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- Adopt and implement legislation to fulfill Libya’s existing asylum obligations under the Constitutional Proclamation, the African Refugee Convention, the Convention against Torture (CAT), the Convention on the Rights of the Child (CRC), and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. Above all, introduce laws to respect the absolute prohibition on refoulement and, with the expert guidance of UNHCR, establish an effective, fair and lawful asylum procedure.
- Ratify the 1951 Refugee Convention and its 1967 Protocol, and bring new national asylum law and practice into line accordingly.
- Implement the OAU (now AU) Convention Governing the Specific Aspects of Refugee Problems in Africa, to which Libya is a signatory, respecting in particular the Convention’s definition of a refugee and its article V on the “essentially voluntary character of repatriation” so that “no refugee shall be repatriated against his will.”
- 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.
- Improve conditions in all immigration-related detention facilities to alleviate over-crowding and provide adequate health care. Protect women and children in these facilities while maintaining family unity.
- 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.
- Instruct all law enforcement officers and other officials to respect the letters of attestation that UNHCR currently gives to those it determines to be persons of concern under its mandate and so protect those persons from arrest or harassment.
- End the arbitrary detention of migrants, asylum seekers and refugees. Do not deprive anyone of his/her liberty without, at a minimum: a lawful order; being informed promptly in a language that he/she understands of the reasons for the arrest or detention; being brought before a judicial or other independent authority within a reasonable period for a substantive decision on the need to detain him/her; and having the necessity of continued detention reviewed by that same authority periodically. In addition, provide those who are detained access to legal and medical assistance, and interpreters wherever necessary, and ensure that conditions in detention conform to international minimum standards. Use detention for the purpose of effecting removal only as a last resort.
- Hold non-nationals detained for non-immigration-related offences in conditions that conform to international minimum standards, and guarantee them a fair trial, including access to legal assistance and to interpreters whenever necessary.
- Maintain confidentiality with any asylum claims that do take place and prevent consular access without the prior consent of those detained.
- When foreign detainees or prisoners request that their governments be notified, promptly inform embassies of the arrest, detention, or imprisonment of their nationals, and give diplomats access to visit or telephone these detainees and prisoners upon request. Inform embassies of every death in custody involving a national of their country, whether resulting from natural or other causes.
- Grant the request dating from 2003 of the U.N. Working Group on Arbitrary Detention to visit Libya and, when they visit, grant them unhindered and unscheduled access to all places where foreigners are gathered and detained.
- Make more easily accessible to an international audience the full texts of Libya’s domestic legislation and regulations, as published in the official gazette, so as to facilitate exchanges with U.N. treaty bodies and others about how Libyan legislation complies with international obligations.
- Adopt implementing legislation to fulfill existing obligations under the Convention on the Elimination of Racial Discrimination in order to prevent, prohibit and remedy racial discrimination in all its forms, including against non-nationals.
- Take steps to bring the practices of law enforcement officials (police, judiciary officials, and any persons involved in supervising detention or penitentiary custody, including military personnel) toward non-nationals fully into conformity with relevant international standards as well as principles of non-discrimination. Cease xenophobic profiling of sub-Saharan Africans and collective accusations of criminality.
- Encourage all African Union member states to ratify the U.N. Convention relating to the Status of Refugees of 1951, and its 1967 Protocol.
- Call upon Libya to – with the consent of the individual involved – inform embassies promptly of the arrest, detention or imprisonment of any of their nationals on criminal charges, and allow them to visit or telephone these detainees and prisoners upon request. In particular, call upon Libya to inform embassies of every death in custody involving a national of their country, regardless of the cause of death.
- Appeal to member states of UNHCR’s Executive Committee (ExCom) to broach the issue of UNHCR’s current status in Libya with the Libyan government. Call on ExCom member states to insist that the European Union and the International Organization for Migration make Libyan cooperation with UNHCR inside Libya, and at sea, a precondition for future cooperation on other matters.
- Continue to issue strong protests in the media whenever the Office learns that Libya is violating, or is about to violate, its obligation of non-refoulement.
- Given the lack of effective protection and integration prospects for refugees in Libya at the present time, make a concerted effort to offer more third-country resettlement opportunities for refugees who meet the criteria for resettlement in UNHCR’s Resettlement Handbook, rather than limiting referrals to emergency cases.
- Organize and participate in workshops to discuss the rights of migrants and refugees, involving Libyan judges, prosecutors, private lawyers and public defenders, police, civil servants, immigration officers, coast and other border guards, the judicial police, and officers involved in the management and security of detention or “voluntary repatriation” facilities.
