21 April, 2022
by Sam Biden, Global Leadership Fellow
Current State instability
Libya’s security has been precarious since the collapse of Muammar Gaddafi’s rule. Political instability rose against the backdrop of the fall of his regime. Successive (and often parallel) Libyan governments had an unwillingness or inability to control armed groups within the state, many of whom have been accused of torturing, depriving liberty and trafficking irregular migrants.
Political and military factions have now been competing since 2014 for control of the state, leading to the officially recognised government alongside the rival Libyan National Army – both of which are heavily reliant on substate armed groups for their authority. Additionally, despite its battlefield defeat, the Islamic State has retained a strong presence in Libya. The net result of this diffusion of power has been an inconsistent application of State legislation, especially migration laws. Although it was passed a year prior to Gaddafi’s overthrow, the legal basis for much of the current struggle was codified in 2010 with the passing of Law No.19 on Combating Irregular Migration (Law No.19) while Gadaffi was serving as the Chairperson of the African Union. There are a number of terrifying provisions contained in Law No.19. Most notably are; immediate fines and hard labour for all illegal migrants, fines and criminal sanctions for helping illegal migrants and immediate detention upon capture while awaiting trial. As the refugee crisis from Central Africa continued to develop while continental stability decreased, Law No.19 was potentially kept in action to prevent this ongoing crisis from overwhelming the country. The presence of terror attacks, political instability, rampant spreading of COVID-19 and other diseases as well as decreasing human rights protection in Angola, Cameroon, Chad and Congo have led Libya to become a central hub for access to a better life in Europe.
This law was most in action in the past year, resulting in over 26,000 migrants being intercepted at sea by Libya, including a mass raid in October 2021, leading to the arrest and detention of over 5,000 irregular migrants. Overall, an estimated 576,000 irregular migrants reside in Libya as of February 2021. As of June 2021, less than 10% of these predicted numbers have been registered with the UNCHR.
Migration flow relates to the geographical movement of migrants. For example, efforts to enter North America through South America are the dominant migrant flow in the Americas as there is direct access between the two continents. For Libya, the Central Mediterranean route through Italy has become a staple of EU mass migration. As the most popular route today, Libya has become a ‘jumping point’ allowing for the flow of migrants from Central and North Africa to reach Europe. Many of these refugees arriving in Libya are coming from Sudan, Niger and Algeria. Because of the popularity of using Libya as a stopping point for EU access, the government has taken drastic, draconian and devastating measures to deter this from happening.
Detention Centre Conditions
As a precursor to what would become major international concerns regarding detention conditions, a set of poor administrative decisions would occur. Many detention centres would be forced to close, including the Karareem centre in Misrata, causing hundreds of migrants to be forcefully removed and transferred to more dangerous facilities with worse conditions. Further closures occurred in Tajoura and Khoms after a public outcry as to their conditions. While the closures may seem somewhat positive, this led to overcrowding in the remaining facilities. With this new challenge, severe mistreatment, abuse and refusal of essentials for detainees would become commonplace.
1. Inhumane conditions
Many detainees were forced to sleep in overcrowded rooms, this overcrowding also meant that many had to wait hours to use the toilet. These small cells and rooms are very unhygienic with very limited access to fresh air and sunlight. Even when guards were asked if detainees could have access to fresh air and sunlight, the requests were not accepted. This malicious attitude from the guards only extended into their other duties. They allegedly deprived many of the detainees of food and water even if they were in desperate need. When small amounts of food were given out it had to be shared between large groups of people, causing many to have symptoms of starvation. The facilitation of connections with the outside world was heavily regulated. Limited contact with families was permitted, this included restricted access to any forms of communication with the outside world. One of the only reasons communications were allowed was so that ransom for the release of the detainees could be paid. Because of this lack of contact as well as the ill intent of the detention staff, appeals against detention were a near impossibility.
