LFJL’s priorities at the upcoming ordinary session of the African Commission on Human and Peoples’ Rights

The 62nd ordinary session of the African Commission on Human and Peoples’ Rights (ACHPR) will take place from 25 April to 5 May in Nouakchott, Mauritania. Lawyers for Justice in Libya (LFJL) will be attending the session to promote human rights in Libya, with a particular focus on the human rights of migrants. This paper states our advocacy priorities and recommendations for this session with regard to the human rights violations that migrants face en masse in Libya.

BACKGROUND

The Central Mediterranean migration route

Although the number of migrants attempting to reach Europe through Morocco and Algeria has recently increased, Libya remains the main transit country for migrants attempting to reach Europe through the Central Mediterranean route. In February 2018, the International Organisation for Migration (IOM) estimated that Libya counts more than 704,000 migrants, majoritarily from Sub-saharan Africa.1 The Central Mediterranean route is by far the most deadly, accounting for approximately 65% of estimated worldwide migrant deaths in 2016.2 More recently, the Office of the United Nations High Commissioner for Refugees (UNHCR) stated that the journey to Italy has become increasingly dangerous: “the death rate amongst those crossing from Libya increased to 1 for every 14 people in the first three months of 2018, compared to 1 for every 29 people in the same period in 2017.”3 Last year, close to 2,900 migrants died on the Central Mediterranean route. The year 2018 already counts 359 migrant deaths.4

European states have adopted restrictive migration policies in order to push migrants back into Libya, which threaten their human rights. Migrants intercepted at sea are regularly returned to Libyan shores by the Libyan Coast Guard, pursuant to the 2017 Memorandum of Understanding between Libya and Italy in relation to border security and migration.5 Moreover, non-governmental organisations (NGOs) attempting to rescue migrants in the Mediterranean are seeing their humanitarian work hampered by European states adopting policies limiting the extent of their work, such as the NGO Code of conduct adopted by Italy in August 2017.6 The most recent example occurred in March 2018 when a Spanish NGO rescue boat, the ‘Open Arms’, refused to hand over to the Libyan Coast Guard 218 people it had rescued in international waters. The Italian authorities initiated criminal investigations against the NGO coordinator and the captain of the boat, claiming that the NGO had the obligation to hand the migrants to the Libyan authorities, on the basis of the Italian NGO Code of Conduct.

Human rights violations against migrants in Libya

In Libya, migrants are subjected to widespread human rights violations including arbitrary detention, torture, forced labour, and sexual exploitation. Libyan authorities, empowered by European migration policies, implement a system of automatic detention for migrants considered as illegal. In official and unofficial detention centres, migrants face appalling detention conditions in overcrowded and unadapted facilities as well as torture and ill-treatment. Dark-skinned migrants are particularly targeted and subjected to discriminatory treatment. In November 2017, the media network CNN reported the existence of slave auctions in Libya, where migrants are sold into forced labour.7 The facts exposed by CNN came to support the reports of slave markets already documented by IOM in April 2017.8

The ACHPR reacted to these revelations by condemning these acts, highlighting that they constitute a form of inhuman, cruel and degrading treatment and “a serious violation of the provisions of the African Charter, in particular Articles 2, 3, 5, 6 and 12, to which Libya is a party.”9 The ACHPR also expressed “its intention to undertake, in due course, a fact-finding mission to Libya.”

Unsuccessful remedies

Despite the outrage that the reports of slavery generated at the regional and international levels, the situation of migrants in Libya has not improved. The primary solution to this issue has been to facilitate the ‘voluntary’ return of migrants to their countries of origin. In late November 2017, the IOM, with support from the European Union, the African Union and the United Nations, also called the JointAU-EU-UN Task Force, set up the Voluntary Humanitarian Return scheme to provide assistance to migrants to return home from Libya.10 On 13 March 2018, IOM announced that it had already assisted more than 10,000 migrants to return to their home countries since November 2017. Another 5,200 migrants have returned with the support of African Union member states in the same period.11

However, such assistance is piecemeal and can only be, by its very nature, a short-term solution. Given the current context in Libya where migrants are facing severe ill-treatment, it seems fair to question the extent to which voluntary returns are truly voluntary and whether they do not take place in a climate of increasing pressure to return. It is essential to ensure that the decision to repatriate is truly free and informed. Voluntary return does not provide redress to victims and should not be seen as an alternative to redress mechanisms. Voluntary return may, possibly, prevent future abuses on the condition that the situation in the migrant’s country of origin is not one that would put their life at risk and encourage them to attempt the journey again. However it does not address previous abuses and violations that migrants have experienced in Libya. In fact, the lack of accountability for the crimes and harm that migrants have suffered in Libya remains critical. It is therefore essential that African states and the ACHPR take measures to ensure the protection of the human rights of migrants in Libya and provide them with avenues for redress.

