi. A focus was also made on negotiations with Libyan authorities to prevent politically-driven militias to smuggle human beings across the Mediterranean.

In early 2011, the EU launched a “partnership for democracy and shared prosperity with the Southern Mediterranean”, and the EU aided Libya, giving the country 95 million Euros, mainly to help it controlling its borders.

(Gaub, 2014) In May 2013, EUBAM was launched to help Libya increasing “security of Libya’s land sea and air borders”.

EUBAM has a budget of 26 million euros, and trains 500 Libyan military personnel who will guard the Libyan air, sea, land border. (European External Action Service, 2015). EUBAM was deployed with the aim of supporting the Libyan authorities in improving and developing the security of the country’s borders », through the transfer of know how, advising and mentoring. EUBAM Libya would also advise the Libyan authorities « on the development of a national Integrated Border Management (IBM) strategy.” (Ibid) Moreover, the push back operation “Triton” which replaced the Italian operation Mare Nostrum show that the same practices as the ones implemented under Gaddafi are on the agenda.

Overall, Italy and the EU managed to resume cooperation with post Gaddafi Libya. Concerning migration policies and practices, the Libyan revolution and the West intervention do not seem to have affected these agreements, nor the discourse used to better justify these repressive policies against migrants.

Less than a year after the beginning of Operation Triton, a shipwreck in the Mediterranean lead to the death of 800 people, on 19th April, 2015, along the Libyan coast. The French President François Hollande said the shipwreck was the worst humanitarian catastrophe that happened in the Mediterranean, and called the smugglers “terrorists”. Once again, the obligatory emotional discourse, in the aftermath of the shipwreck, was instrumentalised to criminalize the smugglers, instead of acknowledging Europe’s own responsibilities toward the migrants. The ten emergency measures taken to face the migration crisis in the Mediterranean follow this security driven approach.

The European Commission decided to catch and destroy the crafts used by the smugglers, increase the collaboration to dismantle their operations, to take the migrants fingerprints, implement a programme to return quickly the migrants in irregular situations. If the original draft resolution went as far as authorizing the EU forces “to sink smugglers vessels after seizing them”, the final document vaguely and imprecisely aimed at protecting innocent migrants by saying that “that action on disposal must be taken "with due consideration of the interests of any third parties who have acted in good faith. However, this sluggish concern of migrants’ rights and dignity merely hide the EU hypocrisy and selfish attitude.

Quite hypocritically, the humanitarian discourse pronounced after the shipwreck was used to justify repressive policies in order to protect Euro-

pean borders, instead of the migrants risking their lives on the craft. (Pirlot, 2015) The will to implement repressive policies can also be explained by the difficulty to count on the Libyan authorities to respect the agreements and secure the borders, given the instability of the country.

Despite the agreements made, and the missions implemented, the European Union leaders, and particularly Italy, are concerned about the lack of control of Libyan’s borders. The challenge to control Libyan borders is tremendous since Libya has a land border of 4348 km, mainly composed of desert, and a maritime border of 1770 km. The country inherited a fragmented and poorly managed security apparatus, which had poor capacity for border control. Libya’s borders are secured by Border Guard and Naval Coast Guard Forces suspected to be “either supported or heavily made up of militias, whether armed groups nominally under the state’s authority (e.g., Libya Shield) or Tebu/Tuareg tribal militias along Libya’s periphery.“ Indeed, under Law No. 11, the National Transitional Council even registered and incorporated local militia forces into the Border Guard, creating a parallel management system for national” (Cole, 2012). This situation showcases that the government failed to rein in the country’s militias, which play an important role in the country to provide security, but also harmed national reconstruction efforts.

For these reasons, bilateral donors, such as Italy have played a crucial role assisting Libya secure its maritime and land borders “through the provision of coastal naval vessels and radar technology.” Italy, France and Germany have shown support for the government, as they hope the Libya’s UN backed government could restore control of the country’s borders.

The French and the German Foreign ministers have suggested to offer training for the country’s security forces and border guards. The Italian Interior Minister told TV channel Sky TG24 “We hope Libya blocks both its northern border, from where (migrants) leave to reach us, and its southern border, through which people coming from places such as the Horn of Africa enter the country and use it as a hub to reach Europe."

However, the fear of migrants is so high that the Western countries would not let the Libyan government manage the situation itself. Thus, US, British, and French special operations forces are openly cooperating with local allies across northern Libya. Their aircrafts fly quite openly on reconnaissance missions in Libyan airspace. For Italy, but also the other European states, the military engagement in Libya is necessary to stabilise the country, and thus stop the migration flow of refugees who flee from Libya.

