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IV. Denial of the Right to Seek Asylum

Libya has no asylum law or asylum procedures. For individuals fleeing persecution, there is no formal mechanism to seek protection.³⁶

According to top Libyan officials, an asylum system is not required because the country has no asylum seekers or refugees. “We do not have a law for this,” said Muhammad al-Ramalli, the director of the Passports and Nationality Office. “If you do not have this problem, you do not need a law for it.” He continued, “When people start to complain that they need asylum, then we’ll know [that we need a law].”³⁷

Other officials did not deny that Libya has refugees among the foreign population, but they argued that Libya’s administration could not handle asylum requests. They expressed a fear that offering the option of asylum would attract a new wave of undocumented migrants who would use the asylum channel to avoid deportation, as well as make it more difficult for Libya to get rid of the people who had already come.

According to the General Director of Consular Affairs at the General People’s Committee for Foreign Liaison and International Cooperation, if Libya offered asylum, the asylum seekers would come “like a plague of locusts.”³⁸ According to Shukri Ghanim, Secretary General of the General People’s Congress from 2003 until March 2006, “We cannot open our doors to asylum or there will be fifty million people.”³⁹

According to Libya’s Constitutional Proclamation from 1969, “the extradition of political refugees is prohibited.”⁴⁰ In addition, Law 20 of 1991, “On Enhancing Freedom,” says, “the Jamahiriya supports the oppressed and the defenders on the road to freedom and they should not abandon the refugees and their protection.”⁴¹ Law 20 and the Constitutional Proclamation are two of four fundamental laws in Libya that assume constitutional weight.⁴² Whatever the Libyan government might maintain about all foreigners being economic migrants and not refugees, without a determination procedure, it is impossible to distinguish between the two.

Libya has signed neither the 1951 Geneva Convention on the protection of refugees nor its 1967 Protocol, but both the Convention against Torture and the African Refugee Convention forbid Libya from sending individuals to countries where they face a serious risk of persecution or torture. Under customary international law, Libya is also obliged not to return any person to a place where they may face persecution or their lives or freedom are at risk.⁴³  In order to ensure compliance with these obligations, it is incumbent upon Libya to identify – by an individual or group-recognition mechanism – any refugees or persons otherwise in need of international protection who might be amongst the migrants they return or expel.

Although some Libyan officials claim there are no refugees who would wish to seek asylum in Libya, Human Rights Watch interviewed seventeen individuals who had been unable to obtain protection in Libya, but received refugee status from UNHCR or subsequently from the Italian government. Some of these people said they would have claimed asylum in Libya if that option had been available. Thirteen others were waiting for the Italian government’s response to their asylum claim.

One such person was Yohannes, an Eritrean journalist whom Human Rights Watch interviewed in Italy, where his asylum request was under review as of December 2005. In Eritrea, Yohannes worked as a journalist for an opposition newspaper. The authorities arrested him briefly for his writing in 2001,⁴⁴ the same year the government closed his newspaper as part of a crackdown on the independent press.⁴⁵ Eritrean authorities detained Yohannes, but he managed to escape, eventually fleeing to Sudan. Eight months later he went to Libya, entering without authorization.

The trip to Libya with a smuggler was perilous, Yohannes said. Along the way, he saw more than twenty dead men and women in the sand. The driver tried to avoid Libyan security forces, but police arrested the group near the town of Kufra.

According to Yohannes, the police saw his press card and called him a spy. They separated him from the group of forty people, and he spent the next eight months in four different prisons. First was a prison at a place he called “Ogella,” where the authorities held him in solitary confinement and provided inadequate food. At times the guards beat him, he said, and once they hit him so hard on the head that he lost consciousness (see Chapter VI, “Abuse in Detention”).

Security officials beat him at another prison he called “Jalo,” Yohannes said, where he stayed for another two months. Eventually they transferred him to a prison in Benghazi where he saw the guards use violence against many of the prisoners. In one case he witnessed, the prison guards beat a prisoner from Chad so badly that he died.

Shortly thereafter, Yohannes received a visit in prison from officials of the Eritrean embassy. They took his photograph and fingerprints and told him to get ready for his deportation home. Given his two previous arrests in Eritrea and the government’s closure of his newspaper, Yohannes feared what the government would do when he returned. With the help of fellow prisoners, he bribed the Libyan guards and escaped. Eventually he paid a smuggler to take him to Italy, where he is currently seeking asylum.⁴⁶

Draft Asylum Law

According to the head of the Libya’s immigration office, Muhammad al-Ramalli, the government has formed an “informal ad hoc committee” to examine proposals for an asylum law even though “we do not feel we have to do this now.”  The head of the committee is Sulaiman al-Shahumi, Secretary of Foreign Affairs at the General People’s Congress. Al-Shahumi told Human Rights Watch that the committee began work in mid-2004 to “establish a law dealing with refugees – political, social, cultural, economic and even groups like from Darfur.” The law was necessary, he said, so that asylum requests were “not left up to an individual to decide and there are certain criteria and standards.” He continued:

This proposal defines the cases and the privileges and mechanisms of requesting and approving asylum, and the administration to oversee this on the Libyan end, and the budget. There are a lot of procedures to accept asylum seekers. Over the past year we took from various laws from across the Arab world, but we did not find a good example. We looked to Germany, the U.K., Italy, Belgium and France. We looked at the laws and privileges.⁴⁷

According to al-Shahumi, the committee was going to present the law to the Basic People’s Congresses – where Libya’s citizens debate the merits of draft laws – in November 2005. If approved, it would go to the General People’s Congress for final approval. As of August 1, 2006, the committee had not submitted its draft law. The Libyan government did not respond to a Human Rights Watch request to see the draft.

