❝I was arrested by the Libyan Coast Guard when trying to reach Italy. This is my second month in detention and still don't know how long I am going to be here....❞
❝ I saw a Chadian man, they shot him for no reason in front of me. They took him to the hospital but he died in prison after they brought him back. In the records, they said he died in a car accident. I know because they made me work [for free] all day in the filing room ❞ [ Asante, 19 ( Eritrea ), Abu Salim Detention Centre ]
Libyan Detention Centers • A Legal Analysis
Migrant detention: the United Nations Refugee Agency (UNHCR) defines "migrant detention" as “the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centers or facilities.”
Detained person: The Office of the United Nations High Commissioner for Human Rights (OHCHR) defines “detained person” as any person deprived of personal liberty except as a result of conviction for an offence.”
International migrant: The OHCHR defines an "international migrant" as “any person who is outside a State of which he or she is a citizen or national, or, in the case of a stateless person, his or her state of birth or habitual residence.”
Refugee: The 1951 Refugee Convention defines a refugee as “an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”
Detention of migrants in Libya is no post-2011 phenomenon. The detention centers, which are referred to by Libya as “holding centers” were established in the early 2000s, to deter migration to Libya and Europe. The modus operandi of the centers are punitive by nature. Dentention in the centres results in deprivation of freedom, devoid of proportionality and restraint.
Irregular migrants, economic migrants, refugees and asylum seekers are indistinguishable in Libyan law, and are all considered “illegal migrants”. They are vulnerable to arbitrary arrest, where they are placed in detention centers regardless of their immigration status. The detention centers themselves are described as hellish and unlivable, and an environment in which they suffer various forms of ill treatment.
The international community has turned a blind eye to Libyan migrant detention centers for more than a decade. Since the early 2000s activists and organisations, such as UNHCR, have been urging the international community, most importantly the EU and Italy, to refrain from cooperating with Libya until Libya complies with international human rights standards. Yet, the EU has strongly relied on Ghaddafi’s authoritarian regimes for their own border control.
❝ It is estimated that 700,000- 1 million migrants were inside Libya at the end of 2016, many of whom have at some time been detained.❞
Although detention abuse existed prior to the 2011 revolution, the civil war which ensued exacerbated the situation, leaving 500,000 Libyans displaced. In addition to this, the civil war and regional instability brought Libya’s economy to the floor, which in turn created greater animosity toward migrants. The resultant fractured government became occupied with militias, smugglers, and state and non-state actors.
Against this backdrop of chaos, the lack of border control post-2011 established Libya as a popular transit country, particularly for Sub-Saharan migrants and refugees, eventully making their way to Europe via the Mediterranean Sea. It is estimated that 700,000- 1 million migrants were inside Libya at the end of 2016, many coming into contact with detention centers.
The lack of a migration framework in the country has, effectively, given state and non-state actors control within migrant detention centers. This has left migrants with a lack of safeguards to protect their human rights. In addition, the cooperation between the EU, Libyan coastguard, and Directorate for Combatting Illegal Migration (DCIM) has enabled and normalized the abusive practices towards migrants and refugees within Libya.
1980s: Ghaddafi endorsed a campaign called “physical liquidation.”
The campaign proclaimed that all opponents of the Ghaddafi government were enemies of the state, and should be punished for their lack of patriotism. “Opponents” were considered to be any person residing in Libya or Libyans residing outside of Libya who condemned, or disagreed with Ghaddafi policies. In this time arbitrary arrest, incommunicado detention, indefinite detention, exterritorial executions and disappearances were prevalent.
1988: Under pressure from activists and NGOs such as Amnesty International, Ghaddafi freed 400 political prisoners, many whom were placed in prison for peacefully protesting.
During this year, the Lockerbie bombing incidents took place.
1989: Libya ratified the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR).
This allows individuals to make a petition against the state if their rights under ICCPR have been violated. These rights include rights to due process and fair trial. Libya also ratified The Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT). CAT holds state parties to the negative obligation of non-refoulment and against torture.
