Living conditions in migrant detention centres in Libya continue to violate international law

In July 2020, the pope condemned Libyan migrant detention centres comparing them to concentration camps and asserting that no one can imagine the hell migrants are living through. Only two months later, in a report to the Security Council, UN Secretary-General Antonio Guterres decried many violations of international law in those centres and demanded that migrants and refugees be released and that the centres be closed. Many reports have shown that the situation for detained migrants in overcrowded centres without the necessary infrastructure is still highly problematic and that international law is still violated on a daily basis. This is happening despite forceful condemnations by many international players during the last years. Furthermore, the European Union and especially Italy are criticized for being henchmen not only because they are inactive but because they are even supporting the Libyan government without taking responsibility for what is happening. This article tries to untangle the many abuses and breaches of international law in Libyan migrant detention camps and attempts to shed light on the important role of the European Union and Italy as well as their responsibility to act in order to finally end the abhorrent conditions and atrocities that migrants in Libya have to suffer from. 

From rising numbers of refugees to the Italy-Libya Memorandum of Understanding (MOU)

For years migrants have chosen the Central Mediterranean route to get to Europe, to Malta and especially to Italy. Data provided by the UNHCR show that in 2014 there were about 170.000, in 2016 180.000 and in 2017 119.000 persons that took on the dangerous transit through the sea to get to Italy. Due to the lack of EU support the migratory pressure on Italy became increasingly high over the past years. Therefore, in 2017, the country chose to strike a bilateral deal, the Italy-Libya Memorandum of Understanding to cooperate in questions of migration and to limit the number of arriving persons. The MOU establishes mechanisms to train and strengthen Libyan forces and officials to combat illegal migration, effectively externalizing the border of the European Union (Beşer, & Elfeitori, Libya Detention Centers – A state of Impunity,2018). Migrants on their way to Europe are intercepted in the sea and brought back to Libya where they are put in detention camps. Those camps are generally run by the Libyan Ministry of the Interior, especially the Department of Combatting Illegal Migration (DCIM) or the Ministry of Defence but numerous other camps are under the control of several militias (UN Report to the Security Council, 2020). 

In the years following the accord, the number of people trying to get to Europe by crossing the Mediterranean Sea decreased to 23.400 in 2018 and to only 11.500 in 2019 according to UNHCR. Although the policy was successful in cutting down numbers of arrivals via the Mediterranean route, the consequences migrants have to face after being taken back to Libya, have been raising huge concerns ever since. For years those camps have been criticized for not providing adequate shelter for migrants. They were described as overcrowded on several occasions and thereby putting migrants’ health in danger. However, until today many camps are still detaining migrants that suffer from a hostile environment and ill-treatments. Also, the country is still entrenched in conflict and battles. Indiscriminate attacks are occurring frequently, exacerbating the already dire situation for migrants and refugees in the camps (Médecins sans frontiers, 2020). The abhorrent conditions and the treatment of migrants in detention camps also breaches international law as the Secretary General Guterres reasserted in his report to the Security Council

Violations of international law are still the order of the day in detention camps

Firstly, the detention of migrants as such is against international law. While under Libyan law it is established that all migrants are detained without distinction and the possibility to review the decision, this constitutes a violation of Article 9 of the International Covenant on Civil and Political Rights as well as customary IHL (see reports of Amnesty from 2020 and Human Rights Watch from 2019). Detention should just be implemented with a legitimate basis following an individual assessment of the migrant, otherwise, it is to be considered arbitrary and unlawful (Beşer & Elfeitori, 2018). Moreover, Human Rights Law establishes that nobody should be detained automatically based on his or her immigration status (Beşer & Elfeitori, 2018). 

Not only the reasons on which detentions are based upon but also the conditions in detention camps are problematic from a legal perspective. Amnesty International stated in its 2020 report that even though the situation has slightly improved, organizations still criticize the high number of migrants held in those camps without adequate ventilation and temperature regulation. Furthermore, the lack of clean water and sanitation facilities as well as the lack of food that is distributed in the centres, leads to malnutrition and its negative consequences for the health of all detainees and promotes the spread of diseases. Already in 2019 Human Rights watch decried, that the lack of health insurances and vaccinations for staff as well as the absence of healthcare professionals is worsening the situation in camps. Now, amidst the COVID-19 pandemic Médecins sans frontières alerts that the situation is even direr since the access to healthcare in case of an outbreak is not guaranteed for detainees. Thus,  conditions of detention in the camps violate International Law, according to Amnesty first and foremost the right to health, established in the International Covenant on Social, Economic and Cultural Rights as well as the right to have access to urgent care established in Article 28 of the International Convention on the Protection of the Rights of Migrant Workers and their Families. 

Furthermore, Amnesty names torture and ill-treatment the detainees suffer as another big problem in the camps. Several agencies and organizations report beatings with water pipes, hoses, metal rods as well as the exposure to electric shocks for talking back, complaining or even for no apparent reasons. Often, torture and ill-treatment are used as punishment (Alkhateeb, Libyan Detention Centers: Libya’s Legal and Regulatory Framework on Migration 2019). This violates not only the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) but also Article 7 of the ICCPR or Article 5 of the African Charter on Human and Peoples’ Rights. Furthermore, IHL norms, namely the Geneva Conventions and Protocols as well as rules of customary IHL, are violated. 