UNHCR in Libya

The presence of a UNHCR office in Libya dates back fifteen years, but the Libyan government still refuses to sign an Accord de Siège or Memorandum of Understanding with the agency. Around 2004, the government ceased to recognize the letters of attestation that UNHCR gives refugees and asylum seekers whom the agency has recognized through its own procedures. The security forces continue to arrest such individuals for immigration offences, although the government did not deport any of these people in 2005.⁴⁸ These arrests and the lack of a formal working agreement severely restrict UNHCR from performing its mandate.

On the positive side, the government has recently granted UNHCR access to the main detention center in Tripoli. The agency has interviewed refugees and asylum seekers, processed some cases for repatriation and/or resettlement and conducted interviews for refugee status determination (RSD). According to UNHCR, it has managed to release some of the detained refugees.⁴⁹ The government has, however, denied them access to other detention centers in Libya, however.

The government’s non-recognition of UNHCR is linked to its oft-stated position that Libya has no refugees. Assistant Secretary of Foreign Liaison and International Cooperation Sa`id Eribi Hafiana told Human Rights Watch that the government cooperates with the U.N. when there is a need. “The Jamahariya has no objection to cooperation with any body of the United Nations, provided that the issue in question on which we have to cooperate has to be a real problem,” he said.⁵⁰

UNHCR has publicly stated its dissatisfaction with the lack of cooperation. Its Libya operations plan for 2006 states:

The conclusion of a Memorandum of Understanding with the Libyan Government is imperative, particularly where, as in the case of Libya, refugees are increasingly part of a broader mixed or composite migratory flow and where ad hoc migration management politics do not provide for the identification of and proper response to the needs of asylum seekers and refugees, including access to protection.⁵¹

UNHCR’s activity in Libya began in 1991, when the Libyan government accepted some 300 Somali refugees whom UNHCR had resettled from Saudi Arabia during the first Gulf War.⁵² A request from the Somalis for housing in Tripoli led to the establishment of a Somali refugee camp on Kennedy Street in Tripoli, which the government invited UNHCR to manage. New arrivals added to the camp’s population (Somalis and other Africans who had entered Libya through the desert), and the facility grew to almost 3,000 residents. Later, the government moved the camp to Salah al-Din for better protection and control, but security problems forced its closure in 2004, according to both UNHCR and a former resident of the camp.⁵³

In August 1995, to protest the Oslo accords between the Palestine Liberation Organization and Israel, al-Qadhafi ordered the expulsion of some 30,000 Palestinians from Libya to Palestinian self-rule areas in the West Bank and the Gaza Strip.⁵⁴ The Libyan government requested UNHCR to assist roughly one thousand of these refugees who it had stranded in a desert camp in Libya near the Egyptian border.⁵⁵ One legacy of this episode is that Palestinians make up the largest group of refugees registered with the UNHCR Tripoli office today. In October 1995, al-Qadhafi invited the Palestinians back and today the government provides Palestinian refugees free education and health care.

Until mid-2004, UNHCR was able to provide assistance from its Tripoli office to a large number of refugees, including some financial aid, vocational training, medical assistance and help enrolling children in Libyan schools. Despite the lack of a formal cooperation agreement, the agency communicated regularly with the government and succeeded in freeing detainees with UNHCR letters of attestation, thereby preventing their expulsion. In summer 2004, however, relations soured, and the government forced UNHCR to scale back its assistance.

In July of that year, the Libyan government forcibly returned more than 100 Eritreans (see Chapter VII, “Forced Return”). Human Rights Watch and other groups received credible information that the Eritrean government arrested the returnees upon arrival and held them in incommunicado detention.⁵⁶ The following month, the Libyan government forcibly returned another seventy-five Eritreans despite UNHCR protests. The group rebelled and hijacked the plane, forcing it to land in Sudan, where sixty of the Eritreans requested asylum. UNHCR granted all sixty of them refugee status.⁵⁷

The incident marked the start of a government crackdown on undocumented migrants in Libya, UNHCR officials said. In October 2004, UNHCR called publicly for access to the hundreds of undocumented migrants the Libyan government was preparing to deport, after Italy had returned them. (UNHCR had condemned the Italian government’s actions as unlawful expulsions. See Chapter X, ”Role of the European Union and Italy.”) “We recognize the very strong pressures that these continuing arrivals are generating, but all those who request asylum should have access to a fair procedure to assess their possible protection needs under the 1951 Refugee Convention,” a UNHCR official said.⁵⁸ The Libyan government denied UNHCR access to the detainees awaiting onward deportation, and it has continued to deny the agency access to most of its deportation facilities ever since (although it has allowed access to the main facility in Tripoli since November 2005).

