September 21, 2009

I. Summary

On May 6, 2009, for the first time in the post-World War II era, a European state ordered its coast guard and naval vessels to interdict and forcibly return boat migrants on the high seas without doing any screening whatsoever to determine whether any passengers needed protection or were particularly vulnerable. The interdicting state was Italy; the receiving state was Libya. Italian coast guard and finance guard patrol boats towed migrant boats from international waters without even a cursory screening to see whether some might be refugees or whether others might be sick or injured, pregnant women, unaccompanied children, or victims of trafficking or other forms of violence against women. The Italians disembarked the exhausted passengers on a dock in Tripoli where the Libyan authorities immediately apprehended and detained them.

This report examines the treatment of migrants, asylum seekers, and refugees in Libya through the eyes of those who have left that country and are now in Italy and Malta.  These people, unlike their counterparts who are still in Libya, are free to talk about their experiences without fear of retribution.  The report has two purposes. First, it is intended to hold Libyan authorities accountable for their mistreatment of migrants, refugees, and asylum seekers. It therefore seeks to improve the deplorable conditions of detention in Libya and to encourage Libya to establish asylum procedures in conformity with international refugee standards. Secondly, this report is intended to hold the Italian government, the European Union (EU), and its external borders migration control agency, Frontex, accountable for any harm that befalls people who are returned to Libya without an assessment of their protection needs. It therefore is also intended to convince EU institutions and member states to stop Italy and Frontex from forcibly returning migrants to Libya where they are routinely subjected to inhuman and degrading treatment and where potential refugees are not effectively protected.

Human Rights Watch was not able to see or interview those returned to Libya following the Italian interdictions, but bases this report on interviews with 91 migrants, asylum seekers and refugees in Italy and Malta conducted mostly in May 2009 and one telephone interview with a migrant detainee in Libya. Human Rights Watch visited Libya in April 2009 but the Libyan authorities would not permit us to interview anyone in public or private places without their express permission. The authorities also did not allow us to visit any of the many migrant detention centers in Libya, despite our repeated requests to do so.

This report looks at the burgeoning relationship between Italy and Libya, which has as one of its principal components an agreement to cooperate to stop the irregular flow of third country nationals through Libya and into Italy. Italy’s interdiction regime came quickly on the heels of a new treaty with Libya, “The Treaty of Friendship, Partnership and Cooperation between the Italian Republic and Great Socialist People’s Libyan Arab Jamahiriya” (the  “Friendship Pact”), signed on August 30, 2008. The Friendship Pact called for “intensifying” cooperation in “fighting terrorism, organized crime, drug trafficking and illegal immigration.” The two parties agreed to strengthen the border control system for Libyan land borders (50 percent funded by Italy with funding for the other 50 percent to be sought from the EU), and to use Italian companies in this endeavor.

The first tangible outcome of the Friendship Pact was Italy’s transfer of three patrol boats to Libya on May 14, 2009 that were to be jointly operated by Libyan and Italian authorities. At the launch ceremony, the Guardia di Finanza commander, Cosimo D'Arrigo, said that the boats “will be used in joint patrols in Libyan territorial water and international waters in conjunction with Italian naval operations.” He added that “members of the Libyan coast guard will also be stationed at our command station on the island of Lampedusa and will take part in patrols on our ships.”

Italy violates the international legal principle of nonrefoulement when it interdicts boats on the high seas and pushes them back to Libya with no screening whatsoever.  Various international conventions bar governments from committing refoulement—the forced return of people to places where their lives or freedom would be threatened or where they would face a risk of torture. The principle of nonrefoulement is a binding obligation in international human rights law and international refugee law, as well as European and Italian law, which also forbid Italy from returning people to places where they would face inhuman and degrading treatment.  

Libya has no asylum law or procedures. There is no formal mechanism for individuals seeking protection in Libya. The authorities make no distinction between refugees, asylum seekers, and other migrants. Brigadier General Mohamed Bashir Al Shabbani, the director of the Office of Immigration at the General People’s Committee for Public Security, told Human Rights Watch, “There are no refugees in Libya.” He said, “They are people who sneak into the country illegally and they cannot be described as refugees.” He added, “Anyone who enters the country without formal documents and permission is arrested.”

During his first visit to Italy in June 2009, Libyan leader Mu`ammar al-Gaddafi said that the issue of asylum seekers “is a widespread lie.” He went on to say that Africans are “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... Millions of people are attracted by Europe, and are trying to get here. Do we really think that millions of people are asylum seekers? It is really a laughable matter.”