Pursuant to the New York Declaration for Refugees and Migrants adopted in 2016 by the United Nations General Assembly, the international community, including the African states, will adopt the Global Compact for Safe, Orderly and Regular Migration in December 2018. This will be a significant opportunity to improve the governance on migration, including by enhancing cooperation on international migration at the global and regional levels, to address the challenges associated with today’s migration, and to strengthen the contribution of migrants and migration to sustainable development. In this context, it is crucial that the situation of migrants in Libya remains on the agenda at the African level and during the 62nd ordinary session of the ACHPR in order for African states to adopt a common position on, and durable solution to, the migration crisis in Libya and in the continent in order to express a unified voice during the negotiations of the Global Compact.

LFJL’s RECOMMENDATIONS

In light of the issues highlighted above, LFJL reiterates its call made during the 61st session of the ACHPR and urges member states of the African Union to:

• Guarantee the protection of the human rights of migrants in accordance with their international and regional human rights obligations, and urge the Libyan state to respect its international and regional human rights obligations towards refugees and migrants fully, including by ending the practice of automatic detention of refugees and migrants considered to be in an irregular situation and by taking immediate measures to release all refugees, asylum-seekers and migrants being arbitrarily detained;
• Take measures to counteract the negative perception of migration on the continent;
• Enhance access to safe and legal routes for migrants and refugees by reviewing and implementing migration policies and by urging European states to offer alternative pathways to the thousands of people in need of protection stranded in Libya;
• Ensure that all ongoing and planned operations to evacuate migrants currently trapped in Libya comply with relevant international and regional human rights obligations, including the prohibition of refoulement;
• Ensure that voluntary returns to countries of origin are made based on a free, fully informed and voluntary decision, in compliance with the principles of safety, dignity and non-discrimination, and that they promote reintegration;
• Offer effective protection, assistance and avenues for redress to migrants and their families for the human rights violations they have suffered in Libya; and
• Increase collaboration with civil society to raise awareness on the human rights of migrants.

LFJL also calls on the ACHPR, its Commissioners and Special Mechanisms to:

• Urge African states which have adopted and ratified the African Charter on Human and Peoples’ Rights to provide effective protection to their migrant populations in accordance with Article 5 which guarantees the right of every individual to the respect of the dignity inherent in a human being and protects the individual from all forms of exploitation and degradation of man particularly slavery, slave trade, physical or mental torture, and Article 12 which guarantees the right to freedom of movement;
• Encourage African states to strengthen regional implementation and monitoring mechanisms to improve national implementation of regional and sub-regional migration policy;
• Advance the implementation of safe legal routes for migrants and asylum-seekers;
• Strengthen protections for migrants, refugees and asylum seekers by providing redress for human rights violations; and
• Expediently conduct country visits in Libya and honour the ACHPR’s recent commitment to conduct a fact-finding mission in Libya to investigate all allegations of abuses and violations against migrants and refugees. 

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1 www.globaldtm.info/libya/2 IOM, Migrant Fatalities Worldwide, available at: www.missingmigrants.iom.int/region/mediterranean.3 UNHCR, Desperate Journeys, March 2018, available at: www.data2.unhcr.org/en/documents/download/63039.4 IOM: www.missingmigrants.iom.int/region/mediterranean.5 Memorandum of Understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic, 2 February 2017, available at: www.eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf.6 LFJL, ‘Italy: Stop Closing Spaces for Civil Society and Endangering Lives’, 13 July 2017, available at: www.libyanjustice.org/news/news/post/281-italy-stop-closing-spaces-for-civil-society-and-endangering-lives.7 CNN, ‘People for Sale, Exposing Migrant Slave Auctions in Libya’, available at: www.edition.cnn.com/specials/africa/libya-slave-auctions.8 IOM, ‘IOM Learns of 'Slave Market' Conditions Endangering Migrants in North Africa’, 4 April 2017, available at: www.iom.int/news/iom-learns-slave-market-conditions-endangering-migrants-north-africa.9 ACHPR, ‘Press Release on the Trafficking in Persons and Slavery in Libya’, 22 November 2017, available at: www.achpr.org/press/2017/11/d374/.10 European Union External Action, ‘Meeting of the Joint AU-EU-UN Taskforce to Address the Migrant Situation in Libya’, 14 December 2017, available at: www.eeas.europa.eu/headquarters/headquarters-homepage/37401/meeting-joint-au-eu-un-taskforce-address-migrant-situation-libya_en.11 IOM, ‘Voluntary Humanitarian Returns from Libya Continue as Reintegration Efforts Step Up’, 13 March 2018, available at: www.iom.int/news/voluntary-humanitarian-returns-libya-continue-reintegration-efforts-step.