Unsafe and Undignified

Unsafe and Undignified
The forced expulsion of

migrants from Libya
Unsafe and Undignified
The forced expulsion of
migrants from Libya
Copyright © May 2021 United Nations
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CONTENTS
Executive Summary....................................................................................................... ii
1. INTRODUCTION AND METHODOLOGY........................................................... 1
2. CONTEXT........................................................................................................... 5
3. EXERCISING DUE DILIGENCE IN SUPPORT TO MIGRATION

AND BORDER MANAGEMENT IN LIBYA........................................................11
4 KEY HUMAN RIGHTS CHALLENGES FACED BY MIGRANTS

IN THE CONTEXT OF FORCED RETURN..........................................................15
A. LACK OF PROCEDURAL GUARANTEES AND DUE PROCESS............................................... 16
Recommendation........................................................................................................ 20
B. THE USE OF ARBITRARY ARREST AND DETENTION TO ENFORCE RETURNS......................... 22

Recommendation........................................................................................................ 26
C. DANGEROUS AND UNDIGNIFIED FORCED RETURN JOURNEYS......................................... 27

Recommendation........................................................................................................ 30
D. LACK OF ACCESS TO JUSTICE AND EFFECTIVE REMEDY.................................................... 31

Recommendation........................................................................................................ 32
5. CONCLUSION.................................................................................................. 33
Unsafe and Undignified : The forced expulsion of migrants from Libya
EXECUTIVE SUMMARY
On 10 December, 2018, on the occasion of International Human Rights Day, the world’s leaders met in
Marrakech, Morocco to adopt the Global Compact for Safe, Orderly and Regular Migration (GCM).1
The adoption of the GCM was hailed as an “historic moment” as it was the first intergovernmentally
negotiated agreement, prepared under the auspices of the United Nations, to cover all dimensions
of international migration in a holistic and comprehensive manner.2 The GCM contains a number
of important State commitments including, among others, “to facilitate and cooperate for safe and
dignified return and to guarantee due process, individual assessment and effective remedy, by upholding
the prohibition of collective expulsion and of returning migrants when there is a real and foreseeable
risk of death, torture, and other cruel, inhuman, and degrading treatment or punishment, or other
irreparable harm, in accordance with our obligations under international human rights law”.3
In light of this GCM commitment, this report aims to highlight the human rights impacts of migrants
being forcibly returned from Libya.4 The report is part of a wider project by the Office of the United
Nations High Commissioner for Human Rights (OHCHR) seeking to identify, document and analyse
human rights violations and abuses as well as protection gaps impacting migrants in Libya and the
neighbouring region and to formulate recommendations to relevant governments and other stakeholders,
aimed at ensuring compliance with international human rights law and standards. It builds upon
and complements the findings of previous joint reports by OHCHR and the United Nations Support
Mission in Libya (UNSMIL) on the protection of the human rights of migrants in Libya.5
The report is structured according to four key human rights challenges and in each section the
human rights legal framework is discussed, followed by an analysis of the challenge and a set of
recommendations. The key challenges highlighted in this report include: a) lack of due process and
procedural safeguards; b) the use of arbitrary arrest and detention to enforce returns; c) dangerous
and undignified forced return journeys; and d) lack of access to justice and effective remedy. The
recommendations in this report are directed at Libyan authorities, the European Union (EU), its
Member States and institutions, United Nations (UN) entities and other stakeholders who have a role
in ensuring that border management and security initiatives in Libya promote and uphold respect for
international law. They seek to provide guidance to ensure return policies and practices are consistent
with the effective respect, protection and fulfilment of the human rights of all migrants in Libya,
regardless of their status.
In the absence of more systematic data collection and public reporting by Libyan authorities, it is
difficult to assess the full extent of potential human rights violations and abuses as a result of migrants
being forcibly expelled from Libya. However, information gathered by OHCHR and presented in
1
The Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, Resolution adopted by the General Assembly on 19
December 2018.
2
UN News, ‘Historic moment’ for people on the move, as UN agrees first-ever Global Compact on migration, 13 July 2018, available at
https://news.un.org/en/story/2018/07/1014632.
3
The Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, Objective 21, para. 37.
4
There is no universal legal definition of “migrant”. OHCHR uses the term “international migrant” to refer to “any person who is outside a State of which
they are a citizen or national, or, in the case of stateless person, their State of birth or habitual residence”. See, OHCHR, Recommended Principles and
Guidelines on Human Rights at International Borders (2014), available at: https://www.ohchr.org/Documents/Issues/Migration/OHCHR_
Recommended_Principles_Guidelines.pdf.
5
See, UNSMIL/OHCHR, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya, 18 December
2018, available at: https://unsmil.unmissions.org/sites/default/files/libya-migration-report-18dec2018.pdf; and UNSMIL/OHCHR,
“Detained and Dehumanized”: Report on Human Rights Abuses Against Migrants in Libya, 13 December 2016, available at: https://
unsmil.unmissions.org/sites/default/files/migrants_report-en.pdf.
ii
© DCIM Unsafe and Undignified : The forced expulsion of migrants from Libya
this report indicates that migrants in Libya are routinely at risk of arbitrary or collective expulsion
without an individual assessment of their rights, circumstances or protection considerations. Some are
being expelled to places where they may face persecution, torture, ill-treatment or other irreparable
harm in violation of the principle of non-refoulement, and raising serious concerns regarding potential
chain-refoulement when migrants are returned to Libya from international waters.6 Expulsions
from Libya overwhelmingly lack proceedings afforded with due process and procedural guarantees,
including judicial control, access to legal assistance, the ability to challenge the legality of one’s return,
and individual assessment. Additionally, the expulsions themselves often place migrants in extremely
vulnerable situations, including long and perilous return journeys, with migrants being forced
to travel on overcrowded vehicles across remote stretches of the Sahara Desert, without adequate
safety equipment, food, water and without being provided with appropriate medical care, including
COVID-19 testing and prevention measures.
Information received by OHCHR also indicates that expulsions from Libya are increasingly taking
place under so-called “emergency procedures” linked to preventing the spread of COVID-19, despite
calls from the UN system and the human rights mechanisms to suspend all forced returns during the
pandemic, in order to protect the health of migrants and communities in countries of origin, transit
and destination, and to uphold human rights.7 Throughout the process, and especially following their
6
See, OHCHR, “Lethal Disregard”: Search and rescue and the protection of migrants in the central Mediterranean Sea, March 2021,
available at: https://www.ohchr.org/Documents/Issues/Migration/OHCHR-thematic-report-SAR-protection-at-sea.pdf.
7
OHCHR, COVID-19 and the Human Rights of Migrants: Guidance, April 2020, available at: https://www.ohchr.org/Documents/
Issues/Migration/OHCHRGuidance_COVID19_Migrants.pdf; UN Network on Migration, Forced Returns of Migrants Must be
Suspended in Times of COVID-19, 13 May 2020, available at: https://migrationnetwork.un.org/un-network-migration-official-statement-
forced-returns-migrants-must-be-suspended-times-covid-19; UN Committee on the Protection of the Rights of All Migrant Workers and
Members of their Families and UN Special Rapporteur on the human rights of migrants, Joint Guidance Note on the Impacts of the
COVID-19 Pandemic on the Human Rights of Migrants, May 2020, available at: https://www.ohchr.org/Documents/Issues/Migration/
CMWSPMJointGuidanceNoteCOVID-19Migrants.pdf.
iii
expulsion from Libya, migrants lack meaningful access to justice and effective remedy for harms
suffered during the return process, which are further obscured by the lack of independent monitoring
and official disaggregated data, made publicly available, on the number and circumstances of the
people being expelled.
While Libya is a party to several international human rights instruments which contain provisions
relevant for the forced return of migrants,8 this report documents continued incidents of expulsions
from Libya that fail to uphold migrants’ human rights. Moreover, despite the known human rights risks
inherent to forced returns from Libya, the report documents how, in recent years, efforts to strengthen
Libya’s external border security have become increasingly prominent in bi-lateral and multi-lateral
discussions, including with donor governments and international organisations supporting Libya in
its stated efforts to “combat illegal migration”. The report finds that in the absence of more robust
due diligence and human rights-based approaches, current operational and capacity-building efforts
focused on strengthening Libya’s external border security are putting migrants’ human rights at risk.
OHCHR has consistently highlighted that Libya cannot be considered a safe place for the return
or disembarkation of migrants and that such returns to Libya may violate the principle of non-
refoulement.9 Previous public statements and reporting by OHCHR point out that migrants in Libya
systematically and routinely face the risk of unlawful killings, enforced disappearance, slavery and
forced labour, arbitrary detention, torture, ill-treatment, trafficking, gender-based violence, extortion,
exploitation, lack of access to health, housing, education and other human rights violations and abuses
by both State and non-State actors.10 The findings of this report further strengthen the evidence that
Libya is not a safe place for migrants due to the risk of collective expulsion, refoulement, and other
human rights violations.
8
Libya is a State party to eight of the nine core international human rights law instruments, including the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD); International Covenant on Civil and Political Rights (ICCPR); International
Covenant on Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); Convention on the Rights
of the Child (CRC); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW);
and Convention on the Rights of Persons with Disabilities (CRPD). See, https://indicators.ohchr.org/. At the regional level, Libya has also
ratified the Arab Charter on Human Rights (Arab Charter), the African Charter on Human and Peoples’ Rights (African Charter) and the
Protocol to the African Charter on the establishment of the African Court on Human and Peoples’ Rights.
9
OHCHR, “Lethal Disregard”, supra note 6.
10
UNSMIL/OHCHR, Desperate and Dangerous, and UNSMIL/OHCHR, “Detained and Dehumanized”, supra note 5. See also, OHCHR,
Shocking Cycle of Violence for migrants departing Libya to seek safety in Europe, 2 October 2020; OHCHR, Press briefing note on
Migrant rescues in the Mediterranean, 8 May 2020; OHCHR, Press briefing note on Libya, 28 April 2020; OHCHR, Press briefing note
on Libya, 20 December 2019; OHCHR, Statement by UN High Commissioner for Human Rights Michelle Bachelet, Attack on Libyan
migrant detention centre, 3 July 2019; OHCHR, Press briefing note on Libya, 7 June 2019; all available at: https://www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=24681&LangID=E.
iv
© Louis Hansel/UNSPLASH Unsafe and Undignified : The forced expulsion of migrants from Libya
1
Introduction and Methodology
1
While no official government data exists, the International Organization for Migration (IOM) estimates
that there are currently around 610,128 migrants comprising more than 44 nationalities in Libya,11
many of whom are undocumented and, therefore, at risk of being subject to forced return. There is no
internationally agreed definition of “return” in the context of migration. In the absence of an agreed
legal definition, OHCHR understands return to be:
An umbrella term to refer to all the various forms, methods and processes by which migrants are returned
or compelled to return to their country of origin or of habitual residence, or a third country. Returns may
thus include deportations, expulsions, removals, rejections at the border, extraditions, repatriations,
handovers, transfers or other types of return as defined in different national legal frameworks and
practices. In practice, returns are often characterized as either “forced” or “voluntary”, though the
reality is often less clear-cut.12
For the purposes of this report, the terms “forced return”, “expulsion”, “removal” and “deportation”
are used interchangeably to refer to the involuntary return of migrants from Libya.
While States have legitimate interests in governing their borders, including in order to protect human
rights and respond to transnational organized crime, international borders are not zones of exclusion or
exception for human rights obligations.13 States must exercise their jurisdiction at their international
borders in full compliance with their human rights obligations.
The UN Special Rapporteur on the human rights of migrants has previously highlighted that State
efforts to return migrants to their countries of origin are often expensive, difficult to implement and
problematic to carry out in accordance with international human rights law.14 Moreover, in the absence
of sufficient safe and regular pathways for migrants to regularly enter and remain in a country—and
especially where the drivers of precarious migration persist—migrants who are forcibly returned may
be left with few other options than to undertake renewed precarious and irregular journeys.15 The
failure to safeguard migrants’ rights in the context of return has been demonstrated to lead to a number
of serious human rights concerns globally, such as the risk of refoulement and collective expulsion.16
In 2019 and 2020, at least 7,500 migrants have been expelled from Libya’s external land borders.17
According to official statistics from the Libyan Directorate for Combatting Illegal Migration (DCIM),
11
IOM, Displacement Tracking Matrix (DTM) Libya’s Migrant Report: Round 38, July - September 2021, available at https://displacement.
iom.int/reports/libya-%E2%80%94-migrant-report-38-july-%E2%80%94-september-2021.
12
See, OHCHR/UNCTT, Human Rights at International Borders: A Trainer’s Guide (2021), available at https://www.ohchr.org/
Documents/Publications/HR_InternationalBorders.pdf; and OHCHR/GMG, Recommended Principles and Guidelines on the Protection
of the Human Rights of Migrants in Vulnerable Situations (2018), available at: https://www.ohchr.org/Documents/Issues/Migration/
PrinciplesAndGuidelines.pdf; See also, CAT, General Comment No. 4 (2017) on The implementation of article 3 of the Convention in the
context of article 22, CAT/C/GC/4, para. 4; CCPR, General Comment No. 15 (1986) on The position of aliens under the Covenant,
HRI/GEN/1/Rev.9 (Vol. I), para. 9.
13
See, OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (2014), supra note 4.
14
A/HRC/38/41, para. 10; A/72/643, para. 39.
15
Ibid.
16
See OHCHR, Expert Meeting on protecting the human rights of migrants in the context of return, Informal Summary, 6 March 2018,
available at: https://www.ohchr.org/Documents/Issues/Migration/Return/InformalSummary.pdf.
17
This is a conservative estimate derived from official statistics published by the Libyan Ministry of the Interior’s Benghazi branch of the
Directorate for Combatting Illegal Migration (DCIM), on file with OHCHR. However, it should be noted that this official figure may not
include several forced returns documented by the UN and civil society organizations in Libya, including those taking place by de facto
authorities or from unofficial detention centres in Libya.
2
3,375 “deportation incidents” were carried out from Libya in 2019 and 5,182 such “incidents” were
carried out in 2020.18 These returns were primarily of migrants from Egypt, Sudan and Chad, but
also included nationals of Algeria, Bangladesh, Burkina Faso, Cameroon, Ethiopia, Ghana, India,
Jordan, Mali, Morocco, Niger, Nigeria, Pakistan, Senegal, Somalia, South Sudan and Syria.19 Because
the officially reported figures provide no disaggregation indicating the age and gender of returnees,
nor of the legal basis for their return, it is difficult to verify their accuracy.20 Moreover, independent
monitoring of forced returns by UN and civil society actors in Libya indicate that DCIM’s official
figures may represent a significant undercount as they do not systematically account for forced returns
being carried out by de facto Libyan authorities, including from unofficial detention centres operated
by the Libyan National Army (LNA), militias or non-State actors affiliated with the internationally
recognized Government of National Unity (GNU).21
18
DCIM statistics on file with OHCHR.
19
DCIM statistics on file with OHCHR. Nationalities listed according to the total number of “deportation incidents” reported.
20
There are also several internal discrepancies with the officially reported DCIM figures. For example, the figures include a total of 925
returns carried out in 2019 and 2020 by the International Organization for Migration (IOM), which are not typically understood to be
deportations carried out by the State. Additionally, the official 2020 figures indicate 3,657 Egyptian nationals were deported from the
Musaid border crossing station in north-eastern Libya. However the total number of deportations through the Musaid station are recorded
as only 3,587, or 70 fewer individuals. It is unclear whether such discrepancies are due to simple counting errors or whether there is
cause for concern regarding the fate and whereabouts of these missing individuals. Other internal discrepancies include, in both 2019
and 2020, inconsistencies between the number of “sick persons” indicated as deported and, in 2020, a discrepancy in the total number
of persons indicated as deported by nationality versus the overall figure provided.
21
OHCHR interview.
3
The report covers the period from January 2019 to December 2020 and is based on interviews with
migrants in Libya and its neighbouring countries conducted by OHCHR, as well as on information
received from relevant experts, NGOs, UN partners and other stakeholders. The findings of this report
are also based on information gathered through desk research and other remote monitoring activities
throughout the reporting period, including meetings with relevant stakeholders, official statistics,
reports by national and international organizations, views and observations of international and
regional human rights mechanisms, and public media reports.
4
© DCIM
2
Context
Libya shares more than 4,000 km of land borders with six countries – Algeria, Chad, Egypt, Niger,
Sudan and Tunisia – and over two-thirds of migrants in Libya originate from the neighbouring countries
of Chad, Egypt, Niger and Sudan.22 However, there are also tens of thousands of migrants in Libya
from across North Africa, the Middle East, West Africa and Asia, including a significant number of
nationals of Bangladesh, Burkina Faso, Eritrea, Ethiopia, Ghana, Guinea, Mali, Morocco, Nigeria,
Senegal, Somalia, Syria, and Tunisia, as well as the State of Palestine.23 Approximately 10 percent of
22
IOM, supra note 11, p. 26.
23
6
all migrants in Libya are women and an additional 10 percent are children, including two percent who
are unaccompanied or separated.24
Libya is not a party to the 1951 Convention Relating to the Status of Refugees or its Protocol. Despite
having ratified the 1969 OAU Convention relating to refugees, it does not have a functioning national
asylum system. As of 31 December 2020, the United Nations High Commissioner for Refugees
(UNHCR) had registered 44,725 refugees and asylum seekers in Libya.25 However, the actual number
of asylum seekers is believed to be much higher given UNHCR’s limited access to persons of concern
as well as restrictive governmental policies that only permit migrants of designated nationalities to
register with UNHCR as asylum-seekers.26
In addition to those officially registered by UNHCR, there are an unknown number of migrants in
Libya who fall outside the specific legal category of “refugee”, but who nevertheless cannot be forcibly
returned on grounds related to the principle of non-refoulement or other obligations under international
human rights law. As Member States acknowledged in the New York Declaration for Refugees and