This ignorance towards providing basic necessities eventually caused a surge in medical complications within the facilities. Access to medical care was very scarce. Many of the detainees contracted dangerous diseases such as scabies and TB, coupled with physical injuries that also went untreated. With the outbreak of COVID-19, the overcrowded, poorly ventilated detention centres became a breeding ground for the spread of the disease. Without adequate testing and an administrative reluctance to provide medical aid, many people suffered from missed COVID diagnoses. The most drastic of medical complications arose when two unexpected, yet preventable deaths occurred. Three women were detained at Shara’ al-Zawiya detention centre. They claim to have seen two babies arrive at the facility in poor condition. They grew increasingly ill and sadly passed away because of this, if they had received medical aid, perhaps their lives could have been saved. Individual testimonies paint a similarly distressing picture.
Dawit, a 23-year old Eritrean man spoke of his time in detention. He claims that at first he was given bottled water to drink, yet this stopped immediately. He was forced to drink tap water and in extreme circumstances, toilet water. He claims they never had any change of clothes and that when they washed their only clothes, guards would take them outside and throw them away. Kareema, a 27-year old woman from Somalia made similar claims. She states that she only received food once a day and that beatings were regular. She claims ‘death would have been better than that’.
2. Sexual Crimes
There are a plethora of reports of sexual assault, rape, trafficking and sexual violence within at least seven detention centres. Many of these reports are to do with the exchange of sexual favours for basic necessities such as food and water, creating a pattern of systemic, exploitive sexual blackmail.
In one such instance, a group of teenage migrant girls have accused the guards at the Shara al-Zawiya facility of sexual assault. A 17-year old Somali girl claimed she had been raped by guards at the facility, many other girls shared similar stories. Another 16-year old claimed that she was being sexually harassed by the guards only days after arriving at the facility. She claimed that they do this every day and that if you resist “you will be beaten and deprived of everything”. Yonas, a 39-year old woman claimed that upon arriving at a detention centre in Tripoli that she saw two guards trying to rape 13 and 15-year-old girls. She intervened and received harsh punishment for doing so, being beaten for speaking out. Sara, a 23-year old woman claimed that the guards in the detention centres can do whatever they want to women and girls without any consequences. She explained that when women would explain they were hungry, they would be raped in exchange for bread, this was a widespread practice.
In a ground-breaking report from Amnesty Int, they explored gender-based violence and rape in these detention centres. They found that only a single detention centre employs female guards, this being Tariq al-Sikka. They correlate the lack of female authority with the increased rate of gender-based violence and assault that takes place. They spoke to six women who were detained in Shara’ al-Zawiya between January and May 2021. They corroborated prior testimonies that sexual favours were made in exchange for services, the women also spoke of it being used as a method for early release. One interviewee, ‘Mary’, stated that women had confided in her that they were being trafficked for sex work in Libya. Women who were forced into these were pulled from the detention centre by men in blue, nondescript military uniforms. These horrific, exploitive methods caused the attempted suicides of two young Somali women in Shara’ al-Zawiya, they cited torture, rape and other harassment as primary driving factors.
Violations of International Law
1. Maputo Protocol – Article 3 (Right to Dignity of Women)
The Maputo Protocol is a supplementary document alongside the African Charter on Human and Peoples’ Rights to which Libya are a ratified party. The Protocol specifically deals with the rights of women and how they must be upheld, it’s very much the African equivalent of CEDAW in relation to the ICCPR/ICESCR. The pinnacle Article of the Protocol guarantees the right to dignity. Specifically, it guarantees the protection of women from all forms of violence, particularly sexual and verbal violence. The detention centres are under the control of the Directorate for Combatting Illegal Migration (DCIM), a government body established by the Government of National Unity. Because of this relationship, the DCIM is directly accountable to the government and the government is directly accountable to multinational judiciaries such as the African Court on Peoples’ and Human Rights and International Criminal Court (ICC).
