Justice Denied: Irregular Migration through Libya
Fathi AGEILA
A Libyan lawyer and academic, he holds a law degree from the University of Benghazi and a master’s degree in law from the Indiana-Bloomington University. Since 2011, he has taught courses in the Criminal Law Department at the University of Benghazi. He has a special interest in the rights of migrants and asylum seekers in Libya.
On 24 March 2023, the Independent Fact-Finding Mission on Libya presented detailed findings to the Human Rights Council at the 52nd session. The findings included “The Mission found reasonable grounds to believe that the exploitation of migrants entailed violations of international human rights law and international humanitarian law and the commission of crimes against humanity. Furthermore, the smuggling, trafficking, enslavement, forced labour, imprisonment, and extortion of migrants generated significant revenue for individuals, armed groups, and State institutions. State affiliated entities in Libya received technical, logistical, and monetary support from the European Union and its member States for inter alia the interception and return of migrants to Libya.”
Numerous international reports circulated about the grave violations migrants are exposed to in Libya. Various institutions, international and local, issued these reports, revealing horrific details of crimes against migrants and asylum seekers in Libya. This article attempts to investigate the causes of impunity by evaluating the criminal policy of the Libyan legislator and whether this policy is consistent with international conventional and customary standards, to which Libya is committed before the international community. The article further addresses the consequences of the continuation of these policies on the responsibility of the state as a legal entity and on the personal criminal responsibility of individuals responsible for state institutions related to irregular migrants.
Conflict resolution between domestic criminal laws and convention rules applicable to acts of irregular migration
After reviewing the provisions of the laws on irregular migration, there is a clear conflict in the applicable legal rules. International agreements and conventions affirmed the right to freedom of movement and stressed the non-criminalization of acts of irregular migration. Meanwhile, the Libyan legislator issued several local criminal legislations punishing acts of irregular migration and failing to regulate the right to asylum. It is necessary to consider the national and international legal framework and investigate the existence of a hierarchical relationship between them that would help give priority to the applicable rules to resolve this conflict.
At the national level, the Libyan legislator criminalized acts of irregular migration for the first time in 1962, with the provisions of Law 17/1962. In 1987, the Libyan legislator issued Law 6/1987, new legislation, abolishing previous provisions. Law 6/1987 focused on regulating the entry, residence, and exit of foreigners in Libya, stipulating punishment for acts of irregular immigration with imprisonment not to exceed three months and a fine not to exceed one hundred dinars or one of these two penalties. Law 6/1987 was amended in accordance with the provisions of Law 2/2004, in which the legislator increased the punishment for human smugglers after their punishment was equal to the punishment for an irregular migrant. In 2010, the Libyan legislator issued Law 19/2010, in which the legislator increased the punishment for acts of irregular migration, so that the penalty became imprisonment with labor and a fine not to exceed one thousand dinars.
In August 2011, the Libyan National Transitional Council issued the Constitutional Declaration (the country’s interim constitution), where the legislator affirmed the necessity of respecting the right to freedom of movement, and further stipulates the respect of the right to asylum. Article 14 thereof stipulates that the state must guarantee freedom of movement. Article 10 further stipulates that “The State shall guarantee the right of asylum by virtue of the law. The extradition of political refugees shall be prohibited.”
In 2013, the Constitutional Chamber of the Supreme Court issued a ruling of the supremacy of the rules of international law and treaties ratified by Libya, over the rules of internal legislation, regardless of its legislative hierarchy, and without the need for the issuance of any internal legislation. The legislator’s ratification of an international treaty is a declaration to enforce the rules of the international treaty and give it a force over local legislations. The Constitutional Appeal 1/57 stated, “International agreements ratified by the Libyan state shall be effective as soon as the procedures for their ratification by the legislative authority in the state are completed, and they shall have priority in application over internal legislation, if a conflict occurs between their provisions and the provisions of internal legislation, the provisions of the agreement shall have the priority of implementation, without the need to amend any internal legislation that may conflict with it.”
Following the aforementioned ruling, the Constitutional Chamber has expanded the sources of positive human rights with the rules of ratified international agreements having become effective against the national legislator. The Libyan state bears responsibility for the failure of the national legislator in this regard and may not invoke the provisions of internal legislation to ward off responsibility. Article 27 of the Vienna Convention on the Law of Treaties stipulates, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” It is also not permissible for persons to ward off individual criminal liability by adhering to the provisions of domestic legislation.