❝ Despite Libya’s progress in ratifying the ICCPR and CAT, human rights organizations such as Amnesty still reported that Libya had continued to practice arbitrary detention and physical abuse in prisons.❞
1991: Law No. 20 on the Promotion of Freedom was created.
Law No. 20 of 1991 “Prohibited the refoulement of political refugees and the ill-treatment of prisoners.”
1992: UN resolution of an arms and traffic embargo were placed to sanction Libya for its un-cooperation in the Lockerbie case.
1996: The Abu-Salim prison guards in Tripoli were responsible for the mass killing of 1200 prisoners within 2 days.
Families of the prisoners have stated that their family members had not been granted due process and were detained incommunicado.
2000: As the Libyan economy worsened, Africans were scapegoated for the lack of jobs and criminal wrongdoings which happened in Libya.
Racism and Anti-African violence erupted, which led to hundreds of African migrant workers, many from Ghana, Chad and Nigeria, being killed, abused and detained. Many were taken from their homes, streets and
“herded into trucks and buses, driven in convoy towards the border with Niger and Chad, 1,600km (1,000 miles) south of Tripoli, and dumped in the desert.”
2003: Libya made steps to restore its international relations.
Libya accepted responsibility for the Lockerbie bombings of 1988; The UN sanctions were lifted through UN Resolution 1506.
2004: The Council of the European Union sent representatives to Libya to “to examine arrangements for combating illegal migration.”
Libya and Italy began a conversation regarding “illegal migration”. It has been speculated that secret agreements took place and Italy is alleged to have financed a migrant detention centre in Tripoli in 2003. Italy is
also allegedly responsible for financing the detention centres in Sabha and Kufra.
2005: The EU and Libya agreed to a “systematic operational co-operation between the respective national services responsible for sea borders.”
The EU sent a liason to help intercept migrants en route to Europe, and provide training to Libyan coast guards. The director of the Italian secret service told the Italian Parliament that:
❝ Undocumented migrants in Libya are caught like dogs and placed in overcrowded facilities that are in such a poor state of repair that policemen must wear a dust mask on the mouth because of the nauseating odours.❞
2007: Libya began to take repressive measures against migrants.
Libya issued a visa requirement for all nationalities including all Arabs and Africans. “Additional Technical-Operational Protocol” was created between Italy and Libya as part of the Friendship Pact. The Protocal was created to establish a joint patrolling of the sea.
2008: Italy and Libya signed The Treaty of Friendship, Partnership and Cooperation between the Italian Republic and Great Socialist People’s Libyan Arab Jamahiriya.
The pact called for “intensifying cooperation in fighting terrorism, organized crime, drug trafficking and illegal Immigration.” The parties agreed to assist Libya in controlling migration by funding Libya with 50
billion Euros. Italy turned a blind eye to reports that indicated that Libya was practicing arbitrary migrant detention, and migrant abuse. The President at the time, Silvio Berlusconi, stated “We don't want Italy to
become a multiethnic, multicultural country. We are proud of our culture and of our traditions.”
2009: Italian coastguards intercepted a boat of migrants, and without determining their migration status, the “Italians disembarked the exhausted passengers on a dock in Tripoli where the Libyan authorities immediately apprehended and detained them”. This was the beginning of Italy’s “push-back” practices. From May to September 2009, Italy had intercepted and returned 1,000 migrants to Libya.
The Italian Minister of interior called this a “historic achievement after one year of bilateral negotiations with Libya.” By doing this, Italy violated its international responsibly of non-refoulement under the 1951 Convention.
