A proposal by the Italian foreign minister that would undermine a Swiss travel ban on 150 high-ranking Libyans has come in for sharp criticism in Bern.
Franco Frattini said if the ongoing diplomatic crisis between Switzerland and Libya was not resolved by April 5, Italy would present a proposal to European Union foreign ministers to allow the Libyans to travel freely in Europe’s 25-state Schengen zone despite the Swiss blacklist.
Libya has stopped issuing entry visas to citizens of most European countries in retaliation for Switzerland barring entry to senior Libyans including leader Moammar Gaddafi and members of his family.
Italy has been the European nation most vociferous in calling on Switzerland to resolve the dispute by dropping its visa restrictions. In February Frattini said the Swiss decision was “taking hostage all the countries in the Schengen area”.
On Monday Christa Markwalder, president of the House of Representative's foreign affairs committee, said Italy was “putting pressure on the wrong side”.
“It should be putting pressure on Libya – not Switzerland. It’s out of order, a neighbour behaving like that.”
She said Switzerland had conformed to Schengen rules, adding that as soon as Swiss businessman Max Göldi is released, Switzerland “would discuss” lifting the travel ban on the Libyan personae non gratae.
Göldi is currently serving a four-month jail sentence in Tripoli for violating visa regulations. Fellow Swiss Rachid Hamdani, also held since July 2008, was released last month.
Frattini, a former EU Commissioner for justice, freedom and security, made the statement on Monday after a meeting in the Libyan capital with government officials.
He said the proposal would be presented to EU foreign ministers on March 22.
However, an EU diplomat contacted by swissinfo.ch said he was unsure what Frattini was trying to achieve.
“If he wants to make a new law, new laws in Europe take months. And it’s not him who decides that – it’s the Commission that decides what proposals to put on the table. He can suggest a new legislative proposal, which the Commission might pick up and work on, but it’s a long-term project.”
He pointed out that all Schengen countries could override the Swiss ban for their own territory whenever they wanted. “Italy can do that today. No new law is necessary for that,” he said.
“Now what I could imagine Frattini is doing – but I’m speculating – is that he wants to propose to all the other Schengen countries that they, along with Italy, allow these people to travel to their particular country. But each country must do this individually. It would then be theoretically possible that these people could travel to every country but Switzerland.”
For Astrid Epiney, professor of law at Fribourg University and a leading authority on European law, the legal situation is clear.
“[Frattini] can propose whatever he wants. But legally the principle is that if one Schengen state says it doesn’t want a person entering a Schengen state, this decision must in principle be respected by all Schengen states,” she told swissinfo.ch.
“So legally speaking, Switzerland has a right to say it doesn’t want people in Switzerland and consequently in the Schengen states who are directly or indirectly responsible for the treatment of Mr Göldi and Mr Hamdani in Libya. This position can be defended very well from a legal point of view.”
Frattini also accused Bern of abusing the Schengen rules – intended for criminals and terrorists – for political purposes.
The Swiss foreign ministry told swissinfo.ch it was not commenting on Frattini’s proposal, but it pointed out that Cecilia Malmström, EU commissioner for home affairs, had recently judged Switzerland to have acted correctly.
A further twist in this diplomatic drama is that April 5 – the date mentioned by Frattini – also happens to be the date that a new Schengen visa code enters into force.
This was agreed last year and involves, among other things, a visa with “limited territorial validity”, i.e. it can be issued by one Schengen state but be valid in several.
Christa Markwalder said political contact was now required on multiple levels in order for Switzerland not to lose the support of other Schengen states.
On Tuesday, however, Maltese Foreign Minister Tonio Borg called on Italy, Spain, France and Portugal to join Malta in issuing special temporary visas to Libyan travellers while the stand-off persists.
Borg explained how an “exception clause” in the new code would enable a member state to issue a limited territorial validity visa even if there was resistance from another member. This could then be extended to other countries, with their permission.
These Mediterranean countries are believed to be concerned about immigration. The fear is that the dispute could endanger a cooperation treaty signed last year between Libya and Italy, its former colonial power, under which illegal immigrants found by Italian patrol boats can be repatriated directly to Libya.
For its part, Spain reacted cautiously on Tuesday, saying it would continue its efforts to mediate between Switzerland and Libya.
Ultimately, it will depend on which side plays its political cards better. Switzerland’s visa trump could be reduced to a joker on April 5, while on Monday Libya played its powerful oil card, hinting that supplies of Libyan oil to Europe could be affected by the dispute.
“[Europe] should also think of these interests and investments in energy because good relations with Libya would help European companies run their businesses in Libya easily,” said Libya’s top energy official.
Thomas Stephens, swissinfo.ch
July 15, 2008: Hannibal Gaddafi and his wife are arrested in Geneva and charged with abusing their staff. They are released on bail and leave Switzerland. The servants are later compensated and charges withdrawn.
July 08: Swiss nationals Max Göldi and Rachid Hamdani are arrested in Tripoli. Swiss businesses are forced to shut and the number of flights to Tripoli is cut.
August 09: The Swiss president apologises in Tripoli for the arrest.
September: Göldi and Hamdani cannot leave the country despite a promise they would be freed by September 1.They disappear after undergoing a medical check-up in Tripoli. They are returned to embassy on November 9.
November: Swiss ministers say they will pursue visa restrictions for Libyans.
November: Göldi and Hamdani sentenced to 16 months in prison and fined. In January 2010 this is cut to 4 months for Göldi, and Hamdani found not guilty.
January - February 2010: Hamdani cleared of second charge of conducting business illegally. Göldi given modest fine.
February 14: A Libyan newspaper reports Switzerland has drawn up a blacklist of 188 top Libyans.
February 15: Libya stops issuing visas to citizens of nations in the Schengen zone.
February 17-18: Swiss, Libyan, Italian, Spanish and Maltese foreign ministers try to hammer out a solution.
February 22: Göldi hands himself over to Libyan authorities to start four month prison term. Hamdani obtains an exit visa and leaves for Tunisia. He arrives in Switzerland on February 23.