- Make improvement of material and legal conditions for migrants and, where appropriate, facilitation of third-country resettlement the sole objectives of any future IOM projects in Libya. Do not promote or facilitate interception or return. Vigorously encourage Libya, as a member of IOM’s Governing Council, to respect the human rights of migrants and to implement laws and procedures that effectively do so.
- Act with greater transparency in negotiations with Libya on all matters relating to migration and border control.
- Apply strict human rights conditionality to any joint projects with the Libyan government in the migration field. Do not cooperate on strengthening Libyan border or internal immigration controls unless human rights, and refugee and migrant rights in particular, are dramatically improved.
- Avoid using language such as “transit migrants” or “stranded migrants” when speaking of the entire population of those held, for example, in Libyan detention centers. In the absence of an effective asylum regime in Libya (at present Libya has no asylum law, let alone effective enforcement of the law), such labels are misleading and lend credence to those who argue erroneously that Libya has no refugees on its territory.
- Avoid setting targets for the “voluntary repatriation” of migrants as a measure of success in IOM projects, as this creates undue pressure to achieve returns without the necessary safeguards. Increasing Libyan capacity to effect returns of foreign nationals is not a safe objective so long as so many returns are coerced, and so long as there is not a functioning asylum system in the country.
- Rather than expanding immigration detention or camp infrastructure in Libya, focus on providing detainees with greater access to basic necessities such as nutritious food, clean water, bedding, sanitation and medical care within existing facilities. In accordance with IOM’s Memorandum of Understanding with UNHCR, refer to UNHCR Tripoli any person expressing a desire for asylum or a fear of return, and insist upon UNHCR’s access to “transit migrants.” Refrain from any further work in Libya if the Libyan authorities do not accept this condition.
- With the consent of the alleged victim, refer any cases that IOM staff finds of suspected torture or police abuse to the Human Rights Program at the Qadhafi Foundation for Development and to the Libyan authorities responsible for investigating and prosecuting such crimes.
- Refrain from expelling third-country (non-Libyan) nationals to Libya until Libya’s treatment of migrants, asylum seekers and refugees fully meets European standards in relation to non-refoulement to persecution or risk of treatment contrary to article 3 ECHR. Under current conditions, the return of third-country nationals breaches European human rights obligations not to return people to inhuman or degrading treatment. The return of any asylum seeker to Libya who is rejected on procedural or so-called “safe third country” grounds and who is not first given an opportunity for a full and fair hearing on the merits of his or her claim also violates European non-refoulement obligations.
- Denounce any further mass expulsions of foreigners from Italy to Libya, which are in breach of the principle of non-refoulement and in violation of the right to protection from collective expulsion.
- 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 no E.U. joint actions, or actions by single E.U. states, undermine the conditionality already in place relating to the principles of the Barcelona Process.387
- Apply strict human rights conditionality to any cooperation with the Libyan government in the migration field (including any cooperation on border controls), such that the observance of human rights, and the rights of refugees and migrants in particular, are dramatically improved.
- Immediately implement “protected entry procedures” through embassies in Tripoli and resettle refugees identified by UNHCR as being in need of resettlement. Do so, however, only as a supplement rather than as a substitute for allowing spontaneous asylum seekers to gain access to E.U. territory and to asylum procedures upon arrival.
- Address the migration issue in its wider African context through the Cotonou Agreement,388 but in full consultation with those setting development priorities in Africa. At the same time, recognize that the root causes of migration to and through Libya are not solely economic and must be addressed by resolving the causes of forced displacement that are driven by conflict, political repression and human rights violations in countries of origin.
- Make public the August 2004 bilateral agreement between the governments of Italy and Libya.
- In addition to funding the construction of three detention centers for foreigners in Libya, assist the country to develop an asylum law and procedures that meet international standards, and encourage the Libyan government to cooperate with UNHCR.
- 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 there are no more mass expulsions of third-country nationals to Libya, which – in view of the absence of effective protection for refugees and others in need of international protection, and the violations of migrants’ human rights that occur in Libya – are in blatant violation of Italy’s own human rights obligations.
- Grant UNHCR, human rights and legal advocacy NGOs, lawyers, journalists and other independent observers full and unfettered access to all reception, identification and detention centers in Italy. Ensure full cooperation with UNHCR, IOM and the Italian Red Cross under the 2006 agreement to monitor the center at Lampedusa.
- Ensure access to full and fair asylum procedure, 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 detained at sea.
- Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
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