Libya, used here as a case study, will be analysed in terms of the rights of refugees during the rule of former President Muammar Gaddafi and after he was overthrown. Any examination of the rights of refugees will have to include the country in question's foreign relations, especially in neighbouring or closely situated states. In the case of Libya, the question of refugee rights will also be addressed through an examination of Libyan foreign relations, in particular Italy and France.
International treaties and conventions are only entered into domestic law once the government of a country signs and ratifies the treaty in question. Many treaties include clauses monitoring the implementation of the treaty. However, the refugee conventions do not include such clauses, thus inhibiting their effectiveness and allowing states to easily violate them.2
The protection of refugees is governed by a few key agreements.
Article 1(A)2 of the 1951 United Nations Convention relating to the Status of Refugees stipulates that the term "refugee" shall apply to any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.3
The Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty adopted in 1969 by the Organization of African Unity, added to the definition found in the 1951 Convention (and the 1967 Protocol) to include a more objective consideration; it expands the definition of a refugee and thus the protection granted to refugees. The OAU convention stipulates that the term "refugee" shall also apply to
every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.4
In the Gaddafi era, Libya did not adopt any domestic legislation relating to the issue of asylum, nor were there any national asylum institutions and processes established. The only references on refugees that have been incorporated into the Libyan legal framework are: 1) Article 11 of Libya's Constitutional Declaration of 1969, 38 which states that "the extradition of political refugees is prohibited," and 2) Article 21 of Law No. 20which contains a reference to non-refoulement (the forced return of refugees), a principle of international law.5
In 2006, the Libyan Ministry of Justice established a National Legal Committee which was tasked with drafting national legislation on asylum. A draft text was prepared at the end of 2007 and the UNHCR was invited to comment on the compliance of the draft with international standards. While the UNHCR's comments were largely incorporated by the drafting committee, there has since been no progress in enacting the bill into law.6
While Libya is a party to the 1969 OAU convention, it has not signed the 1951 UN convention, allowing it, as the Libyan government seemed to believe, to treat refugees as harshly as it pleased. This has had an adverse effect on the humanitarian situation facing refugees in Libya.7 Furthermore, this failure has also impacted on the country's international relations (as will be apparent below) in a way that has had negative consequences for refugees.
As a result of the MENA uprisings in Libya, refugees fleeing Libya experienced inhumane treatment from Libyan transitional and pseudo authorities as well as from other countries. This was clear from the reluctance of European Union member states to allow the entry of refugees from Libya into their countries.
Treatment of Refugees under Gaddafi
The western world, and in particular the EU, has greatly influenced Libya's policies towards, and treatment of, refugees. The EU used the dictatorships in both Libya and Tunisia to police these North African coastlines in a manner that would prevent refugees from crossing over European borders.8 This affected refugees from various parts of Africa who travelled through Libyan territory and Libyan waters to reach EU states – especially Italy and Malta.
The influx of refugees into the United Kingdom, especially in 2003, resulted in then-prime minister Tony Blair formulating new policies in relation to refugees. This involved a two-pronged approach: 1) the establishment of refugee reception centres within EU territory; and 2) military intervention to restrict the influx of refugees into EU territory.9 In addition, Italian Prime Minister Silvio Belusconi signed a secret agreement with Libya which allowed for the return of illegal immigrants from EU territory back to Libya.10
Italy also funded the establishment of refugee camps in Libya and Tunisia. The refugee camp in Libya was situated in the middle of the desert in the south of the country. Thousands of refugee lives were lost in this camp as a result of abuse by Libyan authorities.11
The examples of abuse and mistreatment were shocking. Mistreatment of refugees occurred during the arrest of refugees as well as during their detention. Refugees were not granted access to legal representation, were beaten (often leading to death) and some experienced deportations and even rape. 12
The foregoing can best be observed from the words of one sub-Saharan African migrant who described his treatment in 2004.
They hung me by a chain from the wall. There was a stick behind my knees, and my hands were tied to it. They hung me up on the wall. I stayed like that for forty-five minutes. They were beating me up during that time. They told me "if we kill you no one will know".13
The abuse of these refugees did not occur only within the borders of Libya. In 2003 and 2005, refugees that were stranded on the Mediterranean island of Lampedusa were forcefully returned to Libya. The deportations were carried out using flights funded by Italy. 14
The EU's cooperation with Libya on the issue of refugees strengthened in 2010 when the two entities signed a "migration operation" agenda. Subsequently, Italy and Libya entered into a separate agreement, the "Treaty of Friendship, Partnership and Co-operation". This "friendship pact" included an agreement that Italy was to provide 5 billion Euros for infrastructure in Libya over a period of 25 years. Although this was an agreement between Italy and Libya, the EU was to pay 50 per cent of the costs.15 The EU's anti-asylum policy extended financial and logistical support to the Libyan government and resulted in the deaths of thousands of refugees.16
Thus, while the Gaddafi regime was guilty of various abuses against refugees, the EU was complicit in these human rights violations.
Treatment of refugees in the post-Gaddafi era
In 2011, the Gaddafi regime collapsed. The fall of Gaddafi impacted on the rights of refugees within Libya and also on Libya's relations with other states.
Refugees became and remain uncertain of their futures in Libya. Together with many Libyan nationals, refugees have faced the loss of their livelihoods and are in constant fear of arrest and detention.17 A number of refugees (and migrants) from other African countries were treated extremely harshly by the rebel groups, accused of being mercenaries and were often tortured and assaulted. Refugees from Somalia, Palestine, Eritrea, and other (mainly African) countries were left to find their own way and had no option but to flee to European countries such as Italy and France.