“Libya has ratified the United Nations Convention against Transnational Organized Crime and its attached protocols, including the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea, and Air. ”
The rules criminalizing acts attributed to individuals have acquired peremptory rules status in international law and are not refuted by adherence to the formal concept of criminal legality. International reports documented many cases of premeditated killing, torture, enforced disappearance, enslavement, and other violations committed within a widespread or systematic framework, which fall within the jurisdiction of the International Criminal Court, in accordance with the referral decision issued by the Security Council.
Libya has ratified the United Nations Convention against Transnational Organized Crime and its attached protocols, including the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea, and Air. Therefore, the provisions of international and individual criminal liability will be primarily referred to international agreements, and then the national law, which is compatible with the rules of the international agreement. The provisions of the Protocol stipulate that the actions of migrants may not be criminalized, recognizing migrants as victims of the crime and not perpetrators.
2013 was a hopeful year for human rights, with the issuance of the aforementioned Constitutional Chamber ruling, further prompting the Ministry of Justice to prepare a draft law on human trafficking that provides for the protection of victims of human trafficking. However, discussions to approve, draft, and legislate this law have been forgotten and neglected.
“Despite the predominance of international agreements in any legal controversy, and despite the clarity of the Constitutional Chamber’s ruling in revealing the supremacy of international agreement rules over internal legislation, the “Illegal Immigration Department and Prosecution” in the Libyan courts continue to apply Law 19/2010 on combating illegal immigration, while ignoring the aforementioned conflict in favor of the rules of applicable international agreements regarding the incidents of irregular migration.”
Each year, international reports are issued documenting cases of atrocities in Libyan prisons and the detention centers of human traffickers. These reports further condemn the practices of forces supported by the Libyan state, which fail to even adhere to the standards of national law. The report of the Independent Fact-Finding Mission was issued to reveal practices supported by European Union countries. The EU countries continue to provide support to institutions violating the rights of migrants in a manner that could be interpreted as the EU countries employing the Libyan authorities to violate the right to freedom of movement on their behalf. The nature of the assistance provided by some EU countries determines the intentions of these countries to deny the right to freedom of movement. The EU countries provide the authorities with the necessary equipment to intercept migrants and forcibly return them to Libyan territory, including to arrest, rape, torture, and all kinds of heinous crimes committed by human traffickers that use Libyan territory as the scene of their crimes.
Despite the predominance of international agreements in any legal controversy, and despite the clarity of the Constitutional Chamber’s ruling in revealing the supremacy of international agreement rules over internal legislation, the “Illegal Immigration Department and Prosecution” in the Libyan courts continue to apply Law 19/2010 on combating illegal immigration, while ignoring the aforementioned conflict in favor of the rules of applicable international agreements regarding the incidents of irregular migration. The behavior of the Libyan legislator is contradictory and inconsistent, ratifying the international agreement, and issuing legislation that opposes the principles of the international agreement. The Libyan legislator ratified the United Nations Convention against Transnational Organized Crime and its protocols, and further issued legislation only six years after implementing the convention. Law 19/2010 contradicts Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea, and Air, and further contradicts both the Covenant and the Universal Declaration of Human Rights.
The Libyan judiciary fails to recognize that the Libyan state’s continued detention of irregular migrants holds it internationally legally responsible for the violations happening to migrants inside detention centers. Law 19/2010 is unconstitutional and suppresses a basic human right. Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea, and Air stipulates, “Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.” This protocol considered the irregular migrant to be a victim of the crime and not a perpetrator. Article 6 of the Protocol criminalizes the acts of smuggling migrants to obtain, directly or indirectly, a financial or other material benefit.
“The Libyan judiciary fails to recognize that the Libyan state’s continued detention of irregular migrants holds it internationally legally responsible for the violations happening to migrants inside detention centers.”
Article 13 of the Universal Declaration of Human Rights further stipulates, “Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country.” The International Covenant on Civil and Political Rights stipulates that this right be respected and its enjoyment be regulated in a manner that does not conflict with the origin of the right. Article 12 thereof stipulates, “1- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own.”
Ten years after the implementation of the United Nations Convention against Transnational Organized Crime and its protocols, the Libyan legislator issued Law 24/2023 criminalizing the “settlement” of foreigners in Libya. The Libyan legislator maintained the criminal penalty for irregular migrants stipulated in Law 19/2010, and further added new forms of criminalization contradicting the essence of applicable international agreements in particular.