Migrants, migrants are often compelled to move for a range of complex and inter-connected reasons,
including conflict and persecution, extreme poverty, food insecurity, water scarcity, the adverse impacts
of climate change and environmental degradation, and other human rights violations in their countries
of origin.27 Such migrants in vulnerable situations may require specific legal protection, including in
some cases from forced return, as a result of the situations compelling them to leave their country of
origin, the circumstances in which they travel or the conditions they face on arrival, or because of
personal characteristics such as their age, gender identity, disability or health status.28
Libya has historically been a transit and destination country for mixed migration from Sub-Saharan
and North African countries due to its geographic location, extensive land and sea borders, reliance on
foreign labour and historically open immigration policies.29 From the 1970s to 1990s, the Government
of Libya actively encouraged migration to help meet its domestic labour needs.30 However, beginning in
the 2000s, Libya became more restrictive in its approach to migration, in part in response to pressure
from European countries to stop onward movement.31 During this period, visa requirements for all
nationalities, except for those from countries in the Maghreb region, were introduced, along with
policies of detention and deportation of undocumented migrants.32
A series of bilateral agreements signed between Italy and Libya beginning in 2000 included provisions
for fighting terrorism, organized crime and irregular migration, which led to a program of charter
flights financed by Italy to forcibly return undocumented migrants to their countries of origin, as well
as increased training and technical equipment for Libyan border security, and the construction of
centres in Gharyan, al-Kufra and Sabha for the purpose of detaining migrants prior to their forcible
24
25
UN High Commissioner for Refugees (UNHCR), Update Libya, 31 December 2020, available at: https://reliefweb.int/sites/reliefweb.
int/files/resources/UNHCR%20Libya%20Recap%202020.pdf.
26
UNHCR, UNHCR Position on the Designations of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation
Following Rescue at Sea, September 2020, para. 31.
27
UN General Assembly, New York Declaration for Refugees and Migrants, Resolution adopted by the General Assemblyon19September2016,
A/RES/71/1, para. 1; see also IOM/WFP, Hunger, displacement and migration: A joint innovative approach to assessing needs
of migrants in Libya, November 2019, p. 11, available at: https://displacement.iom.int/reports/dtm-wfp-hunger-displacement-and-
migration-libya.
28
OHCHR/UN-GMG, Recommended Principles and Guidelines on the Protection of the Human Rights of Migrants in Vulnerable Situations
(2018), supra note 12, p 5-7.
29
UNSMIL/OHCHR, Desperate and Dangerous, supra note 5, p. 10.
30
Id. at p. 5.
31
UNSMIL/OHCHR, “Detained and Dehumanized”, supra note 5, p. 5.
32
7
return from Libya.33 In 2001, the Libyan government expelled thousands of undocumented migrants
to the borders with Chad and Niger.34 From 2003-2005, these efforts were significantly expanded as
Libyan authorities forcibly returned roughly 140,000 migrants to their countries of origin in a process
described at the time as “arbitrary and chaotic”, with migrants arrested for irregular entry, stay or
exit; detained in a patchwork of detention and removal facilities, many of them with substandard
conditions; and then summarily removed from Libya following only basic verification of personal
identity and nationality.35
Additional bilateral agreements on border security and control were agreed between Libya and Algeria,
Chad, Sudan, and Tunisia in 2012 and with Egypt in 2013, with the aim of stopping irregular migration
and of combatting trafficking and smuggling of migrants across Libya’s land borders.36 In 2015, Libya
further extended entry bans to all nationals of Bangladesh, Iran, Pakistan, Sudan, Syria, Yemen and
the State of Palestine as part of stated government efforts to “fight illegal emigration” to Europe.37
Collectively, these efforts have made it virtually impossible for migrants to enter and remain in Libya
in a regular manner.
A Memorandum of Understanding (MOU) was signed with Italy in 2017 in part to “fight against illegal
immigration” and to reinforce Libyan border security.38 A similar MOU was signed in May 2020 with
Malta, agreeing to the creation of two co-ordination centres, one in Valletta and another in Tripoli, to
“offer the necessary support relating to combatting illegal immigration in Libya and the Mediterranean
region” and proposing that the European Commission and European Member States increase their
financial support in order to help the Libyan authorities secure their southern borders and provide “the
necessary technologies for border control and protection, as well as in the dismantling and follow up
of human trafficking networks, and curtailing the operations of organized crime”.39
Libyan law continues to criminalize the irregular entry, stay and exit of migrants from its territory.
Libyan Law No. 6 of 1987 on Organizing the Entry, Residence and Exit of Foreigners in Libya,
criminalizes irregular entry, stay and exit in Libya, punishable by a mandatory sentence of imprisonment
or fine, and followed by the possibility of further immigration detention while awaiting mandatory
deportation from the country and an indefinite re-entry ban.40 In 2004, Libya acceded to the Protocol
against the Smuggling of Migrants by Land, Sea and Air (“Smuggling Protocol”) and amended Law
No. 6 to impose a further mandatory sentence of imprisonment and fine on any person committing
migrant smuggling-related offenses.41 Libyan Law No. 19 on Combatting Illegal Migration, adopted in
2010, defines the concept of “illegal immigrant” and related “acts of illegal immigration”, determines
33
See Silja Klepp, Italy and its Libyan Cooperation Program: Pioneer of the European Union’s Refugee Policy?, (Middle East Institute)
1 August 2010, available at: https://www.mei.edu/publications/italy-and-its-libyan-cooperation-program-pioneer-european-unions-
refugee-policy#edn52; and European Commission, Technical Mission to Libya on Illegal Migration November 17– December 6, 2004
Report, 7753/05, p. 58, available at: http://www.statewatch.org/news/2005/may/eu-report-libya-ill-imm.pdf.
34
See, Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees, September 2006, https://
www.hrw.org/reports/2006/libya0906/libya0906web.pdf; and Sara Hamood, African Transit Migration Through Libya to Europe:
The Human Cost, January 2006, https://www.migreurop.org/IMG/pdf/hamood-libya.pdf.
35
Ibid.
36
37
Reuters, Libya’s official government bans Yemenis, Iranians, Pakistanis from entry, 1 September 2015, available at: https://www.reuters.
com/article/us-libya-security-ban-idUSKCN0R14PZ20150901; The Daily Star, Libya bans entry of Bangladesh workers, 18 May 2015,
available at: https://www.thedailystar.net/backpage/libya-bans-bangladesh-workers-83323.
38
Unofficial translation available at: https://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_
finalversion.doc.pdf.
39
Available at: https://www.statewatch.org/media/documents/news/2020/jun/malta-libya-mou-immigration.pdf.
40
Articles 17-19 of Law No. 6 of 1987 on Organizing the Entry, Residence and Exit of Foreigners in Libya, available at: https://security-
legislation.ly/node/34591 (unofficial translation).
41
Law No. (2) of 2004 amending certain provisions of Law No. 6 of 1987 on Organizing the Entry, Residence and Exit of Foreigners in
Libya, available at: https://security-legislation.ly/node/33686 (unofficial translation).
8
penalties for smuggling and harbouring of so-called “illegal immigrants”, and directs the mandatory
detention and deportation of all foreign nationals convicted of “acts of illegal immigration”.42
The law does not distinguish between different categories of migrants—such as refugees, migrant
workers, victims of trafficking, or children—nor account for their specific rights to protection under
international law.43 These developments—combined with the lack of opportunities for migrants to
regularize their migration status in Libya —have created an environment in which migrants in irregular
situations in Libya are under the constant threat of arrest and detention, often for an indefinite period
and in conditions amounting to torture or ill-treatment,44 followed by the further risk of deportation
from the country.
Since the 2011 uprising and armed conflict in Libya, violations and abuses of international human
rights law and violations of international humanitarian law have steadily increased, marked by
political instability, a general state of lawlessness, limited capacity of Libyan institutions to uphold
the rule of law, and widespread impunity for violations and abuses committed against migrants.45 The
renewal of armed hostilities in Libya in 2014 gave rise to a security, governance and humanitarian
crisis characterized by ongoing violence, the fragmentation of national institutions, and the collapse
of the rule of law.46 The internationally recognized Government of National Accord (GNA) began
operating from Tripoli on 30 March 2016 but faced challenges in asserting control over large parts of
the country, which were controlled by the Libyan National Army (LNA), and to enforce accountability
for the widespread human rights violations and abuses being committed against migrants and other
civilians.47
This situation, coupled with the breakdown of the economy and devaluation of the currency, contributed
to increasing numbers of migrants, including those who had lived in Libya for decades, embarking
on desperate and dangerous journeys across the Mediterranean Sea to seek safety and a life with
dignity in Europe.48 At the same time, the imposition of stricter border controls and increased border
management efforts, coupled with the lack of safe and regular migration pathways in the region, have
led to the emergence of abusive and often violent interactions between migrants and their smugglers
or traffickers.49
With the arrival of COVID-19 to Libya in 2020, migrants have faced additional human rights challenges,
including a lack of access to health services such as COVID-19 prevention, testing, treatment and
vaccination, in a context of aggravated risks of exposure to COVID-19 in Libyan detention centres, a
lack of access to decent work, livelihoods and social protection, border closures and other COVID-19
related mobility restrictions, and a noted rise in COVID-19 related stigma and xenophobia.50
In June 2020, the UN Human Rights Council established, through resolution 43/39, an independent
Fact-Finding Mission (FFM) on Libya with a one-year mandate to investigate alleged violations and
abuses of international human rights law and international humanitarian law committed in Libya
42
Law No. 19 (2010) on Combating Irregular Migration, available at: https://security-legislation.ly/node/32174 (unofficial translation).
43
44
See articles 7 of ICCPR, and 1 and 16 of CAT.
45
46
47
48
UNSMIL/OHCHR, Desperate and Dangerous, supra note 5, p. 10; See also OHCHR, “Lethal Disregard”, supra note 6.
49
See, Gabriella Sanchez, Migrant smuggling in the Libyan context: re-examining the evidence, September 2020.
50
See, OHCHR, A Pandemic of Exclusion: The impact of Covid-19 on the human rights of migrants in Libya, July 2021, available at:
https://www.ohchr.org/Documents/Issues/Migration/A_pandemic_of_exclusion.docx.
9
since 2016.51 In its report of October 2021, the FFM found that migrants in Libya had been subjected
to a litany of abuses committed on a widespread scale by State and non-State actors, with a high level
of organization and with the encouragement of the State, noting that the patterns of violence are
suggestive of crimes against humanity.52
On 23 October 2020, representatives of the GNA and LNA agreed to a permanent ceasefire, bringing
hope for a strengthening of Libyan institutions and ability to uphold the rule of law.53 This was followed,
in November 2020, with the first-round Libyan Political Dialogue Forum (LPDF), which adopted a
Roadmap for credible, inclusive and democratic national elections, to be held on 24 December 2021.54
51
See, https://www.ohchr.org/EN/HRBodies/HRC/FFM_Libya/Pages/Index.aspx.
52
OHCHR, Libya: Evidence crimes against humanity and war crimes committed since 2016, UN report finds, available at: https://www.
ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=27595&LangID=E.
53
Agreement for a Complete and Permanent Ceasefire in Libya, 23 October 2020, available at: https://unsmil.unmissions.org/sites/
default/files/ceasefire_agreement_between_libyan_parties_english.pdf. The agreement includes provisions for respecting international
human rights and humanitarian law and is based on the outcomes of the Berlin Conference of January 2020, which urged the parties
to amend Libyan legislation on migration and asylum to align with international law, to take steps to close all immigration detention
centres in Libya, and to hold accountable those who have committed human rights violations and abuses against migrants. See, The
Berlin Conference on Libya, Conference Conclusions, 19 January 2020, available at: https://unsmil.unmissions.org/berlin-international-
conference-libya-19-january-2020.
54
See, https://unsmil.unmissions.org/libyan-political-dialogue-forum.
10
© UNSPLASH
3
Exercising Due Diligence in
Support to Migration and
Border Management in Libya
International support to migration and border management in Libya has historically been provided
primarily through bilateral State-to-State agreements.55 Today, the overwhelming majority of logistical,
financial and capacity-building support to Libya’s migration and border management comes through
cooperation with the European Union. Since its creation in November 2015, the EU Emergency Trust
Fund for Africa (EUTF) has been the EU’s main tool for actions to support migration related issues in
Libya and has mobilised at least €435 million in funding for migration-related projects and programmes
in Libya.56 This has included several major EU-funded projects in support of migration and border
management in Libya,57 such as a €10 million programme on “Support to Rights-based Migration
Management and Asylum in Libya” implemented by the International Centre for Migration Policy
Development (ICMPD) and the International Federation of Red Cross and Red Crescent Societies
(IFRC)58 and a two-phase €61.3 million project on “Support to Integrated Border and Migration
Management in Libya” implemented by the Italian Ministry of the Interior and IOM.59
A dedicated EU Border Assistance Mission (EUBAM) in Libya, launched in 2013, is also contributing
strategic policy advice and technical capacity support to the Libyan authorities, including by training
55
Human Rights Watch, Stemming the Flow, supra note 34.
56
EUTF for Africa, Factsheet: EU Support on Migration in Libya, June 2020, available at: https://ec.europa.eu/trustfundforafrica/
sites/default/files/july_2020_eutf_factsheet_libya_2.pdf; See also EEAS, EU-Libya relations, available at: https://eeas.europa.eu/
headquarters/headquarters-homepage_en/19163/EU-Libya%20relations.
57
See, EUTF for Africa, Libya, available at: https://ec.europa.eu/trustfundforafrica/region/north-africa/libya.
58
Available at: https://ec.europa.eu/neighbourhood-enlargement/sites/default/files/c_2013_9196_annex_en.pdf.
59
Available at: https://ec.europa.eu/trustfundforafrica/sites/default/files/t05-eutf-noa-ly-04_modified.pdf (first phase); and https://
ec.europa.eu/trustfundforafrica/sites/default/files/t05-eutf-noa-ly-07.pdf (second phase).
12
and providing advice on ‘integrated border management’60 to hundreds of Libyan border officials;
piloting a project together with Italy and the European Border and Coast Guard Agency (FRONTEX)
to train the General Administration for Coastal Security (GACS); setting up a cross-ministerial Border
Management Working Group (BMWG); and drafting a proposal (‘White Paper’) for the “comprehensive
reform of border administration” in Libya.61
Several UN Special Procedures mandate-holders of the Human Rights Council, including the Special
Rapporteur on the human rights of migrants and the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, have previously raised concerns that cooperation
with Libya on migration and border management appears to be largely conducted within a securitized
approach that emphasizes policing and border control, often to the detriment of human rights.62
More recently, concerns have been raised at the European Parliament and by migrant advocates,
academics and human rights defenders, that EU support to migration and border management in
Libya may be facilitating the abuse of migrants by containing them in a country where their lives
and dignity are at risk.63
In order to ensure the effective respect, protection and fulfilment of human rights, OHCHR has
recommended States adopt a human rights-based approach (HRBA) to migration.64 An essential
aspect of any HRBA to international cooperation on migration and border management is to exercise
sufficient due diligence to prevent, mitigate and remedy reasonably foreseeable human rights violations
or abuses committed by other States and private actors as a direct result of such cooperation.65 It
is recommended that before adopting new external policies or engaging in bilateral or multi-lateral
cooperation on migration, States undertake human rights impact assessments and consult migrants
and other relevant stakeholders on the potential impacts of their actions.66 States should also take steps
to immediately review and suspend cooperation measures that have a negative or disproportionate
impact on the human rights of migrants.67
60
Art. 4 of the Regulation (EU) 2016/1624 (European Border and Coast Guard Regulation) describes the main components of IBM as:
border control; prevention and detection of cross-border crime; referral of persons who are in need of, or wish to apply for, international
protection; search and rescue operations for persons in distress at sea; risk analysis for internal security and security of the external EU
borders; cooperation with third countries, focusing on neighbouring countries and those which have been identified as countries of origin
and/or transit for irregular migration; and return of third-country nationals who are subject to return decisions. See, https://ec.europa.
eu/home-affairs/content/european-integrated-border-management_en.
61
See, e.g. Euobserver, EU to help draft Libya’s strategy on border security, 18 September 2020, available at: https://euobserver.com/
migration/149468.
62
See, e.g. UN Special Rapporteur on the human rights of migrants, Regional study: management of the external borders of the European
Union and its impact on the human rights of migrants, A/HRC/23/46, 24 April 2013; see also Press Release, EU ‘trying to move
border to Libya’ using policy that breaches rights, 17 August 2017, available at: https://www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?LangID=E&NewsID=21978.
63
See, e.g. European Parliament, Report on human rights protection and the EU external migration policy, 2020/2116(INI), available at:
https://www.europarl.europa.eu/doceo/document/A-9-2021-0060_EN.html; See also NGOs Joint Statement, EU: Time to review and
remedy cooperation policies facilitating abuse of refugees and migrants in Libya, 28 April 2020, available at: https://www.hrw.org/
news/2020/04/28/eu-time-review-and-remedy-cooperation-policies-facilitating-abuse-refugees-and#_ftn5; Oxfam International, The EU
Trust Fund for Africa: Trapped between aid policy and migration politics, 30 January 2020, available at: https://www.oxfam.org/en/
press-releases/eu-aid-increasingly-taken-hostage-migration-politics; and The New Humanitarian, The legal battle to hold the EU to account
for Libya migrant abuses, 10 August 2020, available at: https://www.thenewhumanitarian.org/analysis/2020/08/10/Libya-migrant-
abuses-EU-legal-battle.
64
A human rights-based approach brings the treatment of migrants as human beings to the forefront of all discussion and programming on
migration, and prioritizes strengthening the capacities of migrants to claim their rights, and of duty-bearers to uphold their human rights
obligations. See OHCHR, Improving Human Rights-Based Governance of International Migration, 2014, available at: https://www.
ohchr.org/Documents/Issues/Migration/MigrationHR_improvingHR_Report.pdf.
65
See Monnheimer, M. (2021). Due Diligence Obligations in International Human Rights Law. Cambridge: Cambridge University Press; See
also Ferstman, C. (2020). Human Rights Due Diligence Policies Applied to Extraterritorial Cooperation to Prevent “Irregular” Migration:
European Union and United Kingdom Support to Libya. German Law Journal, 21(3), 459-486.
66
OHCHR/GMG, Recommended Principles and Guidelines on the Protection of the Human Rights of Migrants in Vulnerable Situations
(2018), supra note 12, Principle 1, Guideline 2, p. 21.
67
Ibid.
13
Within the UN system, all UN offices, agencies, funds and programmes, as well as peacekeeping
operations and special political missions, are required to adhere to the Secretary-General’s Human
Rights Due Diligence Policy on Support to Non-United Nations Security Forces (HRDDP).68 The
HRDDP requires UN entities contemplating providing support to non-UN security forces, including
police, border guards, coast guards and other immigration officials, to first conduct a risk assessment in
order to identify the risk that such forces will commit grave violations of international humanitarian,