Additionally, forced labour occurs in many centres across Libya. Besides work inside the centres like cooking, cleaning and even washing the vehicles of guards the detainees must also frequently provide labour outside the camps without remuneration as explained in a report written by the Office of the High Commissioner for Human Rights. According to Amnesty many were forced to repair military vehicles or carry and load weapons and ammunition. If migrants refuse to carry out those tasks, they are often threatened with physical punishment and torture. This violates Article 8(3) (a) of the International Covenant on Civil and Political Rights and customary IHL that prohibit abusive and uncompensated labour. 

Another reason for concern is the alarming situation for women. According to Human Rights Watch women are accommodated separately in most detention camps but there are no female guards and there is no sufficient supply of female hygiene articles or adequate provision of maternal and prenatal healthcare. Female detainees often suffer sexual abuse and exploitation not only by smugglers but also by guards in the detention centres. Moreover, rape is used as punishment if detainees show themselves disobedient (Beşer & Elfeitori, 2018). Apart from Human Rights, the CAT and customary IHL, this ill-treatment of women also violates the Convention on the Elimination of All Forms of Discrimination against Women and the United Nations Rules for the Treatment of women prisoners

Also, children as another especially vulnerable group, should not be held in detention camps at all (Alkhateeb, 2019). According to the 2019 Human Rights Watch Report, children have to live in abhorrent conditions suffering from malnutrition and psychological and physical abuse, many times separately detained for a long time and placed in cells with adults. Furthermore, there is no adequate treatment for new-borns and infants. Those violations of the Convention on the Rights of the Child are still imminent as is shown in new reports of detained children in Libya

Lastly the general situation in Libya that resembles a war zone is exacerbating the suffering of migrants and puts them in danger. An alarming example of the perilous state of Libya was an attack conducted by a plane of a foreign country on the Daman complex in Tajoura where a camp is located, on 2 July 2019 confirmed and condemned by the UNSMIL mission. In two explosions caused by bombs 53 migrants and refugees died, 87 were left injured and many more traumatized. The aim of the attacks were weapon systems, munitions and military vehicles located nearby. Furthermore, the Daman complex is home to sites of the Ministries of Interior, Justice and Social Affairs as well as the Daman Brigade headquarters. 

The commander of the plane be it a foreign power or the LNA, as well as the Daman Brigade, are bound by (customary) international humanitarian law that is applicable in an armed conflict. Furthermore, Libya is a signatory of the four Geneva Conventions of 1949 and its Additional protocols. Based on those norms, violations were conducted by all parties involved. On the one hand the attacks constitute a breach of the principle of proportionality. It prohibits attacks that are expected to cause incidental loss of life or injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. On the other hand, the principle of precautions in attack was violated. It requires all parties to take feasible measures to avoid and, in any event, to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. Not only the attackers broke this law but also the Daman Brigade that failed to locate the centre in a different part or relocate the migrants and refugees, especially after receiving multiple warnings from several agencies like Amnesty and the UNHCR that pushed for such actions. 

Italy and the EU are also responsible for violations of international law

Although many national parties in Libya are committing these violations of international law, Italy as well as other EU countries should also be held accountable. They have been trying to externalize migration control to avoid being made responsible for the atrocities and conditions in the camps (Liguori, The 2017 Libya-Italy Memorandum and its Consequences, 2017). However, state complicity violates international law as well and Italy and the EU have to face their contribution to the suffering of migrants in Libya. Article 16 of the International Law Commission’s Articles of Responsibility of States for Internationally Wrongful Acts (ILC Articles) establishes that a state has to be held accountable for human rights violations if it aids or assists other states to commit those violations while having knowledge of those violations. A state which provides material aid that is used to commit those violations is equally responsible for them. The EU and Italy have supported Libya in controlling migration to Europe by training the coast guard and providing military assets and equipment or vessels (Dastyari & Hirsch, The Ring of Steel: Extraterritorial Migration Controls in Indonesia and Libya and the Complicity of Australia and Italy, 2019). Furthermore, Article 4 MOU provides a rule for financial support of detention centers by Italy. Additionally, Article 2(2) refers to EU funds as well as Italian funds that are being made available for Libya. These funds could be seen as a direct financial support of detention. Italy and the EU do so in full knowledge of what is happening on the other side of the Mediterranean Sea and therefore violate international law themselves (Dastyari & Hirsch, 2019). They should be held accountable and change their course on their migration policy towards Libya in order to end their hypocrisy when it comes to Human Rights. 

It is time to act 

For years, abuses and violations of international law in Libyan detention centres are decried by governmental and non-governmental agencies. Still many migrants are detained and suffer from abhorrent conditions, torture and forced labour on Libyan ground. National actors have to be held accountable. Additionally, the European Union and Italy have to join the United Nations and push for the closure of the detention centres immediately to end the unbearable situations migrants are facing on a daily basis. Even though the EU and Italy externalized migration issues trying to avoid accountability they are responsible for what is happening in Libya. In the end, alternatives to detention that do not violate international law have to be found. Moreover, migrants that still are in detention centres have to be rescued and provided with healthcare, food and water and it should be guaranteed that they are no longer in the midst of the raging conflict.

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