September 21, 2009

X. Libya: Lack of Access to Asylum

Libya has no domestic asylum law or asylum procedures.[110] Although Libya is a party to the 1969 OAU Refugee Convention, which espouses the right of asylum,[111] and has adopted the 1981 African Charter on Human and Peoples’ Rights, which says that all people “shall have the right when persecuted to seek and obtain asylum in other countries,”[112] it has, as yet, no formal mechanism to protect individuals fleeing persecution.

Brigadier General Mohamed Bashir Al Shabbani, director of the Office of Immigration, told Human Rights Watch, “There are no refugees in Libya. They are people who sneak into the country illegally and they cannot be described as refugees. Anyone who enters the country without formal documents and permission is arrested.”[113] When Human Rights Watch asked Al Shabbani how he knew that none of them were refugees, whether there might be one or two people among them who were refugees, and how he would be able to distinguish them from the others, he answered, “I have not come across such a case.”

His response is consistent with expressions on the subject by Libyan leader Mu`ammar al-Gaddafi, who flatly denies that migrants in Libya, or heading through Libya to Europe, are seeking asylum. He called the issue of asylum “a widespread lie.” During his first visit to Italy on June 11, 2009, he said, “Do we really think that millions of people are asylum seekers? It is really a laughable matter.” He characterized the African migrants as “living in the desert, in the forests, having no identity at all. Let alone a political identity. They feel that the North has all the wealth, the money, and so they try to reach it.”[114]

Prior to heading off to Italy in July 2009, al-Gaddafi responded to a question whether migrants pushed back to Libya from Italy could be granted asylum. He answered, “It’s absolutely not a question of asylum. Asylum concerns a limited number of people for political reasons, or after a war or natural disasters. But we’re faced with successive waves of immigration towards Europe because of the poverty which reigns in Africa.”[115]

In fact, few of the migrants interviewed by Human Rights Watch, including many who have since sought asylum in Italy or Malta or been recognized as refugees in those countries, expressed any belief that there was any possibility to seek asylum in Libya. Except for people detained at the Misrata detention center to which UNHCR and its NGO partners have regular access, none of the former detainees interviewed for this report said that they had seen or met with UNHCR while inside any of the many other jails or migrant detention centers in Libya. Given the large number of former detainees who said they were beaten if they spoke to the guards to ask for anything, it is not surprising that only one told Human Rights Watch that he asked to see UNHCR while in custody.

Libya’s 1969 Constitutional Proclamation says, “The extradition of political refugees is prohibited.”[116] In addition, Law 20 of 1991, “On Enhancing Freedom,” says, “The Jamahiriya supports the oppressed and...should not abandon the refugees and their protection.”[117]

Secretary of Justice Mostafa Abdeljalil of the General People’s Committee for Justice told Human Rights Watch that people could apply for asylum by presenting papers to the Ministry of Foreign Affairs,[118] but we could find no law that establishes such a procedure.  Brigadier General Al Shabbani told Human Rights Watch that a “new refugee law will be presented to the Basic People’s Congress soon.”[119]Human Rights Watch requested copies of the draft asylum law both during our visit in 2005, in preparation for our 2006 Stemming the Flow report, and again during our April 2009 visit and in subsequent communications with the government in preparation for this report. No copy of the draft law has been provided.

Libya has signed neither the 1951 Refugee Convention nor its 1967 Protocol,[120] but both the Convention against Torture and the African Refugee Convention[121] forbid Libya from sending individuals to countries where they face a serious risk of persecution or torture. Libya is also a state party to the International Covenant on Civil and Political Rights (ICCPR), which, under article 13, prohibits arbitrary expulsion and entitles foreigners to an individual decision on their removal/expulsion. The Human Rights Committee has interpreted Article 7 of the ICCPR to forbid refoulement of persons to places where they would be at risk of torture or cruel, inhuman or degrading treatment or punishment.[122] Under customary international law, Libya is also obliged not to return any people to places where they may face persecution or their lives or freedom are at risk.[123]

Secretary of Justice Abdeljalil implied de facto recognition of the principle of nonrefoulement when he told Human Rights Watch that Libya cannot deport Eritreans or Somalis.[124] While informally suspending deportations to Somalia and Eritrea is welcome, that is no substitute for a legal procedure to identify refugees from any nationality who cannot be returned.