human rights or refugee law.69 If, as a result of that assessment, it is determined that there are substantial
grounds to believe that there is a real risk of such violations taking place, the UN entity must put in
place effective measures to eliminate or minimize that risk (‘mitigating measures’).70 Where a UN entity
has engaged in the provision of support to non-UN security forces, and subsequently receives reliable
information that the recipient forces are committing grave violations of international humanitarian,
human rights or refugee law, the UN entity must intercede with the relevant national authorities with
a view to bringing those violations to an end.71 If, despite the application of mitigating measures or
intercession with relevant authorities, grave violations persist, UN entities are required to suspend or
withdraw their support.72
In conclusion, all Member States should ensure that their policies include a human rights based-
approach and exercise due diligence in all their interactions with Libyan authorities on migration
and border management, particularly given the known risks of grave human rights violations in this
context
68
See United Nations, Guidance Note - Human Rights Due Diligence Policy on UN Support to Non-United Nations Security Forces (2015),
available at https://unsdg.un.org/sites/default/files/Inter-Agency-HRDDP-Guidance-Note-2015.pdf.
69
HRDDP, paras. 14-17. For the purpose of the HRDDP purpose, see the meaning of “Grave violations” in its para. 12.
70
Ibid.
71
HRDDP, paras. 26-27.
72
Ibid.
14
© DCIM
4
Key Human Rights Challenges
Faced by Migrants in the
Context of Forced Return
Focusing on the laws, policies and practices impacting the human rights and protection of migrants in
the context of forced return, OHCHR identified the following set of selected challenges, which have
given rise to serious human rights violations and abuses. These have been identified on the basis of
applicable norms and standards of international human rights law, as well as other relevant norms and
standards of international law.
A. LACK OF PROCEDURAL GUARANTEES AND DUE PROCESS
LEGAL FRAMEWORK
Under international human rights law, States have an obligation to respect and ensure the rights of
due process and procedural guarantees of all migrants, regardless of their status, in forced return
procedures. A State must comply with such obligations in its territory and all areas where the State
exercises effective control.73 This includes inter alia the right to an individual assessment of the
lawfulness of the return measure as well as of the individual circumstances of each person, including
any foreseeable, personal and real risk of irreparable harm if they are returned. Each case should be
examined individually, impartially and independently by the competent administrative and/or judicial
authorities, in conformity with due process and essential procedural safeguards, such as a prompt and
transparent process, access to information, legal representation, interpreters and translators, and the
ability to challenge the legality of the return decision.74 Access to an effective remedy requires that the
person concerned have the right to seek a stay of the return, pending the final decision by a competent
and independent authority.75
73
See, OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (2014), supra note 4, Principle A.7.
74
ICCPR, art. 6, 7, 13(in case of aliens lawfully in the territory of the State) and 14; CCPR, General Comment No. 31 (2004) on The nature
of the general legal obligation imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, para. 12; CRC, art. 12(2) and
22; ICMW, art. 22(1-9); Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on The general principles regarding the human
rights of children in the context of international migration, CMW/C/GC/3-CRC/C/GC/22, paras. 32(c, e and g), 33, 35 and 47; CAT,
arts. 1, 3 and 16; CAT, General Comment No. 4, supra note 12, para 13; CEDAW, art. 2; CEDAW, General Recommendation No. 32
(2014) on The gender-related dimensions of refugee status, asylum, nationality and statelessness of women, CEDAW/C/GC/32, paras.
25 and 31; CERD, General Recommendation No. 30 (2002) on Discrimination Against Non-Citizens, CERD/C/GC/30, paras. 25-28;
see also United Nations, Draft articles on the expulsion of aliens, adopted by the International Law Commission at its sixty-sixth session, in
2014, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/69/10), Article
26.
75
ICMW, art. 22(4); CMW, General Comment No. 2 (2013) on The rights of migrant workers in an irregular situation and members of
their families, CMW/C/GC/2, para 53. See also CAT, General Comment No. 4, supra note 12, para. 13.
16
Such guarantees are necessary to comply with the principle of non-refoulement, enshrined in
international human rights, humanitarian, refugee, and customary law. The prohibition of refoulement
requires States to ensure that they do not return any person from their territory or under their effective
control to a place where they will be at real and personal risk of persecution, death, torture or other
cruel, inhuman or degrading treatment or punishment, enforced disappearance or other irreparable
harm.76 It also prohibits transferring a person to another State from which the person may subsequently
face deportation or removal to a third State in which there are substantial grounds for believing that
the person would be in danger of irreparable harm.77 As an inherent element of the prohibition of
torture and other forms of ill-treatment, the principle of non-refoulement is characterised by its absolute
and non-derogable nature.78 The prohibition applies to all persons, irrespective of their citizenship,
nationality, statelessness, or migration status, and it applies wherever a State exercises jurisdiction,
including through effective control, even when outside of that State’s territory.79 The principle of non-
refoulement under international human rights law may be broader than the scope of the principle
under international refugee law since it may also require the protection of migrants not entitled to
refugee status.80
Collective expulsion, without an objective examination of the individual cases with regard to personal
risk, is a violation of international human rights law, including the principle of non-refoulement.81 Article
22 of the International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families (ICMW) explicitly prohibits the collective expulsion of migrant workers and members
of their families, requiring any expulsion to be examined and decided individually, and to be based
on the decision of a competent authority, in accordance with the law and procedural safeguards. Any
State wishing to expel a group of non-nationals is required to first carry out an, with due diligence
individualized assessment of the lawfulness of such measure and whether it would expose a person to
a foreseeable, personal and real risk of irreparable harm. The assessment should take into account a
full range of individual circumstances. Some of the relevant circumstances to be considered include,
but are not limited to, the best interests of the child, the right to health, the right to family life, the right
to rehabilitation of victims of trafficking and victims of torture, legal claims preventing expulsion due
to natural disasters, the adverse effects of climate change or environmental degradation, and risks of
persecution, torture, ill-treatment or other irreparable harm related to the fundamental prohibition of
refoulement.82
76
The prohibition of refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Article 3, 1), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 16, 1) as
well as the 1951 Convention Relating to the Status of Refugees (1951 Convention) (Article 33, 1). The principle of non-refoulement has
also been interpreted to be an implicit obligation of States parties to the ICCPR, the CRC, the CMW and the ICMW. See also, OHCHR,
Recommended Principles and Guidelines on Human Rights at International Borders (2014), supra note 4, p. 37.
77
CAT, General Comment No. 4, supra note 12, paras. 12 and 45; CCPR, General Comment No. 31, supra note 74, para 12; See also,
ICRC, Note on migration and the principle of non-refoulement (2018), p. 5, available at: https://international-review.icrc.org/sites/
default/files/irrc-904-19.pdf.
78
CAT, General Comment No. 4, para. 8.
79
Id. at para. 10.
80
CCPR, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life,
CCPR/C/GC/36, para. 31.
81
CAT, General Comment No. 4, supra note 12, para. 13.
82
See, OHCHR, The principle of non-refoulement under international human rights law, available at: https://www.ohchr.org/Documents/
Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.
17
Accordingly, States should establish and implement procedural safeguards ensuring the right of each
person to have their case individually examined, so as to assess their individual circumstances and
protection needs under international human rights, humanitarian and refugee law. Furthermore, the
procedure applied must be child-sensitive and gender-responsive and special measures must be put
in place to allow migrants in vulnerable situations, including inter alia children, survivors of torture or
trauma, and trafficking victims, the opportunity to have their protection needs individually considered.83
The prerequisite to any return of a child, whether accompanied, unaccompanied or separated, is that
the decision to return is based on an independent and impartial best interests determination procedure
with the central involvement of child protection officials and that return has been found to be the
sustainable solution that upholds the best interests of the child.84 Considerations such as those relating
to general migration control cannot override best interests considerations.85
Individuals have the right to challenge the expulsion decision and to be heard by a competent authority
within a reasonable time. A first prerequisite to ensure this right is the duty to put in place appropriate
judicial and/or administrative mechanisms or to designate a competent authority to review the
challenged decision. The mechanism must be independent and impartial and be able to substantially
examine the claims brought before it. The Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families considers that the ‘competent authority reviewing the decision
of expulsion should ideally be a court’.86
The lack of due process and procedural safeguards in return procedures is a serious human rights
protection gap that can lead to violations of the prohibition of collective expulsion and the principle of
non-refoulement, including chain-refoulement. In April 2020, OHCHR expressed concern regarding
forced returns from Libya’s external land borders, noting that Libyan authorities appeared to be
summarily deporting migrants without access to asylum or other protection under international
human rights law, and without access to due process and essential procedural safeguards.87 Absent
such safeguards, OHCHR noted these returns appeared to be in violation of Libya’s international law
obligations prohibiting collective expulsion and therefore of the principle of non-refoulement.88
Libya’s national legal framework provides that any lawful deportation must be based either on a
judicial order or a “substantiated decision issued by the director of the General Directorate of Passports
and Nationality”.89 However, based on official DCIM statistics and OHCHR remote monitoring,
OHCHR has documented that Libyan authorities have arrested and deported at least 7,500 migrants
between January 2019 to December 2020, in operations appearing to lack meaningful due process
and procedural safeguards, including judicial oversight, fair trial rights, an individual assessment of
protection needs, access to legal assistance and interpreters, or the right to challenge the legality of the
return.90
83
(2018), supra note 12, Principle 5, Guidelines 5-6, p 29-30.
84
CMW and CRC, Joint General Comment No. 3/22, supra note 74, para. 33.
85
Ibid.
86
CMW, General Comment No. 2, supra note 75, para 53.
87
OHCHR, Press briefing note on Libya, 28 April 2020, available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.
aspx?NewsID=25834&LangID=E.
88
Ibid.
89
Law No. 19 of 2010 on Combatting Irregular Migration, article 17.
90
OHCHR interview.
18
This is consistent with the information received from NGO advocates and human rights defenders,
who have claimed that Libyan officials and other de facto authorities across southern, eastern and
western Libya appeared to be stepping up forced returns, particularly as a response to “security”
concerns, crimes of irregular entry, and efforts to combat “contagious diseases”, including COVID-19,
and that these forced returns have been taking place in the absence of access to judicial procedures,
due process and procedural safeguards, including the ability to seek protection from refoulement or to
challenge the lawfulness of the return prior to their deportation.91 Among those who have reportedly
been forcibly returned were children and other migrants in vulnerable situations, including some 2,672
Egyptian nationals expelled at the Emsaid land border with Egypt, and 2,393 nationals of Chad,
Mali, Nigeria, Niger and Somalia expelled from the city of al-Kufra in southeastern Libya, to the land
borders with Chad and Sudan.92
OHCHR has also verified reports that Libyan authorities have “stepped up counter-smuggling
measures” in the Sahara Desert, resulting in an increasing number of pushbacks at the Libyan borders
with Algeria, Chad, Niger and Sudan, where access to judicial oversight and due process are difficult
to secure due to the remote location of the operations, weak Libyan judicial institutions and a lack
of access to legal assistance, interpreters and other essential procedural safeguards in these areas.93
According to IOM’s ‘Point of Entry Monitoring’ dashboard, at least some of Libya’s official border
crossing points are run by non-State groups.94 Furthermore, local communities in al-Kufra in the
southeast of Libya and Sabha in the southwest of Libya have been reported to have “unilaterally taken
steps to close their communities” to migrants in irregular situations by restricting access to their cities
and closing points of entry.95
It is of particular concern the large number of expulsions taking place from al-Kufra, where the
UN Secretary-General has noted “continued reports of large-scale deportations by officials of the
Directorate for Combating Illegal Migration along the southern border of Libya with Chad and Sudan
under the so-called ‘emergency procedures’, raising concerns of collective expulsion and possible cases
of refoulement,” with the detention centre in al-Kufra becoming a “de facto deportation centre”.96
OHCHR has received information from witnesses of the expulsions in al-Kufra, which included
the deportation of migrants from Chad, Eritrea, Ethiopia, Somalia, South Sudan, and Sudan. Most
migrants were reportedly deprived of their liberty, without a formal judicial order or possibility to seek
prompt judicial review of the measure, from their places of work or from the streets and subsequently
transferred to the al-Kufra detention centre, without any COVID-19 protection measures, after which
the detention centre transferred the migrants to the Chadian or Sudanese border.97 Migrants were not
afforded with procedures to challenge their deprivation of liberty or the expulsion decision. According
to the witnesses interviewed, officials awaiting migrants at the border only verified their names and
identities based upon identification provided by the migrants—where identification did not exist,
migrants were allegedly registered without verification as nationals of the countries to which they were
being expelled.98
91
See, e.g. Amnesty International, Libya: New evidence shows refugees and migrants trapped in horrific cycle of abuses, 29 September
2020, https://www.amnesty.org/en/latest/news/2020/09/libya-new-evidence-shows-refugees-and-migrants-trapped-in-horrific-cycle-
of-abuses/.
92
Ibid.
93
See, e.g. IMREF/MMC, Exploring the Impact of COVID-19 on the Vulnerabilities of Migrants on the Central Mediterranean Route, 1 July
2020, available at: https://www.alnap.org/system/files/content/resource/files/main/FULL-REPORT_IMREF-COVID-19-study-Part-2.pdf.
94
See, e.g., the Al Sarra border crossing with Chad:
https://iom.maps.arcgis.com/apps/Minimalist/index.html?appid=3b00fdbffaee4891a9bb1af865914153.
95
IMREF/MMC, supra note 93.
96
Report of the Secretary-General, S/2021/62, para. 60.
97
OHCHR interview.
98
OHCHR interview.
19
For example, on 10 April 2020 OHCHR received information that the al-Kufra detention centre
received 238 migrants from Chad, Ghana, Mali, Niger, Nigeria, and Sudan, who were all transferred
from the Ganfouda detention centre in Benghazi.99 Reportedly, there were hundreds of migrants being
detained in both Ajdabiya and Ganfouda detention centres, for the purpose of transferring them to
al-Kufra for subsequent deportation.100 In the following days, from 11-15 April 2020, nearly 900
migrants were reported to have been expelled by truck and bus from the al-Kufra detention centre to
the borders of Chad and Sudan, and the al-Kufra centre’s director was reported to indicate that they
would be “deporting more people faster than ever before”.101
As OHCHR has previously noted, large scale expulsions from remote parts of Libya without an
individualized assessment of the expulsion measure and access to legal procedures, afforded with due
process and essential procedural safeguards, to challenge such measure, give rise to serious concerns
of collective expulsion and the potential for return of persons in violation of the principle of non-
refoulement. Nor did migrants have access to organizations, such as the UNSMIL Human Rights,
Transitional Justice and Rule of Law Service (HRS), which could monitor the compliance of these
expulsions with Libya’s international human rights obligations.
RECOMMENDATIONS
To the official and de facto Libyan authorities:
• Refrain from forcibly returning migrants without undertaking an individualized assessment and in
the absence of a legal procedure, with due process and procedural safeguards, including rights to
fair proceeding, access to legal representation, access to interpreters and translators, the right to
challenge the legality of return, and the right to restitution or remedy, in all return decisions and
procedures.
• Ensure that expulsions only proceed on the basis of an individual assessment of the full range of
circumstances that may prohibit expulsion, in accordance with the principle of non-refoulement
and the prohibition of collective expulsions, including transferring a person to another authority
that would result in chain-refoulement. Individual assessments should be conducted with due
diligence and in accordance with international human rights law and standards.
• Ensure that children are only returned where it has been determined through an independent and
participatory process with the central involvement of child protection authorities, and taking into
consideration the views of the child, that return is in the best interests of the child. When children
are returned in accordance with their best interests, ensure that a guardian will accompany children
throughout the return process, that the family or a guardian has been identified, and that there is
clarity about reception and care arrangements of children in the countries to which they are being
returned.
• Adopt appropriate administrative and legislative mechanisms to grant regular migration status to
migrants in Libya, including those who cannot be removed on grounds related to the principle of
non-refoulement or other obligations under international human rights law.
99
OHCHR interview.
100
OHCHR interview.
101
See, e.g. Lori Hinnant and Isabel Debre, Desert or sea: Virus traps migrants in mid-route danger zone, 3 May 2020, available at: https://
apnews.com/article/virus-outbreak-united-nations-libya-guatemala-mediterranean-sea-8e03a003aaa32fa2cac91929c70a1b22.
20
To the European Union and its Member States:
• Strengthen due diligence to ensure that bilateral, regional and international cooperation agreements
do not have a negative effect on the human rights of migrants in Libya, including by adopting
human rights safeguards, monitoring and evaluation in all cooperation agreements and programmes
related to migration and border management in Libya.
• Require assurances by the Libyan authorities to uphold international human rights law, including
the principle of non-refoulement and the prohibition of collective expulsions, in the provision
of any equipment, technology, funding, technical or capacity-building support to migration and
border management, and make continued support to the Libyan authorities contingent upon a
demonstrated commitment and continual review that such prohibitions are being respected.
To United Nations agencies:
• United Nations entities providing support to DCIM or other Libyan State security forces engaged
in migration and border management, should fully apply the Human Rights Due Diligence Policy
by adopting mitigating measures to reduce the risk of grave or systematic violations of international
humanitarian, human rights, or refugee law, including the prohibitions of refoulement and
collective expulsion, and by withholding or suspending such support when mitigating measures are
insufficient to avoid such violations.
21
B. THE USE OF ARBITRARY ARREST AND DETENTION TO