Libya is not a state signatory to the 1951 Convention, and criminalizes migrants in Libya. Any refoulement of migrants to Libya would find a state in breach of its international obligations. Italy also violated its obligation of non-refoulement held in Art 3 of the European Convention of Human Rights. At this time Amnesty International and Human Rights Watch had reported that Libya had committed a myriad of human rights violations against migrants inside dentation centers. The Italian president responded that non-refoulement did not exist on the high sea, in which UNHCR responded by stating:
❝ The principle of non-refoulement does not imply any geographical limitation. In UNHCR’s understanding, the resulting obligations extend to all government agents acting in an official capacity, within or outside national territory. Given the practice of States to intercept persons at great distance from their own territory, the international refugee protection regime would be rendered ineffective if States’ agents abroad were free to act at variance with obligations under international refugee law and human rights law.❞
Amnesty confirmed that there were 16 detention centers in existence in Libya, and that they were under the authority of General People’s Committee for Public Security. They also claimed that the Department of Public Prosecutions made visits to the detention centers, as they would Libyan prisons, treating detention centers with the same standards as prisons.
In August 2009 it was reported that detention guards from Ganfouda Detention Centre opened live ammunition on 200 migrants who sought to escape.
2010: UNHCR was expelled from Libya without explanation.
Mussa Kussa, General Secretary of the People’s Committee of Foreign Liaison and International Cooperation, was quoted saying: “There are six million Libyans and we have two million illegal immigrants, this problem is really on the shoulders of the Libyan people...We are working as guards to the EU, and Libya might not be able to continue doing this.”
2011: Revolt against Ghaddafi; Clashes between security forces and anti-Ghaddafi opponents; NATO bombings; Ghaddafi is captured and killed.
2012: The European Court of Human Rights pronounced that Italy had violated Article 3 (non-refoulement) of the European Convention on Human Rights.
They also pronounced that the Friendship Pact between Italy and Libya was unacceptable, and against Italy's international human rights obligations.
2013: The Libyan Ministry of Interior allowed Syrian nationals to confirm their status as asylum seekers to enable UNHCR to register and provide them with access to medical and educational services.
This status was not afforded to African migrants or asylum seekers.
2014: Embassies and NGOs such as the UN evacuate Libya due to civil strife and instability; protestors storm parliament; launch of Operation Dignity in Benghazi; launch of Operation Dawn in western Libya.
2015: Operation Sophia, a European Union naval mission, was launched to hinder migrant smuggling in the Mediterranean Sea; High Sea UN Resolution 2240 passed, giving Operation Sophia the authority to be present in the high seas and Libyan waters, in pursuance of stopping human smugglers and trafficking.
Libyan coastguards have been known for inflicting abusive and inhumane treatment amongst migrants. The Director of Amnesty Middle East described the situation in Libya:
❝ The international community has stood and watched as Libya has descended into chaos since the 2011 NATO military campaign ended, effectively allowing militias and armed groups to run amok. World leaders have a responsibility and must be prepared to face the consequences, which include greater levels of refugees and migrants fleeing conflict and rampant abuse in Libya. Asylum-seekers and migrants are among the most vulnerable people in Libya and their plight must not be ignored.❞
In January 2016 the UN estimated that in 2016, 5,022 migrant lives were lost trying to cross the Mediterranean Sea from North Africa.
In June the UN returns to Libya — Operation Sophia begins — and in September Amnesty international reported that the Ganfouda district in Benghazi has left hundreds of civilians trapped in consequence of civil fighting between the Libyan National Army (LNA) and the Benghazi Shura Revolutionaries.
This restricted civilians' access to aid, food, and electricity.
By December the UN reported that Libyan coastguards had intercepted 14,038 people crossing from Libya, and had returned them to Libyan authorities in 2016; the UN also claimed that 2016 was the worst year ever recorded for the Mediterranean crossing.
2017: In March 2017 the civil war in Libya becomes more intense.
Videos show execution-style killings committed by the Libyan National Army (LNA) against members of the Libyan Shura Bengazi Revolutionaries. There is a continuous lack of no regard for civilians; civilians are used as human shields and being held hostage.
In May 8 Amnesty International calls on the International Criminal Court (ICC) to investigate possible international crimes against civilians and migrants as result of the civil war since 2011 by state and non- state actors.