Human Rights Watch does not suggest that all, or even most, of the migrants in Libya or seeking to enter the European Union via Italy or Malta, would qualify as refugees, though Italy and Malta had asylum approval rates of 49 percent and 52.5 percent, respectively, for all nationalities in 2008; the Trapani district of Sicily, which includes Lampedusa, the entry point for most boat arrivals from Libya, had a 78 percent asylum approval rate from January through August 2008. Many of the boat migrants do, in fact, come from countries with poor human rights records and in some cases high levels of generalized violence. Some do indeed have credible claims for needing international protection. But beyond those with specific refugee claims, all migrants have human rights and should be treated with dignity, including those who do not have the right to enter or remain in Italy, Malta, or Libya.

In fact, few of the migrants interviewed by Human Rights Watch, including many who have since sought asylum in Italy or Malta or who have been recognized as refugees in those countries, said that they thought there was any possibility to seek asylum in Libya or knew that the United Nations High Commissioner for Refugees (UNHCR) had a presence there.

Except for people detained at the Misrata detention center to which UNHCR and its nongovernmental organization (NGO) partners have access, none of the former detainees interviewed for this report said that they had seen or met with UNHCR while inside any of the 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.

Human Rights Watch understands that since Italy’s interdiction and return policy went into effect in May 2009—bringing with it intensified scrutiny about the treatment of the returnees—that UNHCR and its NGO partners have had far more access to those returned by Italy to Libya than previously. The Libyan authorities started granting more access to UNHCR in 2008 after the organization formalized a relationship with a Libyan NGO.  Human Rights Watch welcomes increased access for UNHCR in seven migrant detention sites as well as the greater respect that the Libyan authorities appear to be according to UNHCR documents and interventions. But we note that Libya has made no formal guarantees regarding the treatment of returnees or UNHCR access to them, and that Libya has not yet formalized a memorandum of agreement for UNHCR’s presence in Libya, a standard agreement in most places where UNHCR operates.

Despite its increased access to people returned to Libya by Italy, UNHCR, on July 14, 2009, expressed serious concerns that Italy’s policy “in the absence of adequate safeguards, can prevent access to asylum and undermines the principle of non-refoulement.” UNHCR’s statement came after interviewing 82 people whom the Italian navy had returned to Libya on July 1. Many of them alleged that the Italian naval personnel did not offer food to people who had been at sea for four days, confiscated and did not return their documents and personal effects, and used force in transferring them to the Libyan vessel that resulted in the hospitalization of six of the boat passengers. Human Rights Watch learned from another source that Italian naval personnel used electric-shock batons and clubs to force the migrants off the boat, and that some of the passengers had to have lacerations on their heads stitched even before leaving the Italian vessel.

Although Human Rights Watch was not able to interview people inside Libya whom the Italians returned in the spring and summer of 2009, we believe that under the circumstances of detention in Libya and—at least under the terms of reference of Human Rights Watch’s visit—that interviews conducted outside Libya in conditions of privacy and confidentiality provide a more accurate account of conditions and treatment in Libyan migration detention centers than assessments conducted from within Libya. In fact, the last time Human Rights Watch visited Libya in 2005, the first migrant our researchers interviewed on the street was arrested one hour later. This report, therefore, is based on interviews of migrants conducted in Malta and Italy about their experiences in Libya, including after having been apprehended following failed boat departures. Many of the migrants’ allegations of ill treatment in this report are both serious and recent.  We believe such allegations are directly relevant to the question whether Italy and the European Union ought to collaborate with Libya in the preventing  third-country nationals—including potential refugees among them—from leaving Libya or in forcing people back to Libya who have succeeded in departing the country.

The most frequent abuses alleged by migrants in this report, and often the most serious, occur when they enter (or try to enter) Libya, when they re-enter Libya after a failed boat departure, or when they are being expelled from the country.  Abuses at the land borders occur on all sides: east, west, and south. Migrants are often not clear about the identity of the authorities committing the abuses, whether police or military. In many cases, migrants traveling through Libya also do not know whether their abusers are police or criminals, but often express the belief that both groups are in league with each other as each exploits and abuses vulnerable migrants.

Migrants almost universally expressed to Human Rights Watch the belief that the smugglers have close relations with Libyan officials. From migrants’ accounts, the smugglers who organize the boat departures are sometimes linked to the very forces that are charged with preventing irregular maritime migration. Whether they are involved in larger smuggling operations or not, police on the roads, particularly roads leading from the borders, as well as the police guards in migrant detention centers, routinely profit by demanding and accepting bribes as the price for release from their custody. In the case of migrant detainees, this usually involves arranging contact with the families of detainees back in their countries of origin and making wire transfers of money; it often also involves the police arranging connections with smugglers for post-release travel.

Migrants who had been detained in Libya consistently told Human Rights Watch of having lived in fear during their time there. They said they feared being robbed, beaten, and extorted not only by common criminals, but also by the police. Many told Human Rights Watch that they even feared children on the street, who often threw stones at them.