ENFORCE RETURNS
LEGAL FRAMEWORK
The right to liberty of person is the fundamental right guaranteed to everyone without discrimination,
including all migrants, irrespective of status.102 Deprivation of liberty is defined as any form of detention
or imprisonment or the placement of a person in a public or private custodial setting which that person
is not permitted to leave at will.103 According to the Human Rights Committee, deprivation of liberty
involves more severe restriction of motion within a narrower space than mere interference with liberty
of movement under article 12 of the ICCPR and is without free consent.104 Detention in the course of
proceedings for the control of immigration is not per se arbitrary, but the detention must be justified
as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it
extends in time. Decisions regarding the detention of migrants must also take into account the effect
of the detention on their physical or mental health. Any necessary detention should take place in
appropriate, sanitary, non-punitive facilities and should not take place in prisons. The inability of a
State party to carry out the expulsion of an individual because of statelessness or other obstacles does
not justify indefinite detention.105 The Committee on Migrant Workers (CMW) and the Committee on
the Rights of the Child (CRC) understand “immigration detention” as any setting in which a person
is deprived of their liberty for reasons related to their, or their parents’, migration status, regardless
of the name and reason given to the action of depriving a person of their liberty, or the name of the
facility.106 Immigration detention is typically an administrative measure related to irregular entry, stay
or exit, however it also includes situations where migrants are detained on criminal grounds where
immigration offenses are criminalized.
International human rights law provides that no one shall be subjected to arbitrary arrest or deprivation
of liberty, including automatic, mandatory or indefinite detention, as well as detention in conditions
falling below international minimum standards. The fundamental guarantee against arbitrary detention
is non-derogable.107 The Human Rights Committee has stated that “the notion of ‘arbitrariness’ must
not be equated with ‘against the law’ but must be interpreted more broadly to include such elements
as inappropriateness, injustice, lack of predictability, and due process of law, as well as elements of
reasonableness, necessity and proportionality.”108 As the UN Working Group on Arbitrary Detention
(WGAD) has noted, all forms of deprivation of liberty are “detention” for the purposes of determining
whether someone is being arbitrarily detained,109 and the ICMW specifically guarantees that migrant
workers and members of their families shall not be subjected individually or collectively to arbitrary
arrest or detention.110
102
This right is recognized in article 3 of the UDHR, article 9 of the ICCPR, article 37 (b-d) of CRC, article 16 of the ICMW, article 6 of the
African Charter, and article 14 of the Arab Charter. See also CCPR, General Comment No. 35 (2014) on Article 9 (Liberty and security
of person), CCPR/C/GC/35, para. 3.
103
WGAD, Revised deliberation No. 5 (2018) on deprivation of liberty of migrants, A/HRC/39/45, para. 45; See also, Optional Protocol
to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2002), A/RES/57/199, art. 4(2).
104
CCPR, General Comment No. 35, supra note 102, paras. 5-6.
105
Id. at para. 18.
106
Joint General Comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in
the context of international migration in countries of origin, transit, destination and return, CMW/C/GC/4-CRC/C/GC/23, para. 6.
107
CCPR, General Comment No. 35, supra note 102, para. 66.
108
Id. at para 12.
109
WGAD, Revised deliberation No. 5, supra note 103.
110
ICMW, Art. 16(4).
22
According to the WGAD, immigration detention is largely arbitrary and should gradually be abolished,
as administrative offenses relating to irregular entry, stay or exit of migrants should not, under any
circumstances, have the same or similar consequences to those derived from the commission of a
crime, including the use of detention.111 Under international human rights law, immigration detention
must always be an exceptional measure of last resort. It must always be strictly lawful, based upon a
legitimate aim, justified as reasonable, necessary and proportionate, and imposed only where less
restrictive alternative measures have been considered and found inadequate to achieve the same
aim.112 Any necessary detention should take place in appropriate, sanitary, non-punitive facilities
and should not take place in prisons.113It must also be accompanied by procedural safeguards;
be of limited scope and duration; and be subject to periodic re-evaluation and judicial review.114
Furthermore, immigration detention is strictly prohibited in certain circumstances, for example when it
would constitute punishment for irregular entry or stay for the purposes of seeking asylum.115 Likewise,
according to the CMW and CRC “children should never be detained for reasons related to their or
their parents’ migration status”.116
The practice of detention in Libya is of outmost concern and affecting tens of thousands of migrants
every year. According to one recent survey of 119 migrant children and youth that attempted to transit
through Libya, nearly half of all those surveyed (47.9 percent) said they had been detained by the Libyan
authorities at least once due to their irregular immigration status.117 Similarly, migrants interviewed
by OHCHR in Malta in September 2020 overwhelmingly recounted the experience of having been
arbitrarily detained in Libya, often in harrowing conditions amounting to torture and ill-treatment.118
When disembarked in Libya following their interception at sea, or when arrested off the streets or
from their places of work for being in an irregular situation, which is considered as a crime under
Libyan law, thousands of migrants each year are detained in official DCIM detention centres, under the
authority of the GNU Ministry of Interior, where they continue to be subjected to a range of human
rights violations that have previously been well-documented.119 As of June 2019, there were 26 official
DCIM detention centres operating in the country, holding roughly 5,695 migrants, but by April 2020,
this had dropped to 11 official detention centres, holding roughly 1,500 migrants, the lowest figure
since 2019.120 However, according to reports these figures are unreliable due to the lack of access,
transparency and formal registration process by DCIM.121
111
WGAD, Revised deliberation No. 5, supra note 103, para. 10.
112
CCPR, General Comment No. 35, supra note 102,, para. 18; CMW, General Comment No. 5 (2021) on migrants’ rights to liberty,
freedom from arbitrary detention and their connection with other human rights, CMW/C/GC/5, para. 17; WGAD, Revised deliberation
No. 5, supra note 103, paras. 12-20.
113
114
Id. at para. 14.
115
UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention,
2012, para. 11.
116
CMW and CRC, Joint General Comment No. 4/23, supra note 106, para. 5.
117
Vasileia Digidiki and Jacqueline Bhabha, Returning Home? The reintegration challenges facing child and youth returnees from Libya to
Nigeria, https://cdn1.sph.harvard.edu/wp-content/uploads/sites/2464/2019/11/Harvard-FXB-Center-Returning-Home-FINAL.pdf, p.
23.
118
OHCHR, “Lethal Disregard”, supra note 6.
119
UNSMIL/OHCHR, “Detained and Dehumanized”, supra note 5.
120
IOM, Migrants Missing in Libya a Matter of Gravest Concern, 17 April 2020, available at: https://www.iom.int/news/migrants-missing-
libya-matter-gravest-concern.
121
Cuttitta, P. (2020). Libya’s Figures About Detained Migrants and Detention Centres: Reasons for Recent Fluctuations; available at: https://
www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/03/libyas-figures.
23
Moreover, many migrants have effectively been subjected to enforced disappearance upon being
transferred to unofficial detention centres, under the command of the LNA, militias or other non-State
actors affiliated with the GNU, or to “investigation centres” formally under the control of DCIM but
which may, in fact, be run by militias affiliated with DCIM.122 International observers, including UN
organizations in Libya, do not have access to these unofficial and “investigation” centres. According to
IOM, at least 3,200 persons intercepted and returned to Libya by the Libyan Coast Guard from January-
March 2020 have been deprived of their liberty in such centres where they remain unaccounted for.123
Libya’s detention regime is a critical tool in carrying out forced returns from the country. Historically,
detention centres in Libya have been used to carry out both forced and so-called “voluntary” returns
taking place across the country from Tripoli, Misrata and Surman in the north, to al-Kufra, and
Sabha in the southeast and southwest of Libya.124 There has been significant concern over the ongoing
detention of migrants in Libya and the often arbitrary and sub-standard conditions and human rights
violations and abuses they face.125 Libya’s detention policy also does not make exceptions for migrants
in vulnerable situations, including children and families, asylum seekers, victims of trafficking, survivors
of torture, or other migrants who are at a heightened risk of human rights violations.126
According to Médecins Sans Frontières (MSF), Libyan authorities have rarely carried out forced
returns from detention centres in the north of the country in recent years.127 However OHCHR is
concerned that a growing number of deportations appear to be taking place from a patchwork of new,
re-furbished or re-branded “Gathering and Return Centres” across the country under the control of
DCIM, including in Dirj, Tiji, Surman al-Mahmiya, Tripoli (al-Mabani and Ain Zara), and al-Kufra.
In some cases, detention centres that had been closed due to past human rights violations committed
against migrants are among those being re-opened as “Gathering and Return Centres”. For example,
Ain Zara and Shara’ al-Zawiya in Tripoli, and Aburshada in Gheriyan were reopened in early 2021,
with some DCIM officials earlier suspected of committing grave violations against migrant detainees
appointed to head these detention facilities.128
According to DCIM figures, throughout 2019 and 2020, at least 5,693 Egyptian migrants have been
transferred from detention centres under the control of the Benghazi DCIM in the east of Libya to the
Musaid border crossing station at the border with Egypt, from where they have subsequently been
expelled.129 As early as May 2019, OHCHR also observed that an increasing number of migrants,
primarily from Chad, Ethiopia, Somalia and Sudan, were similarly being transferred from detention
centres under the control of the Benghazi DCIM, particularly from Ganfouda and Ajdabiya, to the
al-Kufra detention centre in south-eastern Libya, from where they were subsequently expelled.130
OHCHR received information that those detained in al-Kufra often include women and children and
that conditions within the detention centre are marked by serious overcrowding and a lack of proper
infrastructure to provide basic sanitation and hygiene, including having only three functioning toilets
for over 200 detainees.131 Newly arrested or transferred migrants are reportedly detained in the al-
Kufra detention centre without COVID-19 testing or prevention measures, putting the health and
122
Global Detention Project, Libya Country Profile, 16 July 2020, available at: https://www.globaldetentionproject.org/countries/africa/
libya; See also, UNSMIL, UNSMIL Expresses Concern About Increased Enforced Disappearances in Libya, 18 March 2020, available
at: https://unsmil.unmissions.org/unsmil-expresses-concern-about-increased-enforced-disappearances-libya; and Infomigrants, Libya:
UNHCR Worried for Migrants in Detention Centers, 10 July 2020, available at: https://www.infomigrants.net/en/post/25936/libya-
unhcr-worried-for-migrants-in-detention-centers.
123
IOM, supra note 120.
124
Human Rights Watch, Stemming the Flow, supra note 35, p. 48.
125
See generally, UNSMIL/OHCHR, “Detained and Dehumanized”, supra note 5.
126
127
Médecins Sans Frontières, Trading in suffering: detention, exploitation and abuse in Libya, 23 December 2019, available at: https://
www.msf.org/libya%E2%80%99s-cycle-detention-exploitation-and-abuse-against-migrants-and-refugees.
128
OHCHR interview.
129
DCIM statistics on file with OHCHR.
130
OHCHR interview.
24 131
OHCHR interview.
© OHCHR Unsafe and Undignified : The forced expulsion of migrants from Libya
safety of detainees and personnel at risk.132 There have also been reports of poor quality food, lack of
clean water, health care, medication, soap and basic items for children being detained in the facility,
including milk and diapers.133
Additionally, OHCHR has noted an increased presence of ‘border brigades’ or ‘desert patrols’ along
Libya’s land borders, particularly in the west of the country near the borders with Algeria and Tunisia.134
These brigades, operating under the control of DCIM, are increasingly arresting and transporting
migrants to the above-referenced “Gathering and Return Centres” in Zuwara, al-Mahmiya in Surman,
Tiji and Dirj.135 The Secretary-General has noted with concern that these “desert patrol units” have
intensified security checks and may be engaging in discriminatory profiling and increased expulsions
outside of process and procedural safeguards.136
OHCHR has also received information that hundreds of migrants who have been “freed” by Libyan
security forces since 2019 following raids on trafficking compounds in Bani Walid, al-Kufra, Tazirbu
and Nesma, were subsequently handed over to either to DCIM, police directorates or Criminal
Investigation Departments where they were reportedly automatically placed in detention and subject
to imminent deportation.137 Reportedly, they were all detained in deplorable conditions, without access
to medical care, psycho-social support, or legal assistance.138
Amnesty International has also reported that deported migrants are sometimes arbitrarily arrested by
armed groups allied to the LNA and kept in detention centres across eastern Libya, including in Shahat,
Ganfouda, al-Baydha, Tubruq Ajdabiya, Derna and Talmitha, before being taken to land borders with
Egypt or to the al-Kufra “Gathering and Return Centre”, from where they are summarily expelled.139
As OHCHR has previously noted, Libya’s current immigration detention regime is fundamentally
arbitrary, marked by prolonged and indefinite detention in sub-standard conditions amounting to
ill-treatment, and resulting in a range of human rights violations including torture, sexual violence,
132
OHCHR interview.
133
OHCHR interview.
134
OHCHR interview.
135
OHCHR interview.
136
Report of the Secretary-General, S/2021/62, para. 60.
137
OHCHR interview.
138
OHCHR interview.
25
139
Amnesty International, supra note 91.
enforced disappearance, trafficking, and the routine denial of migrants’ economic, social and cultural
rights, including adequate food, water and medical care.140 The use of these detention centres to carry out
forced returns from Libya, including both unofficial and official centres being re-branded as “Gathering
and Return Centres”, raise serious human rights concerns that migrants are being summarily expelled
from centres that violate the non-derogable prohibition of arbitrary detention, and that may be further
exposing migrants to torture, ill-treatment and other serious human rights violations in the context of
return procedures.
RECOMMENDATIONS
To the Libyan authorities:
• Immediately release all arbitrarily-detained migrants from both unofficial and official detention
centres, including “investigation” centres and “Gathering and Return Centres”, prioritizing the
release of individuals in particularly vulnerable situations.
• Prioritize the development and implementation of non-custodial alternatives to detention, in line