Moreover, in October 2015, the EU launched EUNAVFOR MED naval force

to interdict smugglers off Libya, without a UN mandate. Finally, Operation Sophia third and final step implies an intervention in the Libyan territorial waters, but hasn’t been implemented yet because of the absence of any formal authorisation from the recognized government. This mission, but also the military intervention in Libya does not have any legitimacy since the countries don’t have any legal mandate to intervene yet.

Other measures are discussed to stop refugees from coming to Europe.

The services of the high representative for European foreign affairs, Federica Mogherini discuss how the government of national union could stop migrants from coming. The Libyan authorities could implement temporary detention centers for migrants and refugees. This plan shows a clear intention to resume the former Gaddafi’s cooperation, and the EU’s will to put forward its interests first, even though its missions do not always have a UN mandate.

The French intervention has been particularly criticized in Libya, after the death, on the 20th of July, of 3 French soldiers in the East of Benghazi.

France had to recognize for the first time that French soldiers were on Libya whereas it said, until now, that France was only flying above Libyan territory to collect information on ISIS. The government of National Union accused France of interference, saying that it violated its territory.

The accusations of interference, the missions conducted without any UN legal mandate show that the EU has not learned from its past mistakes. It is also a proof of the EU disregard of Libya’s sovereignty. This neo-colonial posture shows that the EU interests would always guide its policies, even if it is not consistent with international law, and third parties interests.

The EU cooperation only took into account its own practical interests in its cooperation with Libya. The disregard of human rights and international law did not matter for the EU as long as the cooperation was efficient in preventing migrants from coming in Europe. The overthrow of Gaddafi triggered Europeans fear, who managed to resume the agree ments with the post Gaddafi regime. However, the instability of the country obliged the EU to undertake further actions in order to close the Libyan borders. The will to prevent migration at any rate, implies a disregard of the institution of asylum. Is it a proof of a shift of the nation of asylum, or the proof that asylum has never been created for migrants from the South?

A SHIFT OF THE NOTION OF ASYLUM

Overall, the European policy regarding migrations is paradigmatic of a shift of the refugee regime in Western countries, which “has been fundamentally transformed from a system designed to welcome cold war refugees from the East and to resettle them as permanent exiles in new homes, to an exclusionary regime designed to keep out asylum seekers from the South. (Castles, de Haas and Miller 2014, 227).” The demolition of the Berlin wall, represented the realisation of the basic principle of mobility as freedom, since the citizens of Eastern Europe, imprisoned in their own state during the cold war, could finally cross the border to reach the “land of freedom”. The hope of a « borderless world » which appeared after the dismantling of the Iron curtain has given way to fears, and introverted assertion of one’s identity, materialized by the building of fences.

Thus, the current treatment of refugees recalls a grim past, showing that history repeats itself, and that our democratic values are far from the reality that refugees experience today. The description of refugees’ situation made by the Jewish writer Joseph Roth’s words in 1937 are more newsworthy than ever. « You’re a transient and you’re stuck, a refugee and a detainee; condemned to rootlessness and unable to budge. » (Zahra, 2015) The supposed « freedom of movement », the ability to cross borders, and the duty to protect people fleeing war, which is at the root of the European project are refused to refugees in need of protection. Indeed, the European common system regarding asylum clearly aims at preventing and dissuading migrants to come rather than protecting people in danger.

This fierce refusal of migrants from the South showcase a clear crisis of the principle of asylum, but also of our supposed European values of democracy, equality and liberty. Indeed, the immoral and illegal external border policies of the European Union exemplify our total disregard of the values of respect, human dignity and liberty that we supposedly stand for. In the light of these practices, one can reasonably call a “European Tale” the European project that prone a social cohesion between people across borders. Indeed the European hypocrisy is perfectly demonstrated by the words of the former European Commission President Barroso and former President of the European Council Rompuy, when they stated that “Over the past sixty years, the European project has shown that it is possible for peoples and nations to come together across borders. That it is possible to overcome the differences between ‘them’ and ‘us’.” (Yildiz; 2016) The project to « overcome differences » and the will to maintain a single European identity show that the European ideology is to have an « homogenized civilizational and identitarian Europeanism » which would suppress cultural specificities and diverse identities (Yildiz; 2016). The project and the discourse that stand for a stabilized European identity reaffirm our refusal of other cultures. This hostility, towards migrants coming from the South in particular, shows that the European values are reserved to Europeans only, because of European preference for « national homogeneity ». Today, freedom of movement is reserved to Europeans only, at the expense of those outside European territory. This discrimination can best be explained by the simple fact that they are non-white and nonchristian, as shown by the words of the former British Conservative party Chairman and Member of Parliament Norman Tebbit, who made a clear distinction between « the good migrants » from Eastern Europe and the other ones: “The bigger problem that is caused in our cities is caused by immigrants from the Third World who have got no intention of integrating here…They are people who left their country, came here and are trying to recreate their country in our country.” (Zahra, 2015) Contrary to Barroso’s and Rompuy’s optimistic statement, it is clear that the European external border policies showcase another kind of bordering, which reaffirm the differences between “us” and “them”. This rebordering process is not only rooted in geographical lines but in the act of political imagination “which constitutes Europe as a bounded, self-contained region/ entity, distinct from and confronted by an external world of similarly, but far less well governed entities”.