The extent of sexual misconduct and assault is clear. It is not merely representative of a small, isolated paradigm of independent yet individual actors. It functions in the opposite manner, acting as a representation of a widespread and systemic practice that’s hardwired into the detention centre system. This deep-rooted practice engages commentary made against Libya by the United Nations General Assembly (UNGA) in 2011. In Resolution S-15/1, the UNGA called for the immediate upholding of all fundamental freedoms by the Libyan government in response to the deaths of hundreds of civilians. The same call can be made with regard to the violations of women’s security in detention centres. Because of this, the Libyan government has violated the Right to Dignity in the Maputo Protocol.
2. Rome Statute – Article 7 (g) (Crimes against Humanity)
Alongside the prior violation is a possible evaluation of the sexual crimes as a crime against humanity. Article 7 (g) of the Rome Statute defines these as rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
There are numerous testimonies referring to rape, sexual assault, harassment, misconduct, slavery and trafficking in the detention centres. These conclusions are notepad in the Final Report on Libya by the Global Initiative. They found that most female migrants in Libya are already being trafficked for sexual exploitation. Alongside this, the forced closure of detention centres after allegations of sexual assault by the United Nations Support Mission in Libya (UNSMIL) only solidifies the claims. UNSMIL is a special mission aimed at monitoring and implementing comprehensive measures aimed at restoring stability to Libya. Their most recent objective emphasised responses to sexual violence and misconduct within Libya.
With similar logic to the Maputo Protocol assessment, it’s the widespread nature of the offences that constitute the existence of crimes against humanity. Adding further credence, international attention has been brought to Libya regarding sexual offences since the establishment of UNSMIL. Despite this, little has been done and the enacting and enforcement of Law No.19 has only exacerbated the situation.
3. UDHR – Article 5 (Freedom from Torture)
Freedom from torture and inhuman or degrading treatment is an absolute prohibition of international law. This means that there is no situation where this right can be derogated from. Reports of overcrowding, limited food and water, limited medical access, poor ventilation, beatings and sexual assault all lead to the conclusion that the detention centres are operating in an inhuman manner. The torture threshold is very high but there is potentially a case to be made. Claims of torture have been made yet there is no concrete proof surrounding this that can lead to a genuine conclusion. What can be said for certain is that the combination of living conditions and treatment does certainly amount to inhuman treatment.
4. Refugee Convention – Article 31 (Penal Sanctions)
Article 31 stipulates that penal sanctions against individuals entering a State cannot be made when they are fleeing a State where their life or freedom was being threatened. Given the current serious instability of Central Africa in which 1.9m people have been displaced due to armed groups and State conflicts, entry into Libya is predicated on a well-founded fear. Therefore, the legality of Law No.19 is very simple to conclude. In efforts designed to deter irregular migration, Libya has adopted penal sanctions as an automatic response. This automatic response operates distinctly from the conflictual reality that is plaguing Africa, this has caused many innocent people to be treated as criminals rather than asylum seekers and eventually refugees.
The current and future state of detention centre conditions in Libya is of international concern. The categorisation of asylum seekers as criminals let alone those who are not entitled to dignity is a flagrant violation of the fundamental principles of international law. General recommendations could be:
- The establishing of an anti-sexual assault Committee within Libya with jurisdiction to independently investigate all detention centres. They can report directly to the African Union Committee on Human and Peoples’ Rights.
- Requirements for a minimum amount of female officers within each facility.
- A more equal split of groups amongst the centres, focusing on keeping families together. This split could reduce overcrowding. If overcrowding persists, communal living must be considered as an alternative.
- Action plan for the revamp of all facilities in such a way that they provide proper ventilation, toilet facilities, food and water as well as adequate beds.
- Immediate resolution that condemns the ongoing abuse by guards in the facilities with an aim to prosecute and replace all those found guilty.
In conclusion, Libya has adopted a quick mechanism for the handling of irregular migration that has become very popular in recent decades, most notably with the US and Australia. While the mechanism ensures direct and immediate control of irregular migration it operates in a manner inconsistent with international refugee law. The combination of penal sanctions alongside neglectful treatment of asylum seekers is nothing short of inhumane, let alone lawful. To combat this, Libya must ensure the safe and effective handling of irregular migration that focuses on guaranteeing safety for those fleeing and not immediately labelling them as criminals.