with international human rights law, such as safe and accessible shelter in the community, consistent
with migrants’ right to an adequate standard of living, and gradually close all Libyan immigration
detention centres.
• Amend Libyan legislation, including Laws no. 6 of 1987 and no. 19 of 2010, to decriminalize
irregular entry, stay and exit from the country, and end the practice of mandatory detention of
migrants for the purposes of forced returns, ensuring that any immigration infractions are treated
as administrative, rather than criminal, offences.
• Ensure that children are never detained on the basis of their, or their parents’, migration status.
• Require adequate and sufficient assurances by the Libyan authorities to uphold the right to liberty,
including the prohibition of arbitrary detention, in all support to migration and border management,
and make continued support to the Libyan authorities contingent upon the development of a clear
plan to: release all arbitrarily detained migrants; end the criminalisation and mandatory detention
of migrants in an irregular situation; and develop viable human rights-based alternatives to
immigration detention, including in the context of returns.
• Support the urgent development and implementation of non-custodial alternatives to detention,

in line with international human rights law and standards, and the gradual closure of all Libyan
immigration detention centres.
To United Nations agencies and other international actors:
• UN entities providing support to DCIM within detention centres, including “Gathering and Return
Centres”, should fully implement and apply the Human Rights Due Diligence Policy by suspending
support where mitigating measures either remain unimplemented or are insufficient to avoid
grave violations of international humanitarian, human rights, or refugee law, including the risk of
collective expulsion and refoulement.
140
UNSMIL/OHCHR, “Detained and Dehumanized”, supra note 5, p. 14-17.
26
C. DANGEROUS AND UNDIGNIFIED FORCED RETURN

