September 21, 2009

II. Recommendations

To the Government of Libya

On Stopping Abuses against Migrants:

  • Investigate allegations of abuse against migrants by police and by guards at facilities that detain migrants and prosecute officials responsible for abusing migrants in and out of detention.
  • Ensure that all allegations of sexual abuse are fully investigated and that women are encouraged to report such abuse.  Ensure that sufficient numbers of appropriately trained female officials are available to receive such reports.
  • Arrest and prosecute smugglers who illegally detain, extort, and abuse migrants and provide firm protection for migrants who testify against them. Investigate and prosecute Libyan law enforcement officials who engage in corrupt relations with smugglers and who commit crimes against migrants, including demands for bribes.

On Improving Conditions of Migrant Detention:

  • End the arbitrary detention of migrants, asylum seekers and refugees. Detain them administratively only as necessary for the purpose of effecting their removal. Do not deprive them of their liberty without, at a minimum: a lawful order; informing them promptly in a language that they understand of the reasons for their arrest or detention; bringing them promptly before a judicial or other independent authority for a substantive decision on the need to detain them; and reviewing periodically the necessity of continued detention. Provide detainees access to legal assistance and interpreters.
  • Improve conditions in all migration-related detention facilities; alleviate overcrowding and provide adequate food, sanitation, and health care. Protect women and children in these facilities while maintaining family unity. Detain children only as a measure of last resort and for the shortest time possible. Refrain from detaining unaccompanied migrant children jointly with adults. Do not detain migrants with suspected or convicted criminals.
  • Establish effective and accessible mechanisms by which detainees and other non-nationals facing expulsion may challenge both their detention and expulsion on human rights as well as immigration grounds. Until such mechanisms are in place, and until the conditions in which such detentions and expulsions occur, conform to international human rights standards, suspend all deportations and expulsions.

On Providing Protection for Refugees:

  • Ratify the 1951 Refugee Convention and its 1967 Protocol, and enact the asylum law that has been in draft for several years; establish a fair and lawful asylum procedure in conformity with international standards and obligations, in particular, with the inclusion in national law of an absolute prohibition on refoulement.
  • According to Libya’s obligations as a party to the OAU (now AU) Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1981 African Charter on Human and Peoples' Rights, respect in particular the AU Convention’s guarantee that “no refugee shall be repatriated against his will” and the African Charter’s assurance that all individuals have the right to seek asylum.
  • Formally recognize UNHCR and support its efforts to provide international protection for refugees, asylum seekers, and other persons of concern on Libyan territory. In particular, grant UNHCR full and unfettered access to all places where non-nationals are detained in Libya, including the right to conduct interviews in private.

To the Government of Italy

  • Immediately cease interdicting and summarily returning boat migrants to Libya.
  • Investigate allegations that Italian naval personnel beat and used electric shocks to force interdicted boat migrants onto Libyan vessels and prosecute naval or coast guard officials who abused their authority, including those with command responsibility.
  • Stop cooperating with the Libyan authorities on the interdiction and interception of third-country nationals trying to leave Libya.
  • Make public all treaties and agreements between the governments of Italy and Libya.
  • Cease to fund or provide other bilateral support to Libya aimed at increasing that country’s effectiveness at intercepting asylum seekers and migrants before they take to the sea or before they reach Italian waters. Redirect such support into multilateral efforts, especially through UNHCR and OHCHR, to ensure that fundamental human rights standards relating to the treatment of such persons in Libya are observed.
  • Ensure access to full and fair asylum procedures, including the right to raise fear of treatment contrary to article 3 of the ECHR, for every person in the control of the Italian authorities, including those interdicted or rescued at sea.

To European Union Institutions and EU Member States

  • Demand that Italy not violate article 3 of the European Convention on Human Rights by its interdiction and summary return of migrants to a place where they are subjected to inhuman and degrading treatment.
  • Ensure access to full and fair asylum procedures, including the right to raise fear of treatment contrary to article 3 of the ECHR, for every person in the control of any EU member state, including those interdicted or rescued at sea.
  • Adopt clear, consistent, and binding rules on EU member states establishing responsibility for disembarking migrants rescued at sea.
  • Refrain from expelling third-country (non-Libyan) nationals to Libya, either directly or as partners in Frontex-coordinated operations, until Libya’s treatment of migrants, asylum seekers and refugees fully meets European standards in relation to persecution or risk of treatment contrary to article 3 ECHR. Under current conditions, the return of third-country nationals breaches European nonrefoulement obligations not to return people to inhuman or degrading treatment.
  • Encourage Libya to 1) ratify the 1951 Refugee Convention and its 1967 Protocol; 2) adopt a national asylum law; and 3) formally recognize UNHCR.
  • Display greater transparency in negotiations with Libya on all matters relating to migration and border controls.
  • Ensure  that the human rights clause in the Libya-EU Framework Agreement, being negotiated at the time of this writing, and in 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.
  • Refrain from encouraging Libya from establishing any reception regime which falls below the European reception condition standards
  • Quickly admit UNHCR-identified refugees in need of resettlement from Libya. Do so, however, only as a supplement rather than as a substitute for allowing spontaneous arrivals in EU territory to seek asylum.
  • Direct development assistance to improve respect for human rights and human dignity in migrants’ and asylum seekers’ countries of origin to address the root causes of forced migration.

To the Management Board of Frontex

  • Ensure that the multi-annual 2010-2013 plan does not endorse cooperation with third countries that could lead to refoulement to places where people would be at risk of being subjected to persecution or to inhuman or degrading treatment. Review all operational plans involving joint operations to ensure that they specifically prohibit refoulement.
  • Direct that all Frontex training of border and migration enforcement officials shall include international refugee law, in cooperation with UNHCR.

To the UN High Commissioner for Refugees (UNHCR)

  • Continue to protest the summary removal by Italy of boat migrants to Libya.
  • Boost staffing capacity to enable UNHCR to regularly visit all migrant detention centers including in Kufra and other remote locations, as well as prisons and other facilities where potential refugees and asylum seekers are being held.
  • Continue to issue strong protests whenever UNHCR learns that Libya is violating, or is about to violate, its nonrefoulement obligation.