Some migrants told Human Rights Watch that they hid virtually the entire time they were living in Tripoli or Benghazi. In some cases this was because they were being held as virtual prisoners by the smugglers. But in other cases it was because they feared being arrested or being attacked on the street. As it turns out, they were safe neither on the street nor in the homes where they were hiding, as policemen or thugs would enter migrants’ homes to attack and extort, and, in the case of the police, to arrest them.

Women migrants making the journey through Libya are particularly vulnerable to smugglers and police who abuse them with impunity. Although Human Rights Watch was not able to document specific cases of rape and sexual assault, both men and women told Human Rights Watch that they frequently saw women separated from groups of migrants and that they believed the women were being taken away to be sexually assaulted.

There have not been clearly documented cases since 2004 of the Libyan authorities forcibly returning refugees to their countries of origin or to places from which they would be forcibly returned. Libya trucks migrants from the coastal areas to its land borders to deport them. Migrants from the Horn of Africa, including Somalia and Eritrea, are sent by truck to Kufra in Libya’s remote southeastern corner to be deported into Sudan. In some cases, however, they are not actually deported. Instead, according to testimony from migrants, they are left in the desert within Libyan territory. In practice, this means that such migrants have no choice but to put their lives in the hands, once again, of the smugglers who brought them from Kufra to Benghazi or Tripoli in the first place, usually abusing them along the way.

Kufra was the most frequently mentioned place of detention in Libya among the migrants Human Rights Watch interviewed in Italy and Malta. But “Kufra” does not mean a single detention center.  Although there is a government-run migrant detention center at Kufra, smugglers also operate their own detention facilities there. Migrants are sometimes unclear about which is which: some describe the government-run center as “looking more like a house than a prison;” others describe the guards at the private facilities as sometimes wearing military uniforms. Most migrants regard the smugglers and the police as working together, so, in their understanding, the distinction between private and official detention facilities makes little difference. In both cases, migrants are held indefinitely, have minimal communication with their jailers (most of which takes the form of hitting and beating), and are not released until they pay bribes. All fear being dumped in the desert.

Some migrants told Human Rights that they were held in Kufra multiple times. They were detained both when they were apprehended entering Libya as well as when they were being deported.  Often, however, the deportations are not actually carried out. Rather, migrants told Human Rights Watch that the managers of Kufra prison turn them over to smugglers, who “buy” them at one price, detain them in private detention facilities, and then “sell” them at a higher price by demanding money from their families to release them and take them once again to the cities along the coast.

This report also features migrant accounts of poor conditions and brutal treatment in other migrant detention centers throughout Libya. Although the names and locations vary, the description of conditions and treatment is remarkably similar and points to conditions that generally qualify as inhuman and degrading.

Libya must end the arbitrary detention of migrants and ensure that conditions of detention conform to international minimum standards. It must scrupulously protect detained migrants from physical abuse, including sexual and gender-based violence, and hold police and other officials accountable for any abuses, including extortion and collusion with smugglers. Libya also needs to sign and ratify the Refugee Convention and its 1967 Protocol and adopt an implementing law on asylum which includes an absolute prohibition on refoulement. With the expert guidance of UNHCR, Libya should establish an effective, fair, and lawful asylum procedure. Libya should formally recognize UNHCR and support its efforts to provide international protection for refugees, asylum seekers, and other persons of concern on Libyan territory. It should grant UNHCR unfettered access to all places where non-nationals are detained.

Italy must immediately cease violating its nonrefoulement obligations and stop interdicting and summarily returning boat migrants to Libya. It should also stop cooperating with the Libyan authorities on the interdiction and interception of third-country nationals trying to leave Libya. Bilateral cooperation should be redirected into multilateral efforts, especially through UNHCR and the office of the High Commissioner for Human Rights, to ensure that fundamental human rights standards relating to the treatment of refugees, asylum seekers, and migrants in Libya are observed.

The European Union institutions and its member states should demand that Italy comply with article 3 of the European Convention on Human Rights and cease returning migrants to a place where they are subjected to inhuman and degrading treatment. They should also call upon other member states not to engage in Frontex operations that result in the return of migrants in violation of ECHR article 3. Frontex should ensure that its operational plans specifically prohibit refoulement.

The European Union, including Frontex and individual member states, should not regard Libya as a partner in migration control efforts until it has formally ratified the 1951 Refugee Convention and its 1967 Protocol, adopted a national asylum law, formally recognized UNHCR, and until its treatment of migrants and conditions of migrant detention are in conformity with international standards. The EU should ensure that the human rights clause in the upcoming the EU-Libya Framework Agreement and any agreements flowing from it contain explicit reference to the rights of asylum seekers and migrants as a prerequisite for any cooperation on migration-control schemes.

EU member states should respond quickly and positively to UNHCR requests to admit refugees in Libya, but neither member states nor the EU as a whole should embark on any schemes that would return asylum seekers to Libya for processing or otherwise turn Libya into a warehouse for people seeking asylum in the European Union.