September 21, 2009

IV. Terminology

The terms that are chosen to identify the people who are in the process of migrating as well as the people to whom they often come into contact are rarely neutral or noncontroversial. Certain terms, such as refugee, have clear meanings in international law, but others do not or their definitions are hard to match with the reality on the ground where the flows of people are often described as “mixed.”

Migrants

For purposes of this report, the term migrant will describe the wide range of people traveling in and through Libya and as passengers on boats traveling irregularly in the Mediterranean. It is intended as an inclusive rather than an exclusive term. In other words, to call someone a migrant in this report does not exclude the possibility that he or she may be an asylum seeker or refugee. A refugee, as defined under the 1951 Convention Relating to the Status of Refugees, is a person with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” who is outside his country of nationality and is unable or unwilling, because of that fear, to return.[1] An asylum seeker is a person who is seeking protection and, as such, is trying to be recognized as a refugee or to establish a claim for protection on other grounds.

Although international law defines migrant workers, it does not define migrants per se.[2] In the context of this report, migrant is simply the broadest, most inclusive term to describe the third-country nationals entering, residing in, and leaving Libya. It includes the subset of asylum seekers who are seeking protection outside Libya (Libya itself, as yet, does not have a refugee law and does not grant asylum) as well as the narrower subset of people who are actually refugees. Refugees, it should be remembered, are people who meet the refugee definition whether or not they have been formally recognized as such.

Smugglers

International law makes a distinction between traffickers and smugglers. The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, defines trafficking as the recruitment, transportation, transfer, harboring or receipt of persons through “the threat or use of force or other forms of coercion...or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation.”[3]

By contrast, the Protocol against the Smuggling of Migrants by Land, Sea and Air defines smuggling of migrants as the procurement of “a financial or other benefit” in order to effect an illegal entry.[4] The distinction is blurred in Libya, however, as is the distinction between criminals involved in illegal migration and the police tasked with enforcing the law.

While it is the case that almost all undocumented migrants are subjected to the threat or use of force by the people who are transporting them, it is not clear that they generally are being coerced for the purposes of exploitation, as defined in the Trafficking Protocol, such as, for prostitution, other forms of sexual exploitation or forced labor.[5] Because it is unclear whether the criminals who are involved in transporting migrants in, through, and out of Libya consistently meet the definition of trafficker, Human Rights Watch will use the term smuggler to refer to these people. When quoting directly from migrants, we will use the terms that they or the interpreters used, even though they may not be technically correct.

 

[1] Convention relating to the Status of Refugees, 189 U.N.T.S 150, entered into force April 22, 1954. http://www.unhcr.org/refworld/docid/3be01b964.html (accessed July 14, 2009). (Hereafter, Refugee Convention).

[2]  International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003.

[3] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention on Transnational Organized Crime (Trafficking Protocol), adopted November 15, 2000, G.A. Res. 55/25, annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered into force December 25, 2003.

[4]Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Crime (Smuggling Protocol), adopted November 15, 2000, G.A. Res. 55/25, annex III, U.N. GAOR, 55th Sess., Supp. No. 49, at 65, UN Doc. A/45/49 (Vol. I) (2001); 40 ILM 384 (2001), entered into force January 28, 2004.

[5] According to the U.S. State Department’s Trafficking in Persons Report 2009, Libya is a “tier 2, Watch List” country for human trafficking. “Although precise figures are unavailable, foreign observers estimate that one-half to one percent of foreigners (i.e., up to 20,000 people) may be victims of trafficking. In some cases, smuggling debts and illegal status leave migrants vulnerable to coercion, resulting in cases of forced prostitution and forced labor; employers of irregular migrants sometimes withhold payment or travel documents.” U.S. Department of State, Trafficking in Persons Report, 2009, http://www.state.gov/documents/organization/123357.pdf (accessed July 6, 2009).