In December 2004, the European Commission approved some €740,000 for a UNHCR project of “Institution Building for Asylum in North Africa,” which covered the five countries of the Arab Maghreb Union (Algeria, Mauritania, Morocco, Libya, and Tunisia). Today the project is underway in all these countries with the exception of Libya, due to the lack of official recognition and cooperation.

As of mid-2006, the UNHCR office in Tripoli consisted of three international staff, including one protection officer, and eight local staff. Without proper legal status, their powers are limited. Despite this, the agency continues to conduct refugee status determinations when individuals reach its premises. It grants “mandate status”⁵⁹ to refugees and asylum seekers and issues letters of attestation, even if the Libyan government does not recognize these letters, and continues to subject letter-holders to arrest. UNHCR has not conducted outreach among foreigner communities; it says it fears to raise false expectations that the organization can protect the refugees among them.

Human Rights Watch interviewed migrants, asylum seekers and refugees in Libya and Italy who said they did not know that UNHCR existed in Libya. “There is no office in Tripoli, or I never heard of it,” said one Eritrean refugee in Rome, who had spent one month in Libya in 2003.⁶⁰ An Ethiopian asylum seeker in Rome who spent nearly two years in Libya between 2003 and 2005 said he had had no contact with UNHCR’s Tripoli office. “I have no idea if there is an office there,” he said.⁶¹

Other refugees and asylum seekers told Human Rights Watch that they knew of UNHCR’s office but they did not go there because they knew the agency could not provide help. “In Libya there is a UNHCR office but it is just symbolic,” said the Ethiopian Ephrem S., who spent nearly two years in Libya illegally and then got refugee status in Italy in 2002. “There is nothing they can do.” He continued: “No one from UNHCR was coming to see under what conditions the refugees were living, so I assumed they were no use.”⁶²

Despite restrictions on its work, as of April 2006, UNHCR Tripoli had registered 12,166 mandate refugees, including the rejected cases. From this group, 8,873 were Palestinians. The rest included approximately 1,500 Somalis, 100 Liberians, 100 Sierra Leoneans and individuals from Eritrea, Ethiopia, Su dan and other countries.⁶³ According to UNHCR, the Tripoli office has lost contact with some of these registered refugees after they left Libya or were repatriated by the Libyan government.

UNHCR provided Human Rights Watch with its figures for registered refugees in 2004. In that year, UNHCR Tripoli reviewed 356 cases to determine refugee status. UNHCR recognized forty-six of these people as refugees and did not recognize seventy-three others.⁶⁴ The agency closed 237 cases for other reasons, primarily the disappearance of the applicant who, in most cases, UNCHR said, probably left Libya.

One effective protection UNHCR Tripoli can offer refugees in Libya is resettlement to a third country via its resettlement referral system. It rarely uses this in Libya, and only for individual emergency cases, UNHCR said. The agency resettled seven Eritrean refugees whom Amnesty International found in detention when the organization visited Libya in February 2004. The Libyan government had set resettlement as a condition for the Eritreans’ release.⁶⁵

General conditions for foreigners in Libya, such as physical insecurity, a lack of integration prospects and the risk of forced return may meet the UNHCR Resettlement Handbook criteria for resettlement need. As such, UNHCR should seek resettlement solutions for mandate refugees with no prospects for integration in Libya or voluntary repatriation.⁶⁶ Between 1995 and 2002, UNHCR provided financial assistance to many registered refugees, but today only a handful of particularly vulnerable cases receive financial support, such as pregnant women and the elderly.⁶⁷UNHCR policy is to prevent the dependency of long-term urban refugees on outside aid and to stress integration through self-reliance, agency officials said.⁶⁸Since 2002, the organization has also offered refugees assistance with vocational training and job placement.⁶⁹ Micro-credit schemes operated in 2003 and 2004 to help UNHCR refugees set up market stalls to sell coffee, but a police crackdown on unauthorized migrants in the summer of 2004 forced the stalls to close, and UNHCR abandoned the project.⁷⁰

Without cooperation from the government, UNHCR works with a number of semi-official local charities and aid organizations to provide services to migrants, asylum seekers, refugees and others in need of international protection.⁷¹ Through an implementing partner called the al-Wafa Charity Society for Humane Services and Relations, UNHCR gives support to the refugees its office has recognized.⁷²In addition to vocational training, al-Wafa provides health care to UNHCR-mandate refugees either by treating them directly (its employees include an obstetrician) or by referring them to state hospitals and clinics.⁷³

As mentioned above, the Libyan government has granted UNHCR access to the main Tripoli detention center since November 2005, which has allowed the agency to conduct RSD interviews and, in some cases, secure the release of detained refugees.

Regarding the Libyan government’s draft asylum law, UNHCR has offered its help. The agency provided the authorities with sample national laws adopted in neighboring countries, such as Sudan, Mauritania and Iraq. It has also proposed that the government establish a working group to assist the drafting process and to provide legal and technical advice.⁷⁴