The existence of Libyan laws criminalizing irregular migration indicates that the Libyan legislator failed to recognize the ratified international obligations imposed on the law. Rather, the legislator issues legislation contradicting the performance of these agreements, and further supports systematic policies against this vulnerable group of people. The criminalization of irregular migration leads to depriving this group of people from accessing necessary legal protection and health care, which every human must enjoy. The institutions responsible for the detention of irregular migrants are riddled with corruption, like many state institutions in Libya.
“The existence of Libyan laws criminalizing irregular migration indicates that the Libyan legislator failed to recognize the ratified international obligations imposed on the law. ”
Active Libyan laws criminalizing irregular migration
1. Law 6/1987 (equality between the victim and the executioner)
This law criminalizes entering or residing in Libyan territory irregularly, and punishes irregular migration and human smuggling with imprisonment not exceeding three months and a fine not to exceed one hundred dinars, or one of these two penalties.
Law 6/1987 fails to distinguish between human smugglers and perpetrators of violations against migrants, migrants themselves, and asylum seekers. The law randomly equates them in criminalization, violating the provisions of international human rights law. This law further stipulates the forcible deportation of migrants to their countries.
The aforementioned law was amended by Law 2/2004, recognizing the distinction between migrants and migrant smugglers and increasing the punishment for migrant smugglers to imprisonment for a period of no less than one year and a fine not to exceed one thousand Libyan dinars. This amendment maintains the criminalization of irregular immigration acts.
2. Law 19/2010 (breach of International Covenants)
Law 19/2010 did not explicitly repeal all the provisions of Law 6/1987, but rather posed a complementary relationship between the two laws, with law 19/2010 completing what Law 6/1987 did not provide.
This law was issued after Libya ratified the United Nations Convention against Transnational Organized Crime and its protocols but failed to respect the provisions of this convention. Under the provisions of this law, the legislator increased the penalty for irregular immigrants to imprisonment with hard labor and a fine not to exceed one thousand dinars.
The biggest defects in this law include the lack of emphasis on legal guarantees for migrants and those referred to the competent authority for investigation and trial. The Libyan legislator stipulated in Article 10 of the law, “When arresting illegal immigrants, the body mentioned in the foregoing paragraph – the Ministry of Interior – shall treat them in a humanitarian manner that preserves their dignity and rights and that does not violate their money or moveable property.”
The general protection and guarantees provided by the Libyan Code of Criminal Procedure are what led the Libyan legislator to limit himself to this brief paragraph. However, the legislation should have considered that this group of people is the weakest among those detained on remand. Following up on the court’s work, it became clear that many migrants do not know how to obtain their rights and are not fluent in the Arabic language, and in some cases, they are at risk of being ignorant of their rights in prison amid a lack of psychological and moral support. The vulnerability of migrants constitutes an exceptional circumstance and an urgent call for including all legal guarantees in the law against illegal immigration, including the necessity of an interpreter at all stages of the investigation, the right to contact a lawyer, pre-investigation health care, and other special guarantees for migrants, including providing means of contacting the country of departure to request legal or material assistance.
“The Libyan legislator further punished public employees for not reporting cases of irregular migration stipulated in this law with imprisonment for a period of not less than one year and a fine of not less than one thousand dinars and not to exceed five thousand dinars. ”
In this law, the Libyan legislator criminalized several forms of irregular migration, including the crime of entering or residing in Libyan territory without permission or a permit from the competent authorities, with the intention of settling there or crossing to another country, with punishment of imprisonment with labor and a fine not to exceed one thousand dinars. The legislator criminalized the employment of irregular migrants and punished these acts only with a fine ranging between one thousand and three thousand dinars. The legislator further placed the burden of reporting irregular immigrants directly on the citizen by stipulating the criminalization of failure to report irregular immigrants. The Libyan legislator further punished public employees for not reporting cases of irregular migration stipulated in this law with imprisonment for a period of not less than one year and a fine of not less than one thousand dinars and not to exceed five thousand dinars. If this act was committed by negligence, the legislator punished with a fine not less than five hundred dinars and not to exceed five thousand dinars. The legislator has restricted the right of the victimized immigrants to file a complaint about the crimes committed against them by obliging public employees to report an immigration crime. There are also additional economic expenses in the event of requesting health services, as a result of the immigrant’s fear of being arrested when seeking medical assistance from public hospitals.