JOURNEYS
LEGAL FRAMEWORK
Migrants in forced return procedures must be treated with humanity and with respect for the inherent
dignity of the human person at all stages of the return process141 and migrants in vulnerable situations
are entitled to appropriate protection and care with due regard for their specific vulnerabilities.142
Under international human rights law, everyone also enjoys the rights to life143, liberty and security
of person144, including all migrants regardless of their status. The right to life is a right from which no
derogation is permitted, including in the context of return.145 The duty to protect the right to life requires
States to take special measures of protection towards persons within their jurisdiction or effective
control who may be in situations of vulnerability or whose lives have been placed at particular risk
because of specific threats or pre-existing patterns of violence.146 States also have a heightened duty
of care to take any necessary measures to protect the lives and bodily integrity of persons deprived
of their liberty, including by providing them with the necessary medical care and appropriate regular
monitoring of their health.147
The right to security of person further protects individuals from non-life-threatening injuries.148 Security
of person includes the right to freedom from intentional infliction of bodily or mental injury, including
use of force violations by government authorities, as well as to bodily and mental integrity, as well
as States taking appropriate measures to protect individuals from any foreseeable threats resulting
from the actions of either governmental or private actors.149 This requires, for example, appropriately
addressing known patterns of violence against certain groups or individuals.
All people within the jurisdiction of the State, including migrants in irregular situations, should also
enjoy economic, social and cultural rights, without discrimination.150 This includes the right to health,
and the right to an adequate standard of living, which comprises the rights to food, housing, water
and sanitation.151 The Committee on Economic, Social and Cultural Rights (CESCR) has pointed out
that the essential minimum content of each right set forth in the ICESCR should be preserved in all
circumstances, and that the State’s corresponding duties extend to all people under the effective
control of the State, including migrants in irregular situations.152
141
United Nations, Draft articles on the expulsion of aliens, supra note 74, Article 13.
142
Id. at Article 15.
143
ICCPR, Art. 6.
144
ICCPR, Art. 9.
145
146
CCPR, General Comment No. 36, supra note 80, para. 23. See also CCPR, A.S., D.I., O.I. and G.D v. Italy. CCPR/C/130/D/3042/2017,
paras. 7.8 and 8.5.
147
148
149
150
ICESCR, Art. 2 and 3; CESCR, Duties of States towards refugees and migrants under the International Covenant on Economic, Social and
Cultural Rights (2017), E/C.12/2017/1, para. 3
151
OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, 2014, p. 24, available at https://www.ohchr.
org/Documents/Publications/HR-PUB-14-1_en.pdf.
152
CESCR, Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights, paras.
7 and 9.
27
This includes the duties to secure freedom from hunger, to guarantee access to water to satisfy basic
needs, access to essential drugs, and access to education, which are core obligations of the State and
should not be restricted on the basis of nationality or legal status.153 The CESCR further recalled that,
consistent with the requirement of non-discrimination, States parties should pay specific attention to the
practical obstacles that certain groups of the population may encounter in the enjoyment of their rights
under the Covenant and that, due to their precarious situation, asylum seekers and undocumented
migrants are at particular risk of facing discrimination in the enjoyment of Covenant rights.154
In the particular context of COVID-19, international human rights law also requires inclusion of
migrants in the public health and recovery response to the pandemic.155 This includes ensuring that
migrants, regardless of immigration status, receive equal access to testing, treatment, vaccination
and information regarding COVID-19 in a language they can understand, including during return
procedures.156
Libya’s land borders are generally remote and marked by the presence of armed groups, militias,
traffickers, and criminal gangs that are known to abduct and exploit migrants. Migrants expelled
across Libya’s land borders by DCIM may be exposed to long and arduous journeys, a lack of adequate
transportation, food, water and medical attention, and are at risk of ultimately being abandoned in the
desert in inhospitable border areas where they are at further risk of abduction, dehydration, starvation
and death. Psychosocial distress appears to be particularly acute among returnees, who have reported
either experiencing or witnessing a range of human rights violations, including forced labour, beatings,
torture, sexual and gender based violence, and assaults during expulsions from Libya.157
OHCHR’s monitoring raises significant concerns that Libyan authorities do not always adequately
ensure the safety and welfare of deportees during forced return operations, nor effectively coordinate
with authorities in the countries to which they are forcibly returning migrants. For example, during
one expulsion of nearly 900 men and women from al-Kufra in April 2020, migrants reported being
driven across hundreds of miles of desert and being left in remote border towns in Chad or Sudan,
where they lacked sufficient food, water and shelter, and were forced to quarantine in an open lot as a
result of COVID-19 related restrictions.158 A Sudanese migrant deported from al-Kufra reported that
he and hundreds of other migrants were loaded onto crowded trucks and forced to endure a four-day
journey in which their vehicles became stuck in the desert.159 Others have reportedly been abandoned
in so-called “no man’s land” at international borders, unable to enter their countries of origin either
because their countries of origin do not recognize them as nationals or because they lack passports or
other identity documents necessary to enter.160
153
Ibid.
154
Ibid.
155
OHCHR, COVID-19 and the human rights of migrants: Guidance, 7 Apr. 2020, available at https://www.ohchr.org/Documents/Issues/
Migration/OHCHRGuidance_COVID19_Migrants.pdf.
156
Ibid. Also see, OHCHR, A Pandemic of Exclusion: The impact of Covid-19 on the human rights of migrants in Libya, supra note 50.
157
IMREF/MMC, supra note 93.
158
Hinnant and Debre, supra note 101.
159
160
28
According to information received by OHCHR, migrants expelled to Chad are forced to quarantine for
14 days in Ouanga Kebir, often without adequate food, shelter and other assistance.161 There is little
information about what happens to migrants deported to Sudan, with some indicating that migrants
may be subsequently transported by Sudanese officials to Khartoum, but without access to reintegration
or other support.162
OHCHR has received information that in some cases, migrants who have been arbitrarily or collectively
expelled across Libya’s southern land borders have later been abducted, re-trafficked and exploited by
criminal networks or armed groups. For example, a woman migrant alleged that, when trying to cross
into Libya, she and others she was travelling with were pushed back across the Sudanese border by
Libyan authorities and that following this pushback, she was abducted by an armed group in Sudan,
raped by unidentified armed men at the border, and subsequently re-trafficked into Libya.163
OHCHR has also received information that migrants have been forced by border officials to pay for
their own expulsions, including by purchasing their transportation and providing their own food, water
and medical care. For example, Sudanese migrants being deported from al-Kufra reported to OHCHR
that they were required to pay 260 Libyan dinar (approx. 57 USD) for their own transportation,
and confirmed that the deportations usually took place at night and were marked by frequent road
accidents.164 NGOs working in southern Libya also interviewed a number of migrants expelled and/
or about to be expelled between 2019 and 2020. According to their testimonies, victims alleged that
they were forced to arrange their own forced return to Sudan, including by paying for transportation,
fuel, food and water.165 Despite DCIM official assurances that such returns were “voluntary”, several
migrants alleged that they had never been given any choice and were forcibly returned against their
will.166
Notably, despite restrictions on freedom of movement and border closures introduced in Libya in March
2020 to mitigate the spread of COVID-19,167 similar restrictions do not appear to have been applied
to forced returns from Libya, which continued during this time, often under so-called “emergency
procedures”, including in the absence of COVID-19 testing or preventive measures.168 Instead, with
the arrival of COVID-19 to Libya in 2020, the accusation that irregular migrants may be “carriers of
contagious diseases” was among the primary reasons cited for their arrest and expedited deportation.169
The use of these unsafe and undignified journeys to carry out forced returns from Libya appears to be
leading to ongoing and routine violations of migrants’ rights to life, health and an adequate standard of
living. In extreme situations, they have led to instances of re-trafficking and may even result in migrants
dying or going missing during forced return operations. Such accounts raise serious concerns of the
failure to safeguard migrants’ dignity and security of person in forced return procedures, including by
protecting the rights and welfare of migrants in particularly vulnerable situations.
161
OHCHR interview.
162
OHCHR interview.
163
OHCHR interview.
164
OHCHR interview.
165
OHCHR interview.
166
OHCHR interview.
167
On 15 March 2020, the Government of National Accord closed the Wazin/Dehiba border and the Ras Ajdir with Tunisia, and on 30
March, the Libyan National Army closed the border between Libya and Egypt at Tobruk. Libya’s southern land border with Niger at
Tuommo was reported closed on 29 March 29. See, Mixed Migration Centre, The Impact of COVID-19 on the Mobility of Refugees
and Migrants in Libya, MMC North Africa Snapshot, May 2020, available at: https://drc.ngo/media/noli4nfw/4mi_north_africa_
may2020.pdf.
168
OHCHR interview.
169
Amnesty International, supra note 91.
29
RECOMMENDATIONS
• Avoid forced returns whenever possible as a practice that involves serious risks to the safety and
human rights of migrants. Suspend all “emergency procedures” in this context, and implement the
recommendation of the UN system to cease forced returns particularly during times of COVID-19
to protect the health of migrants and communities and uphold their human rights.170
• Prioritize alternatives to forced return, particularly for migrants in vulnerable situations, including
regularization, the extension of residence and work permits, or voluntary return that upholds
migrants’ human rights, including respect for their free, prior and informed consent.
• End dangerous forced return journeys, that include a lack of adequate healthcare, food, water and
sanitation, or the return of migrants to situations of destitution or inhospitable conditions where
their safety or human rights are threatened, such as deportation to so-called “no-man’s land”
between borders. Returns should not be carried out at night or involve dangerous methods of
transportation.
• Where returns are carried out in full compliance with international law, including that they do not
endanger the safety and dignity of the migrants concerned, cooperate with countries of origin to
ensure the safe and dignified reception and sustainable reintegration of migrants in full respect of
their civil, political, economic, social and cultural rights.
© DCIM
170
UN Network on Migration, Forced Returns of Migrants Must be Suspended in Times of COVID-19, 13 May 2020, available at: https://
migrationnetwork.un.org/un-network-migration-official-statement-forced-returns-migrants-must-be-suspended-times-covid-19.
30
D. LACK OF ACCESS TO JUSTICE AND EFFECTIVE REMEDY
LEGAL FRAMEWORK
Access to justice and effective remedy are general principles of the rule of law which ensure all
individuals, without discrimination, can exercise their rights, hold persons accountable for the violation
of their rights, and receive an effective remedy in case of rights violations.171
The ICMW affirms: “Migrant workers and members of their families shall have the right to equality
with nationals of the State concerned before the courts and tribunals”,172 and “any person whose
rights or freedoms as herein recognized are violated shall have an effective remedy”; “any persons
seeking such a remedy shall have his or her claim reviewed and decided by competent judicial,
administrative or legislative authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy”; and “the competent authorities
shall enforce such remedies when granted”.173
For a remedy to be effective, those seeking it must have prompt access to an independent authority,
which has the power to determine whether a violation has taken place and to order cessation of the
violation and reparation to redress harm. The independence of the judicial system, together with its
impartiality and integrity, are an essential prerequisite for upholding the rule of law and ensuring that
there is no discrimination in the administration of justice.174
Additionally, States should ensure that all forced returns are effectively monitored by independent
public bodies, such as National Human Rights Institutions, as well as allow for independent external
monitoring by civil society and other stakeholders, in order to ensure transparency and accountability
for possible human rights violations occurring during removal procedures.175
OHCHR has previously noted how the general climate of lawlessness in Libya affects migrants
disproportionately.176 Years of armed conflict and political divisions have weakened Libyan institutions,
including the judiciary, which have been unable to address the many human rights violations and
abuses committed against migrants by smugglers, traffickers, members of armed groups and State
officials, with near total impunity. The protection of human rights grows out of the ability of victims
to seek redress, which in turn helps produce positive human rights change. When judicial and other
accountability systems are weak or dysfunctional, this critical aspect of human rights is undermined
and severely threatens the protection of migrants’ rights.
Throughout the process of forced returns from Libya migrants appear to lack meaningful access to
justice and effective remedy for any harms suffered during the return process, and this gap is virtually
insurmountable once they have been expelled from Libya. For example, despite the several observed
171
Under international human rights law, the rights of access to justice and to an effective remedy are found, inter alia, in Articles 7, 8 and
10 of the UDHR, Article 2 of the ICCPR, Article 6 of the ICERD, Article 14 of the CAT, Article 18 of the ICMW; and Article 39 of the CRC.
172
ICMW, Article 18.
173
ICMW, Article 83.
174
UN General Assembly, Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International
Levels, 30 November 2012, A/RES/67/1, para. 13.
175
(2018), supra note 12, Principle 17 (2); see also OHCHR, Recommended Principles and Guidelines on Human Rights at International
Borders (2014), supra note 4, Guidelines 1(8),5 (6), 8 (19), 10 (9).
176
UNSMIL/OHCHR, Desperate and Dangerous, supra note 5, p. 4, 52.
31
human rights concerns noted above, OHCHR is unaware of a single legal case filed in Libya from
2019-2020 by, or on behalf of, migrants challenging for example, the lawfulness of their deportation,
the use of arbitrary detention to enforce their removal, or claims of mistreatment during the removal
process. There are also no known formal complaints mechanisms within DCIM for such claims to be
heard.
There is also an absence of independent monitoring of return procedures, due in part to the remote
locations from where many of Libya’s expulsions are taking place, as well as the inability of most
international organisations and human rights observers to access and publicly report on deportations
being carried out from both official and unofficial detention centres. Since April 2018, the UNSMIL
Human Rights, Transitional Justice and Rule of Law Service has not had regular access to migrants in
Libya despite repeated requests to the Libyan authorities. COVID-19 restrictions, security and logistical
constraints have further impeded UNSMIL’s and other actors’ ability to visit migrants in southern
Libya and to monitor and publicly report on their situation, including in the context of returns.
RECOMMENDATIONS
• Carry out independent, impartial, thorough and prompt investigations of all human rights
violations and abuses committed against migrants in the context of forced returns, including while
in pre-removal detention, imposing sentences commensurate with the seriousness of the offence,
providing adequate reparation to the victims and taking measures to ensure non-repetition.
• Strengthen or establish official mechanisms and procedures to receive allegations of human rights
violations and abuses affecting migrants during return procedures, and ensure migrants and
other stakeholders are informed of these mechanisms, while protecting migrants from potential
retribution as a result of any allegations lodged against State or non-State actors.
• Ensure unrestricted access to and monitoring of all relevant locations and procedures related
to forced returns by the UNSMIL Human Rights, Transitional Justice and Rule of Law Service,
National Human Rights Institution and other relevant actors.
• Regularly collect and make publicly available disaggregated data of the number and circumstances
of migrants subject to forced returns, while protecting migrants’ personal data and the right to
privacy. This should include, inter alia, age, sex, nationality, country of return, legal basis for the
return, and the official border point through which the return was carried out.
• Support increased monitoring of and reporting on forced return procedures and integrate this
information into due diligence assessments of ongoing support to migration and border management
activities in Libya.
• Condition continued support to migration and border management activities in Libya on a