Thus, the chaotic image of the “South”, always portrayed as a troubled and chaotic region, in opposition to the North frightens the Europeans who see the migrants as a threat for their security, their economy, and their cultural identity. Consequently, the external border of Europe is perceived as border of division, which should “protect” “us” from “them”. “Us” is portrayed as the innocent victim of an unprovoked transgression, whereas the migrants, who flee war and persecutions are perceived as a threatening intruder who violates the European territory.

The radical opposition between « us » and « them » serves the European political discourse which stigmatize a series of bad actors, including smuggling, trafficking and the like to better eclipse our own responsabilities, and our own implications in these countries. The neoliberal trade agreements, geopolitical alliances, capital investments are only a few examples of the domain which tide Europe to the South. However, these spaces of interchange never appear in the « mental maps » of illegal immigration.

This politic of decontextualisation, which also forget our colonial past, which has necessary repercussion on cultural affinities and antagonism with these countries, enable European politics to pretend that the migration issue is external to it.

This astute discursive strategy, which fixes a gap between Europeans and migrants, between a democratic, tolerant, and developed European territory, and a chaotic, troubled South, justifies, and even legitimise European fear of migrants, and their refusal to grant asylum. Thus, the principle of “asylum” enshrined in the Geneva Convention does not have any sense now, since our own protection from the unkown, and our selfish interests always seem to come first, in the name of the sacrosanct principle of national sovereignty which is reaffirmed by states by their « sovereign right of expulsion », to borrow the words of Hannah Arendt. The link between « popular sovereignty » and « national sovereignty » contributed to the rejection of migrants, and the erection of a new Iron curtain between Europeans and the Third Word. Freedom of mobility has been decided to be the exclusive privilege of Christian Europeans, at the expense of everyone else.

CONCLUSION

The humanitarianism discourse is a political strategy which has been used by the European Union to justify -or at least pass over in silence- the illegal aspect of its cooperation with Libya regarding migration. The EU has managed to frame the reality through its own words and perceptions to better justify its policies. Thus, the discourse has been an effective “site of power” by creating its own “regime of truth. (Rabinow, 1991).

The humanitarianism discourse, used by the EU, appeared generous to ward refugees, while still limiting the numbers of refugees to a very low number. At the same time, this discourse aimed at tarnishing the image of migrants who were referred to as « illegal migrants » « bogus refugees » and the notions of «safe third country », « safe origin country », « first country of asylum » in order to legitimize its multiple efforts t prevent migrants from obtaining asylum. Indeed, asylum can be refused if a country estimates that the migrant could have claimed asylum in another country according to the Dublin treaty, or if the asylum seeker story is suspected to be fake. The push back operations, and the outsourcing of detention centres are also a proof of the retraction of the right of asylum, rather than a mere externalisation. In addition, the guarantees offered to the asylum seekers are restricted since asylum seekers can be incarcerated when its demand is inspected, in certain circumstances. (Lochak, 2013)

The repressive and illegal policies have been overshadowed by the humanitarian discourse which made sure to appear generous toward refugees in the aftermath of massive shipwrecks publicised by the media.

This “generosity� is substituted to the rights migrants are entitled. Instead of being good practitioners of law, Europeans resort to exceptions and charity to a few, emphasising the unprecedented refugee crisis. Whereas the refugee crisis has been used to justify emergency measures which undermine migrants rights, this study has shown that the current migration policies has actually followed the same hard line for fourty years, during the Gaddafi regime, and in the aftermath thanks to new agreements concluded with the post Gaddafi Libyan authorities. The will to intervene in Libyan territorial waters, and the continuous disregard of migrants rights show that the selfish interests will always come first.

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