Marsad Adala: Legal analysis of Law 19/2010 on illegal immigration in Libya
The North projects measures onto the South
“Hell is other people,” was spoken by a theatrical character of the French existentialist philosopher Jean-Paul Sartre. On the contrary, throughout Libyan heritage, traditions, and history, we find values of honoring the guest and housing the homeless and the oppressed. These traditions were further reinforced by religious provisions. Libya is part of the Mediterranean, the cradle of civilization, and its peoples, tribes, messengers, and sects have been migrating and moving since the dawn of history, more than any other region in the world, considering the history of humanity. Wasn’t the early human in a state of migration and populating this world? It is ironic that its starting point, according to specialized scholars, is the African continent.
For decades and until today, world governments have restricted these ceaseless waves of immigration that have varied in quality and quantity, until this unacceptable type of immigration emerged. Those who see immigration as a threat to their interests call it illegal immigration, and those who treat it with some objectivity call it irregular immigration.
Libya is neither a country of departure nor arrival for these migrations, but for years it has been concerned with being a transit country, which made the Libyan state enact Law 19/2010 on illegal immigration on 28 January 2010.
The Libyan illegal immigration law violates human rights that the Libyan state ratified, and further violates of the Constitutional Declaration of 2011. The immigration law includes a negative view of irregular immigrants. They are treated as inferior and face criminalization, prison sentences, and deportation. The aforementioned law contradicts Islamic sharia law, which the Constitutional Declaration stipulates as the main source of legislation that cannot be violated. The law further contradicts humanitarian considerations, which consider irregular immigrants as non-criminal and non-aggressor, but rather a human with rights, who in most cases was forced to emigrate to protect his life and the life of his family from the horrors of wars, injustice, lack of security and development, or even for natural reasons such as famine, climate change, and desertification, and other disasters for which the immigrant has no control over. Thus international law prohibits the return of an immigrant, even if irregular, in the event that there is a danger or threat to his life, health, or safety in his country.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the Libyan state, stipulates in Article 3: “1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” Law 19/2010 fails to establish any criterion for distinguishing between irregular immigrants, who can be deported and who cannot be deported, in accordance with international law, despite the Libyan state’s ratification of these conventions.
The Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa is the most specific and applicable text ratified by the Libyan state and granting several rights to refugees and immigrants. Article 2, paragraph 3 of the of the convention states:
“3. No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.”
Law 19/2010 violates the aforementioned convention, which was simply legislated to prevent the crossing of refugees within the framework of the European countries’ policy of exporting their borders and assigning North African countries to guard them and prevent the arrival of immigrants through their territories. Article 12 of the International Covenant on Civil and Political Rights further prohibits the transfer or forced deportation of immigrants, or forcing them to move or return against their will.
Law 19/2010 ignores the right to movement, and further ignores the right to seek asylum and fails to distinguish between asylum seekers and other immigrants. The law also ignores the rights of irregular immigrants to decent humane treatment and to enjoy the guarantees of a fair trial. The law does not organize any effective judicial assistance for the illegal immigrant referred to trial according to the law, and does not assign a translator during the investigation or trial stage, as most immigrants do not speak Arabic or English, and most did not receive appropriate education to master a language other than their native dialect. The deported irregular immigrant does not have the right to resort to the Libyan courts in an efficient and effective manner because the law does not require postponing the implementation of the deportation decision until the judiciary decides on his appeal, assuming that he reaches a competent court.
The aforementioned law, its perception and representation of the irregular immigrant, reflects a racist tendency, contradicting the Arab, African, and Islamic dimension of the Libyan people. Describing immigration as illegal, where it should be considered a normal and even necessary human social phenomenon, indicates the regime’s adoption at that time of the right-wing view of European governments, which considered irregular immigrants an imminent danger and an attack resembling an occupation on their lands. The fact is that most of these immigrants are victims of the conditions of their countries of origin and the violence, drought, and poverty they suffer from. The immigrants are further victims of human trafficking groups that exploit their plights to flourish on both banks of the Mediterranean.
Law 19/2010 equated the human traffickers with their immigrant victims by criminalizing both of them. The law further ignored the humanitarian and social aspect and the conditions of residence of immigrants in Libya, and that they are often in urgent health conditions and psychological distress after the horrors of fleeing war zones or crossing the desert on foot or by primitive means.
The aforementioned law fails to distinguish between adults and minors and further fails to establish any protective measures for children or the possible family situation, where most face imprisonment of guardians or the rest of the family. The population of irregular immigrants is no longer limited to adventurous young men, dreaming of Western luxury, but rather most are now entire families on the move across the desert, fleeing from inhumane security or development conditions, as the legislation is supposed to pay attention to women, children, the elderly, and differently abled people. However, Law 19/2010 criminalizes, wholesale and without exception, even those self-evident humanitarian considerations, as if the Libyan state was charged with implementing instructions that it cannot violate.
This law does not reflect the aspirations of the Libyan people expressed in the Constitutional Declaration of 2011. Rather, this law is among the group of texts that contradict the Declaration, and pursuant to Article 35 of the Declaration, must be considered invalid until amended or replaced. Unfortunately, the legislative authority does not seem aware of the necessity of confronting it, and which the executive authority adheres to in search of the easiest and least responsible solutions. The judicial authority has a duty to decide on the issue of the enforcement of this law, upholding constitutional rules, respecting international human rights agreements, achieving the goals of the February 2011 revolution, and the sovereignty of the Libyan state over its territory.