In May 21 UNHCR announced that due to the deepening civil war and humanitarian crisis, UNHCR will be strengthening its presence in Libya.
Detention: Authority and Legislation
■ Detention Authority
Migrant detention centers are controlled by the Department for Combatting Illegal Migration (DCIM), which receives authority from the Ministry of Interior. Yet, in reality, the Ministry has little authority or control over the centers. An official of the Ministry admitted to the UN that: “In Tripoli there are 13 illegal detention centers, managed by the armed militia. We cannot even get close to their areas, because we risk our lives.”
As of June 2016 UNHCR has confirmed that 31 detention centers exist in Libya. 24 are under direct control by the DCIM; 11 of the centers have protection from the Libyan Task Force, which receives support from UNHCR, IOM, and the Danish Refugee Council; 7 of the centers are either inactive, or controlled by non-state actors.
■ Detention Centres
Libya is not a state signatory to the 1951 Convention on Refugees, the multilateral treaty which sets out the responsibilities states have toward asylum seekers. However, Libya is party to the regional Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), which encompasses the very nature of the 1951 Convention.
However, Libya has not incorporated the convention into domestic legislation. This has prevented the development of a migrant governance system or institution to deal with migrant concerns. This has left authorities without a compass to guide them in upholding international norms and standards when deliberating and interacting with migrants and asylum seekers.
■ Detention in the Libyan Legal System
1. Article 6 of Law No 19 of 2010 on Combating Irregular Migration:
“illegal migrants will be placed in detention and condemned to forced labour in jail or a fine of 1000 Libyan dinars and be expelled from the Libyan territory after serving sentence.
2. Article 11 of Law No 19 of 2010 on Combating Irregular Migration:
“all foreigners residing in Libya had to legalize their stay in Libya within a period of two months after entry into force of the law; otherwise they were to be considered as illegal migrants and were to be subject to penalties (Art. 6).
■ International law:
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) specifies:
❝ No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.❞
1. Art 6 Law 19 gives authorities the right to detain migrants, regardless if they are irregular migrants or asylum seekers.
Libya, as a sovereign state can establish laws to restrict non-nationals inside its territory, withstanding its convention obligations and international norms. As a state party to ICCPR, Libya is under responsibility to ensure the right to liberty for all nationals and migrants as stipulated under Art 9 of ICCPR. The right to liberty is a fundamental right, but not an absolute right, permitting states to derogate from this right when completely necessary, and as a last resort. Yet Art 6 of Law 19 has been used as a primary measure. A report carried out by Amnesty International found that out of 50 migrants interviewed, 48 had experienced detention centers.
Rather than operating as a supplementary law, Art 6 of Law No 19 is the only authority to deal with Libya’s looming migration crisis. Libya has not taken appropriate measures to ratify the 1951 Refugee Convention, or create domestic legislation to implement its responsibilities under the Organization of African Unity Convention. This failure leaves migrants vulnerable to deprivation of liberty on account of Art 6 Law 19.
2. UNHCR's Guideline 3, establishes that detention must be authorized by national law.
Although detention is prescribed by Art 6 Law 19, the legality of a law is “not always the decisive element in assessing the justification of deprivation of liberty.” Under international norms, “Illegal entry or stay of asylum-seekers does not give the State an automatic power to detain or to otherwise restrict freedom of movement”. In syndicate with necessity of detention, authorities must have valid justification to detain. The justification of being an “illegal migrant” is unaccepted in international law. A justification would need to be based on an individual assessment of the migrant or asylum seeker. Yet, migrants or asylum seekers are rarely assessed, registered, or interviewed prior to detention. Many migrants are brought through interception at sea, or arbitrarily arrested in public spaces without questioning. The only justification that can be found for arresting is because they are “illegal”.
In a report by Mixed Migration, out of 45 migrants 21 said they were told that they were arrested for ‘illegal entry’ or for not having valid identity documents, 17 said they were not given a reason.