demonstrated commitment of the Libyan authorities to strengthen Libyan judicial systems and to
uphold migrants’ rights to access justice and effective remedy.
32
© Ahmed Almakhzanji/UNSPLASH Unsafe and Undignified : The forced expulsion of migrants from Libya
5
Conclusion
33
While much has been said about the desperate and shocking situation of migrants trapped in Libya,
comparatively little attention has been paid to the fate of migrants who are being forcibly expelled
from Libya to its neighbouring countries.
Owing primarily to the lack of transparent and accessible data provided by the Libyan authorities,
but also to the lack of access and independent monitoring of return procedures, there are significant
knowledge gaps not only as to the overall number of migrants expelled from Libya in any given period
but, more importantly, as to the lives, safety and well-being of the thousands of migrants who are
forcibly expelled from Libya every year.
The central findings of this report indicate that forced returns from Libya overwhelmingly lack a
meaningful individual assessment within a procedure with due process and procedural safeguards, and
in which the affected migrant could challenge the decision of return. Such forced returns do not comply
with the principle of non-refoulement or the prohibition of collective expulsions and, thus, are contrary
to international human right law. Furthermore, the way that forced returns are being carried out from
Libya exposes migrants to risks of their physical integrity, trafficking and death in remote border
areas. It also significantly undermines migrants’ rights to liberty, security and human dignity, subjecting
migrants to arbitrary arrest and detention; as well as to a precarious situation that constitutes an
obstacle for the enjoyment of the essential minimum content of their economic, social and cultural
rights. Throughout these forced return procedures and following their expulsions, migrants are unable
to effectively challenge the lawfulness of their returns or to access justice, accountability and remedy
for harms suffered.
The documented forced return practices described above, together with findings of OHCHR’s previous
reports, provide further evidence that Libya cannot currently be considered a safe place for migrants.
Libyan authorities must urgently reform their migration and border governance policies and practices
in order to ensure they are fully consistent with Libya’s obligations under international law. Against
this background, the provision of operational, financial and capacity-building support to the Libyan
government requires greater due diligence and the institutionalization of adequate and sufficient
safeguards, including the conditioning of ongoing or future support on the protection of the human
rights of migrants and concrete achievements in migrants’ ability to access justice and accountability for
human rights violations and abuses committed against them in the course of forced return operations.
The EU, its Member States and institutions, and other stakeholders are encouraged to review current
cooperation agreements, programmes and activities in support of migration and border management
in Libya, to ensure they are exercising sufficient due diligence and ultimately promoting human rights-
based migration governance in Libya that prioritizes the protection of all migrants, regardless of status.
OHCHR stands ready to assist Libyan authorities, the EU, its Member States and institutions, and
other stakeholders in practical efforts to implement the recommendations contained within this report,
in order to ensure the effective respect, protection and fulfilment of the human rights of all migrants
in Libya.
34
Office of the United Nations
High Commissioner
for Human Rights (OHCHR)
Palais des Nations
CH 1211 Geneva, Switzerland
Telephone: +41 (0) 22 917 92 20
Email: [email protected]
Website: www.ohchr.org