The law stipulates the forcible deportation of foreigners from the territory of the Libyan state, provided that the Ministry of Interior is responsible for making the deportation decision. This text is criticized for its neglect of some important consequences, explained in the following points:
Failure to stipulate a method to appeal this administrative deportation decision, with the only option of resorting to the administrative judiciary to appeal this decision, and the consequent burden on the deportee, as the administrative judiciary is criticized for the length of the procedures and high costs. Some legislation remedied this deficiency by stipulating the possibility of appealing the deportation decision before the urgent administrative judiciary and required the urgent judicial departments to have a deadline not to exceed twenty days to decide on the appeal.
Failure to organize cases in which the deported person is unable to return to the country of origin due to inability to return, or due to not carrying travel documents indicating political status or nationality. Some other cases require humanitarian intervention, as returning some people to the country of departure means inevitable death, as is the case in many countries in Africa that are experiencing numerous political and humanitarian crises.
The legislator further stipulates mandatory confiscation, where the court may order mandatory confiscation of items, vehicles, and tools used in irregular immigration if proven that they are owned for reasons other than in good faith.
3. Law 24/2023 regarding combating the resettlement of foreigners in Libya
Ten years after drafting a law criminalizing human trafficking, which was long forgotten and neglected, Law 24/2023 was issued, disappointing many and shocking to all those following Libyan human rights affairs. This law is the first law concerned with irregular immigration and was issued after the Constitutional Declaration of 2011, and the aforementioned Constitutional Chamber ruling issued in 2013. This law is considered repressive, ignoring the rules of the Constitution, the rulings of the Supreme Court, and the rules of modern criminal policy. This law further uses vague and loose wording, facilitating deviation from the rule of legality. The law added a new description of irregular migration, which indicates the legislator’s expansion of criminalization, contrary to what rational criminal policy requires.
The crime of irregular migration is an artificial organizational crime. Criminologists have agreed that there is no criminal risk in this type of crime. Therefore, depriving the freedom of an irregular migrant does not remove any criminal danger from society. Rather, society bears the costs of restricting freedom and creates an environment of persecution, violence, and extortion within detention institutions. Numerous modern criminal policy scholars have criticized short-term custodial sentences for many reasons.
“Society bears the costs of restricting freedom and creates an environment of persecution, violence, and extortion within detention institutions. Numerous modern criminal policy scholars have criticized short-term custodial sentences. ”
The aforementioned law ignores the provisions of the Constitution and completely ignores asylum. There is no indication that those seeking political or humanitarian asylum are exempt from the application of the provisions of this repressive law. Article 10 of the Constitutional Declaration stipulates, “The State shall guarantee the right of asylum by virtue of the law.” The criminalization of Libya as a domicile is unconstitutional and contradicts the international agreements ratified by Libya.
Following this article review of this legal controversy, it is clear that international agreements have dismissed criminalization as a solution to the negative effects of irregular migration. The agreements propose other administrative and financial solutions that would achieve the community’s economic and security goals in protecting the local community and the immigrant community from injustice, abuse, and unfairness.
The Libyan legislator’s insistence on ignoring alternative solutions leads primarily to the deviation of legitimate violence into illegitimate violence, resulting in atrocities inside official detention centers, and worse atrocities in dens of human trafficking groups.
“The continuation of these extremist and repressive criminal policies facilitates creation of criminal nests with economic power and corrupt money, which could undermine the foundations of the democratic system that Libyans seek to achieve. ”
The criminalization of irregular migration and authorizing a repressive apparatus such as the Stabilization Support Service to arrest desperate immigrants does not lead to the rule of law. The Stabilization Support Service was established to protect the security of the state, but it established an administration to collect money from immigrants and even traffic in them.
The Anti-Settlement and Immigration Department is responsible for the atrocities occurring in Abu Salim, Ain Zara, and Abu Issa. The Anti-Settlement and Illegal Immigration Department under its jurisdiction further committed crimes against humanity, in relation to violent maritime interdiction operations off the coast of Zawiya. This administration is affiliated with the state, and the state bears responsibility for the violations committed by its members before the international community.
“The criminalization of irregular migration and authorizing a repressive apparatus such as the Stabilization Support Service to arrest desperate immigrants does not lead to the rule of law. ”
This criminalization policy generates huge sums of money for influential institutions in the state, which prevents any political or judicial decision to enforce the provisions of international agreements on Libyan territory. Justice will continue to be denied until a decisive decision is taken by the International Criminal Prosecutor pursuant to the 2011 Security Council referral.