3. “Eritrean national, Seghen, was held in a detention centre in Ajdebia for about two months; he said that guards beat him and other detainees in the centre all the time for no particular reason; the detainees were never allowed to leave their cells and had to sleep on the floor on plastic sheets with barely room to move.”
The purpose and objective of detention needs to be clear. In the early 2000’s, as migration arrangements with Europe were developing, Libya began to develop more rigid migration policies. These policies include the
requirement of a visa for all non-nationals, including Africans and Arabs. In this time, detention centers became more prevalent. It could be speculated that the purpose for detention centers was not only to restrict
migrant flow into Europe, but also to “deter future asylum-seekers”. Punitive measures to deter freedom of movement and liberty is unaccepted under international norms. These rights should be safeguarded and “apply in
principle to all human beings, regardless of their immigration, refugee, asylum-seeker or other status."
If the purpose of detention is to restrict these rights, Libya could be in violation of the fundamental rights
of right to liberty, security, and freedom of movement.
4. Article 6 Law 19 lacks legal certainty.
There is no mention of a maximum time limit of detention, the right to contest detention, or the rights to due process. This has left the law open to be interpreted at the discretion of detention authorities. This leaves migrants with little guarantee of an outcome.
Migrants have reported that before detention they are refused a right to contact family members. They are not offered, nor given the opportunity to have, legal counsel, or a chance to appeal detention. Detention time limit is changeable; Migrants are coerced into paying their way out, and money is the only foreseeable medium for freedom.
The national law, Article 14 of Law No. 20 of 1991 on Promoting Freedoms states that migrants are entitled to contact family, and unless charged should be held for the shortest time period possible. Yet in practice, detainees have been reported to have been detained from 2 weeks to 1 year.
The North Africa Mixed Migration Task Force interviewed 45 migrants, in which they found that no migrants were “informed or had access to a lawyer; 4/45 said they were only allowed to make calls to their families and friends asking for money to be released.” These insufficient guarantees and safeguards amounts to arbitrary detention.
Under international guidelines of the UN Arbitrary Working Group, it is accepted in international law that detention becomes arbitrary once it is proven that:
a) arrest and detention was exercised under no national law, or legal authority;
b) the deprivation of liberty has led to actions which are arbitrary in character.
Although Libyan national law authorizes detention, it is exercised without proportionality. There is no balance between detaining for the purpose of the law and safeguarding migrant due process rights. The Universal Declaration of Human Rights article 9 provides that, “no one shall be subjected to arbitrary arrest, detention or exile”.
As a signatory to ICCPR , Libya is also required to provide minimum guarantees to migrants such as being informed in a language they understand for the reason of arrest (Art 9(2)), informed of any charges against him/her (Art 9(2)) and the right to due process (Art 14(2)).
In one case known to Amnesty International, an individual suspected of being an irregular migrant was convicted by a court under Law no. 6 of 1987, but the court’s sentence was not respected by the Libyan authorities.
❝ The UN Deliberations of the Working Group on Arbitrary Detention has created standards to determine if detention has led to arbitrary detention.❞
5.The UN Deliberation stipulates that detaining “must be taken by a duly empowered authority with a sufficient level of responsibility and must be founded on criteria of legality established by the law.”
Detention centers are run by DCIM, which is under the authority of the Ministry of Interior. Evidence have been found that a number of detention centers are run or affiliated with militias, and smugglers. The Ministry
of Interior acknowledged to Amnesty International “that they had little involvement in the arrest and detention of migrants and that the Ministry of Interior has oversight over detention centers for migrants, but said
that since the conflict the Ministry had no capacity or resources to continue doing so.” Regional chaos has created barriers and threats preventing the Ministry from taking any appropriate measure to reform and rectify the administration in some detention centers. Yet, the Ministry is the de jure authority, which holds it with a duty of care toward detention centers and any abuses happening under its jurisdiction. The Ministry must be active in taking control of these centers, and not being passive to non-state actors.