 

[110]For a lengthy discussion of Libyan immigration law, see Human Rights Watch, Stemming the Flow, pp. 78-90.

[111] Convention Governing the Specific Aspects of Refugee Problems in Africa (African Refugee Convention), 1001 UNTS 45, entered into force June 20, 1974, http://www.unhcr.org/refworld/docid/3ae6b36018.html (accessed July 15, 2009).

[112]African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986.

[113] Human Rights Watch interview with Brigadier General Mohamed Bashir Al Shabbani, Director of the Office of Immigration, General People’s Committee for Public Security, Tripoli, April 22, 2009.

[114]“Immigration: Gaddafi says tide is difficult to stem” ANSA, June 11, 2009, http://www.ansamed.info/en/news/ME01.@AM48071.html (accessed July 14, 2000).

[115] “According to Gaddafi, Africans working in Europe are taking back what’s theirs,” Euronews, July 7, 2009, http://www.euronews.net/2009/07/07/according-to-gaddafi-africans-working-in-europe-are-taking-back-whats-theirs/ (accessed July 9, 2009).

[116] Constitutional Proclamation of December 11, 1969, article 11, http://www.unhcr.org/refworld/docid/3ae6b5a24.html (accessed July 15, 2009).

[117] Law 20 (1991), article 21, http://www.unhcr.org/refworld/pdfid/3dda542d4.pdf (accessed July 15, 2009).

[118]Human Rights Watch interview with Secretary of Justice Mostafa Abdeljalil the General People’s Committee for Justice, Tripoli, April 26, 2009.  When pressed, he was vague about what papers actually needed to be filed to lodge a claim.

[119]Human Rights Watch interview with Brigadier General Mohamed Bashir Al Shabbani, Director of the Office of Immigration, General People’s Committee for Public Security, Tripoli, April 22, 2009. Libyan officials gave Human Rights Watch the same assurances at the time of our visit on May 4, 2005. See Stemming the Flow, p. 23.

[120]Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, http://www.unhcr.org/refworld/docid/3ae6b3ae4.html (accessed July 14, 2009).

[121] Libya ratified the African Refugee Convention on April 25, 1981.

[122] In General Comment 20, the Human Rights Committee interpreted Article 7’s prohibition on torture and cruel, inhuman or degrading treatment or punishment to include their extradition, expulsion, or refoulement to another country. Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994).

[123] See UN Executive Committee (ExCom) Conclusion No. 25, General Conclusion on International Protection, October 20, 1982, para b, http://www.unhcr.org/3ae68c434c.html (accessed July 15, 2009); article 5 of the Cartagena Declaration on Refugees, 1984, http://www.unhcr.org/cgi-bin/texis/vtx/research/opendoc.htm?tbl=RSDLEGAL&id=3ae6b36ec (accessed March 6, 2006); and Article V of the Revised Bangkok Principles on Status and Treatment of Refugees of 2001, http://www.aalco.int/Final%20Text%20of%20Bangkok%20Principles.htm(accessed August 28, 2009). There is near scholarly consensus on this point. See Lauterpacht and Bethlehem, “The Scope and Content of the Principle of Non-refoulement: Opinion,” February 2003, UNHCR, para.216; Bruin and Wouters, “Terrorism and the Non-Derogability of Non-refoulement,” International Journal of Refugee Law, Vol.15, No.5 (2003), section 4.6; Allain, Jean, “The Jus Cogens Nature of Nonrefoulement,” International Journal of Refugee Law, Vol.13 (2001), p.538; Weissbrodt and Hortreitere, “The Principle of Non-refoulement,” Buffalo Human Rights Law Review, Vol.5 (1999).

[124]Human Rights Watch interview with Secretary of Justice Mostafa Abdeljalil, Tripoli, April 26, 2009.  His comment could also mean that Somalis and Eritreans cannot be deported because of lack of cooperation with the authorities in those countries.