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The forced expulsion of

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This publication has been coordinated by the OHCHR Migration Unit.

1. INTRODUCTION AND METHODOLOGY........................................................... 1

3. EXERCISING DUE DILIGENCE IN SUPPORT TO MIGRATION

4 KEY HUMAN RIGHTS CHALLENGES FACED BY MIGRANTS

B. THE USE OF ARBITRARY ARREST AND DETENTION TO ENFORCE RETURNS......................... 22

C. DANGEROUS AND UNDIGNIFIED FORCED RETURN JOURNEYS......................................... 27

D. LACK OF ACCESS TO JUSTICE AND EFFECTIVE REMEDY.................................................... 31

A. LACK OF PROCEDURAL GUARANTEES AND DUE PROCESS

To the official and de facto Libyan authorities:

To the European Union and its Member States:

To United Nations agencies:

B. THE USE OF ARBITRARY ARREST AND DETENTION TO

To the Libyan authorities:

• Prioritize the development and implementation of non-custodial alternatives to detention, in line

To the European Union and its Member States:

• Support the urgent development and implementation of non-custodial alternatives to detention,

To United Nations agencies and other international actors:

C. DANGEROUS AND UNDIGNIFIED FORCED RETURN

To the Libyan authorities:

D. LACK OF ACCESS TO JUSTICE AND EFFECTIVE REMEDY

To the Libyan authorities:

To the European Union and its Member States:

• Condition continued support to migration and border management activities in Libya on a

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