In addition to this, UNHCR Guideline 8 stipulates: Proper training must be given, including in relation to asylum, sexual and gender-based violence, the identification of the symptoms of trauma and/or stress, and refugee and human rights standards relating to detention. Staff-detainee ratios need to meet international standards; and codes of conduct should be signed and respected.
6. "We had a bucket for a toilet shared between us and used in view of everyone in the room. This was emptied outside in the garden on a daily basis, one of us, usually me since I was small and thought unlikely to run away, was taken out in the early hours of the morning when it was still dark outside to empty it”( 26 year old Mauritanian male refugee detained in Adjabya in 2012-2013. Interviewed in Calais, France in November 2014)."
Detention Centers have no uniform standard for health and safety requirements. The lack of standards have led to inconsistent practices happening from centre to centre. Security Council on UNSMIL described detention
conditions as being “unacceptable”. The centers are found to be overcrowded, unhygienic, and poorly ventilated. Reports have shown that because of overcrowding, there are an insufficient amount of toilets for the
amount of migrants detained. In some facilities, two or three toilets are shared amongst 400-500 migrants. In some cases, Migrants have to use a bucket to urinate in. If bathrooms are outside “the time of visits was
limited to fixed times once or twice a day with guards refusing access at other times”. Access to showers are also shown to be scarce. Mixed Migration report showed that out of 45 migrants, only 4 had access to
showers or cleaning facilities. Sanitary products are also non-existent, such as soap or women’s menstruating products.
The Mixed Migrantion Hub report also shows that all migrants interviewed had access to drinking water but 17/45 reported that water available was either dirty, salty, provided once a day, or in one case, required pay for it. 9/45 reported receiving adequate food, which compromises of more than one meal a day.
Migrants have also reported to being detained within a cell for long periods of time, and refused access to a courtyard or denied access to any open space.
These practices are not up to par with international detention norms. The conditions lack the dignified treatment the international law requires toward migrants. International law requires that those detained must be
offered the basic necessities of “shower facilities, basic toiletries, and clean clothing.” Food and water provided must be prepared and served with consideration of “sanitation and cleanliness”. Also, the ability to
conduct some form of physical exercise as well as “access to suitable outside space, including fresh air and natural light” must be provided.
7. “I was in the foreign room with 100 women from Sudan, Ethiopia, and Eritrea. In front of us there was another room for Libyans. We could see that the room was better. The women over there had three meals, better drinking water and access to toilets while we had food once a day, the water they gave us for drinking was salty and the toilets were clogged” ( 23 year old Eritrean female detained in 2014 at an unknown detention facility near Tripoli. Interviewed in Calais/France in January 2015).
In the early 2000s, as the Friendship Pact between Libya and EU was brought into fruition, the Gadaffi regime began implementing legislation to combat “illegal migration.” In this time tolerance of migrants began to decline, and the regime took punitive measure against migrants, especially those from Sub-Saharan Africa. The regime began to deny the presence of asylum seekers inside Libya and made publicly racist comments. During Gadaffi’s visit to in Italy in 2009, he argued that African nationals who live in “deserts and forests, are motivated only by notions of wealth and a better life in Europe.”
In this time, it was estimated that 2 million economic migrants lived in Libya, and majority of them from Sub-Sahara Africa. As unhappiness toward the economic situation in Libya was growing, many placed their misfortunes on African economic workers, which fueled racism; In 2011 during the revolution, Gaddafi had recruited African mercenaries, from Niger and Mali to fight against anti-Gaddafi rebels. This placed any visibly black Africans in a vulnerable position after 2011.
In 2013, the Ministry of Interior made a national announcement that called for all Syrian migrants to confirm their status as asylum seekers. Asylum seekers are afforded with benefits such as ability to seek medical care; yet no assistance had been taken by the Ministry to assist Sub-Saharan asylum seekers to register or confirm their asylum status. Amnesty has warned that sub-Saharan African’s who have documents from UNCHR confirming their immigration status are still at risk of being arrested and detained.