However, the refugee crisis has received little or no positive response from Europe. In September 2011, approximately eight months after the uprisings began, 1 500 people lost their lives as they returned to Libya. There was an urgent call for the EU to participate in assisting refugees, but no response was forthcoming. 18
The EU's attitude to the crisis has been called "incoherent" and "too weak".19 The crisis led to a division within the EU wherein Italy accepted refugees into the country against the wishes of other EU members. France and Germany, in particular, were disgruntled at Italy's decision. 20
In April 2011, a number of EU member states, led by France and Germany, accused Italy of violating the "Schengen spirit" and threatened to restore border controls between EU states. Italian interior minister Roberto Maroni in turn accused his counterparts of failing to show solidarity. "Italy has been left alone," he said. "I wonder whether in this situation it makes sense to remain in the European Union." 21
In April 2011, France blocked trains at all its borders, thus preventing access of North African refugees who came via Italy. Italy condemned the actions of France calling it a violation of EU principles. The contrasting reactions to the influx of refugees into EU states were due to national pressures in each country, such as upcoming elections.22 French president Nicolas Sarkozy was under pressure as the presidential elections were coming up in 2012 and the Italian government was concerned about local and provincial elections set to take place. The pressures from the right wing were strengthening and these respective politicians were forced to act in ways that would support their positions and their future in leadership.23
There have been a few incidents that indicate the incoherence between EU member states. In April 2011, a boat carrying 229 passengers was left adrift in the Mediterranean. Approximately 63 passengers died as a result. It has been suggested that the UK was aware of the boat but did not react to the situation.24
Swedish EU commissioner Cecilia Malmström has been arguing for a common EU refugee policy but there has been no progress on formulating such a policy. She confirmed that EU member states should decide individually if they wished to grant asylum to Libyan refugees.25
Assistance has been given to refugees by organisations such as Red Cross and the International Organisation of Migration. Powerful political bodies such as NATO and the EU have remained silent and provided little or no assistance to distressed refugees. On the whole, the EU has been notorious for performing badly when it was divided but was forced to put into place mechanisms to stabilise the crisis.26 This was evident in the 1990s in the Balkans where the failure to react to a crisis saw a substantial effort to bring all states which were in turmoil on path. In 2003, with the crisis in Iraq, the failure to act gave rise to the European Security Strategy which included a common EU vision on how to react towards threats and security-related issues.27
It is apparent that the Gaddafi regime was guilty of violating its obligations towards refugees. Regardless of the government's failure to sign and ratify the applicable treaties and conventions, it was not absolved from its obligations to treat refugees in a non-abusive manner. This is particularly true in light of Libya's domestic law that included (albeit limited) protection for refugees. Gaddafi's conduct was thus a blatant contravention of law and an infringement of human rights.
Libya, as an authoritarian state, succumbed to foreign pressure to control the movements of refugees in exchange for western support. Entities such as the EU, however, were only willing to assist Libya if it would enhance their interests and power (even if this consequently led to human rights violations).
The post Gaddafi regime has not improved the lives of refugees. And the EU's limited intervention has only worsened the situation and again used the crisis to further the interests of it own members.
The refugee crisis in Libya remains an on-going concern as the struggles in North African countries linger and conditions deteriorate.
2 University of Minnesota-human Rights Library Study Guide: the rights of refugees, 2003, http://www1.umn.edu/humanrts/edumat/studyguides/refugees.htm
3 Convention relating to the Status of Refugees; the Office of the United Nations High Commissioner for Human Rights adopted on 28 July 1951
4Convention Governing the Specific Aspects of Refugee Problems in Africa adopted on 10 September 1969
5 Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Hirsi and Others v. Italy (Application no. 27765/09), 4 May 2012 (date accessed), p.6, www.unhcr.org
6 Submission by the Office of the UNHCR (2012: 6)
8 Kreikenbaum, Martin 'The Alliance between the EU and Libya in the persecution of refugees', International Committee of the Fourth International,March 2011, www.wsws.org/articles/2011/mar2011/eu.i-m05.shtml
9 Kreikenbaum (2011)
10 Kreikenbaum (2011)
11 Kreikenbaum (2011)
12 Field, Ophelia; Abrahams, Fred and Gorvin, Ian (2006) 'Stemming the Flow: Abuses against Migrants, Asylum Seekers and Refugees', Human Rights Watch, September 2006 Volume 18, No. 5, p.2
13 Field et al (2006: 1)
14 Field et al (2006: note 4)
15 'Europe's asylum and migration policy: for the promotion of human rights or the protection of economic self-interest', 17 March 2011, www.peaceandprogress.org/EU_Asylum_and_Migration_Policy_
16 'Europe's asylum and migration policy' (2011)
18 EU Business, "EU response to Libya refugee crisis 'abysmal': Amnesty" September 2011 www.eubusiness.com/news-eu/libyan.conflict.cbl
19 Koenig, Nicole "The EU and the Libyan Crisis: In Quest of Incoherence?" Instituto Affari Internazionali Working Papers 11, 19 July 2011, p 3
20 Koenig (2011: 10)
21 Koenig (2011: 10)
22 Koenig (2011: 10)
23 Koenig (2011: 10-11)
24 Shenker, Jack, 'Council of Europe Demands Policy Overhaul to Stop Migrant Boat Deaths', The Guardian, 7 May 2012 (date accessed), http://www.guardian.co.uk/world/2012/apr/24/council-of-europe-migrant-boat-deaths
25 'EU marred over Libyan Refugees', Nordic Africa News, 7 May 2012 (date accessed)
26 EU marred over Libyan Refugees (May 2012: note 14)
27 EU marred over Libyan Refugees (May 2012)
* Zeenat Sujee is an Attorney at the Legal Resources Centre (LRC