Presently, widespread racism in Libya is felt amongst Sub-Saharan African Migrants. Migrants report that their race was the catalyst for being arrested and placed in detention. They are more vulnerable to abuse, and as reports have shown, Arab migrants are tolerated more than black migrants. A 23 year old male migrant from Guinea had stated to Amnesty that he was arrested arbitrarily because he was black:
❝ There were a lot of migrants in that foyer, black and white people (the white people were from Egypt, Tunisia or Algeria) and the police arrested only the blacks.❞
Once detained, migrants are exposed to verbal and physical abuse by detention guards. The degrading treatment and abuse, brought about through racism and discrimination, is prohibited in Libyan national law, and in Libya’s international convention obligations.
Libya’s Article 17 of Law No. 20 of 1991 on the Promotion of Freedom states: “It is prohibited to inflict any form of corporal or psychological punishment on the accused, or to treat him with severity or degradation, or in any manner which is damaging to his dignity as a human being”.
Article 26 of ICCPR stipulates: ”All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Libya could be found to be liable for charges of racial discrimination. Libya would have to show an objective to why black non-nationals were more prone to detention then non-nationals who were not black.
Libya is a state signatory to the Convention Against Torture and other degrading treatment (CAT). CAT is the international convention created to eradicate torture, and condemn states who practice torture. Libya is
under obligation to treat migrants with dignity, and restrict practices which are degrading. Migrants who are detained should not be treated with punitive measures, and should have safeguards which protect them from
Yet, Libya has failed to uphold these obligations, and has breached their obligations under CAT. In their February 2016 report, UNHCR stated that in Libyan detention centers “violence is endemic”,
and detention centers are ruled with an iron fist. Former detainees interviewed by Amnesty International said guards would “beat them on a daily basis using wooden sticks, hoses, electric cables and rifles as well as
subjecting them to electric shocks." Rape and sexual abuse is prolific against women; children are also detained, and vulnerable to a plethora of abuse which can be defined as torture.
The CAT defines "torture" as:
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”
3 essential factors need to be found to establish torture:
1. The infliction of severe mental or physical pain or suffering.
2. By or with consent or acquiesce of the state authorities.
3. For a specific purpose, such as gaining information, punishment or intimidation.
■ Physical and mental abuse:
Migrants have reported inhumane degrading treatment through severe physical abuse such as beatings, whippings, and electric shocks. Threats inciting violence is also commonly found. In one centre visited by Human
Rights watch, 5 detainees said that “guards suspended them upside down from a tree and then whipped them”.
Physical abuse often spawns mental abuse, because of a perpetual fear of being abused. Human Rights Watch visited 9 detention centers, where they found that “in centre after centre, detainees lined up to talk about the daily fear in which they live, wondering when the next round of beating or whipping will come.”
Abuse is used to coerce migrants to pay for detention release. Migrants are beaten while on the phone with their families, in order to put pressure on families to send release money. Release from detention centers is
conditioned the bribes of paying between 1000-2000 Libyan dinars.
These practices are distinct in relation to acts of cruel and degrading treatment. They are systematic and brought about for the specific purpose of gaining money. These acts are also being exerted in a state
institution, transforming individual responsibility to the state. Libya has not taken steps to redress migrant abuse, giving detention officials complete impunity. The systematic use of physical and mental abuse,
carried out by state officials could be found to be torture. If found, Libya has violated its obligations under CAT. They have also violated their obligations under Article 7 of ICCPC which states that “ No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
❝ The guards would beat us if we said we’re hungry.... They would make us lie down on our stomach and two would hit us with hose... I saw a Chadian man, they shot him for no reason in front of me. They took him to the hospital but he died in prison after they brought him back. In the records, they said he died in a car accident. I know because they made me work [for free] all day in the filing room,” (19-year-old Eritrean man detained at Abu Salim Detention Centre)❞
Under international law, detention centers must have female guards. Female staff must be trained and able to provide “gender specific needs." Yet, female guards are rare in detention centers, which situates female
migrants in the vulnerable position of being sexually abused. Women have reported being stripped searched, and taken advantage of upon arrival to the centre by male guards. It has been documented by migrants and NGOs
that women are prone to rape and sexual exploitation by detention officials. A Doctor interviewed by Human Rights Watch stated that women in detention centers “frequently report sexual violence and request medical
care, including abortions.”
Nourah, a detainee, described her situation inside the detention centre:
❝ There was a man who covered his face, he was the meanest. He would come into our room, with three or four other men. They would come to choose the girls. One girl, an Eritrean named Amira, they chose her every time. Every time they came for her she would cry.❞
The International Tribunal for Former Yugoslavia established that rape as an act of torture. The characteristics and conduct of rape fit the definition of torture. The Tribunal declared that:
❝ Rape causes severe pain and suffering both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting. Furthermore, it is difficult to envisage circumstances in which rape, by or with the consent or acquiesce of an official, could be considered as occurring for a purpose that does not in some way involve punishment, coercion, discrimination or intimidation.❞
Detention centers have no safeguards to protect women from rape, or from being sexually exploited by male authorities. The state authorities must oversee the conditions of sexual abuse toward women because under
international law rape is torture. Women who have reported abuse must be provided medical and psychological assistance. The state must begin investigation into such abuse promptly. Although the Ministry of Interior has
stated that they do not have complete control over certain detention centers, they still have effective control and must condemn detention officials for their practices of sexual torture, as stated under Art 5, and 12
9. Children: Libyan detention centers fail to provide safeguards to protect children who are detained.
Children are detained amongst adults and are given the same treatment as adult detainees. Unaccompanied children are more vulnerable to indefinite detention. Two children ages 10 and 13 were reported by UNHCR to have been detained for a year.
Under the United Nations Convention of a Child (CRC) children are never to be detained, the presumption should always be that detention is not in the best interest of the child. If detained, it should be “for the
shortest appropriate period of time” and the objective of detention must be for the best interest of the child. Once detained the child’s vulnerability must be taken into account. This should take precedent over the
status of a child being an “illegal alien”. Detention centers must provide the minimum safeguards which include providing children with the proper protection and assistance (Art 22 CRC); children should never be
detained with adults; children should never be separated from their parents (Art 9 CRC); If the child is unaccompanied, the child should never be detained, but must be placed in “foster care or other family home
The lack of a migration framework and the relevant institutions during the Ghaddafi regime in Libya, combined with support from Europe, has led to grave human rights abuses toward migrants and refugee seekers within the country. As a consequence, Libya has witnessed the biggest exodus of migrants since World War II.
Since the fall of Ghaddafi, Libya’s government has disintegrated; the civil war has continued since 2011; the economy has crumbled; work security is non-existent. The smuggling of migrants into Europe has been a financial resource for many Libyans, and others in the region, making migrants a hot commodity. As a result, the abuse of migrants has been heightened. However, with a staggering lack of concern for human rights, migrants have found themselves under conditions of physical and mental brutality.
Furthermore, the lack of a functioning government has allowed militias and terrorist groups to take control of territories in Libya. The open dessert landscape enables terrorist groups to train its soldiers relatively privately. These groups in turn have used migrants for their own financial gain and a myriad of abuse.
While Europe aligns itself with Libya in order to protect its own borders from migrants approaching its shores, they are turning a blind eye to the reality that has been unfolding in Libya and in turn, pushing Libya into a deeper state of collapse. It is necessary for Europe must put pressure on Libya to create a migration framework. This would be in the best interest of its borders, and would be consistent with its own international obligations.
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Legal Research & Analysis: Zaineb Hussein Edited by: Maria Jones Design: Pablo Gallego Video: Robert Y. Pelton
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