UN HRC press statement here.

Key points from Section F of the Report pertaining to Migrants:

• The [findings of the fact-finding mission] provide[ ] reasonable grounds to believe that acts of murder, enslavement, torture, imprisonment, rape, persecution and other inhumane acts committed against migrants form part of a systematic and widespread attack directed at this population, in furtherance of a State policy.  As such, these acts may amount to crimes against humanity. [Para 70];
• This finding [regarding a State policy] is made notwithstanding the responsibility that may be borne by third States and further investigations are required to establish the role of all those involved, directly or indirectly, in these crimes. [Para 70];
• This reports documents in particular the pattern of interceptions by the Libyan Coast Guards (“LCG”) to ensure disembarkation will take place in Libya, and the associated pattern of detaining migrants in detention centres run by the Department for Combatting Illegal Migration (“DCIM”), where they face intolerable conditions calculated to cause suffering and the desire to utilise any means of escape, including by paying large sums of money to militias, criminal gangs, traffickers and smugglers who have links to the State and profit from this practice. [Para 66];
• The LCG … interception [of migrant boats] is violent or reckless, resulting at times in deaths. On board, there are reports that LCGs confiscate belongings from migrants. Once disembarked, migrants are either transferred to detention centres or go missing,35 with reports that people are sold to traffickers. [Para 67];
• [T]he only practicable means of escape [from detention centres] is by paying large sums of money to the guards or engaging in forced labour or sexual favours inside or outside the detention centre for the benefit of private individuals. [Para 67];
• Several interviewees described that they endured the same cycle of violence, in some cases up to 10 times, of paying guards to secure release, sea crossing attempt, an interception and subsequent return to detention in harsh and violent conditions, all while under the absolute control of the authorities, militias and/or criminal networks. [Para 67];
• The commission of the above acts has been longstanding and on a massive scale. Based on reports of reliable organizations, the Mission established that since 2016, some 87,000 migrants have been intercepted by the LCG, and there are currently close to 7,000 migrants in DCIM detention centres, including large percentages of children. [Para 68];
• Furthermore, the above acts are not isolated incidents that can be attributed to rogue elements: they form part of a pattern…  [Para 68];
• The absence of accountability for abuses against migrants evidences a State policy… [Para 69].

Section F of the Report:

[***]

F.  Migrants

66.  Libya has long been both a destination country and a departure point for those fleeing violence or poverty. Reports indicate that the human rights situation of migrants, asylum seekers and refugees34 in Libya has deteriorated since 2016. The evidence gathered by the Mission, which included interviews with 50 migrants, established that from the moment that migrants enter Libya destined for Europe, they are systematically subjected to a litany of abuses. However, given time and resource constraints, the Mission focused on violations and abuses committed in Libya. This reports documents in particular the pattern of interceptions by the Libyan Coast Guards (“LCG”) to ensure disembarkation will take place in Libya, and the associated pattern of detaining migrants in detention centres run by the Department for Combatting Illegal Migration (“DCIM”) (figure 3), where they face intolerable conditions calculated to cause suffering and the desire to utilise any means of escape, including by paying large sums of money to militias, criminal gangs, traffickers and smugglers who have links to the State and profit from this practice.

67.  Libyan law criminalizes irregular entry, stay and exit. The investigations established that a migrant’s journey to Europe would normally start with the migrant paying money to a smuggler and subsequently boarding on a boat. The LCG would later proceed with an interception that is violent or reckless, resulting at times in deaths. On board, there are reports that LCGs confiscate belongings from migrants. Once disembarked, migrants are either transferred to detention centres or go missing,35 with reports that people are sold to traffickers. Interviews with migrants formerly held in DCIM detention centres established that all migrants—men and women, boys and girls—are kept in harsh conditions, some of whom die. Some children are held with adults, placing them at high risk of abuse. Torture (such as electric shocks) and sexual violence (including rape and forced prostitution) are prevalent. Although the detention of migrants is founded in Libyan domestic law, migrants are detained for indefinite periods without an opportunity to have the legality of their detention reviewed, and the only practicable means of escape is by paying large sums of money to the guards or engaging in forced labour or sexual favours inside or outside the detention centre for the benefit of private individuals. Several interviewees described that they endured the same cycle of violence, in some cases up to 10 times, of paying guards to secure release, sea crossing attempt, an interception and subsequent return to detention in harsh and violent conditions, all while under the absolute control of the authorities, militias and/or criminal networks. There is also evidence that most of detained migrants are Sub-Saharan Africans and that they are treated in a harsher manner than other nationalities, thereby suggesting discriminatory treatment.

68.  Migrants form an identifiable group of individual civilians defined by their vulnerability and absence of legal status within Libya. The commission of the above acts has been longstanding and on a massive scale. Based on reports of reliable organizations, the Mission established that since 2016, some 87,000 migrants have been intercepted by the LCG, and there are currently close to 7,000 migrants in DCIM detention centres, including large percentages of children. Furthermore, the above acts are not isolated incidents that can be attributed to rogue elements: they form part of a pattern characterized by dangerous operations at sea followed by a systematic transfer to a detention centre where migrants are kept for an indefinite period of time and where they are subjected to intolerable conditions that cause suffering and prompt them to utilise any means of escape, including paying money.

69.  Since the inception of boat pullbacks in the Mediterranean, Libyan authorities have been on notice of the widespread and systematic nature of the reckless interceptions at sea and the abuses within the centres. Rather than investigating incidents and reforming practices, the Libyan authorities have continued with interception and detention of migrants. The absence of accountability for abuses against migrants evidences a State policy encouraging the deterrence of sea crossings, the extortion of migrants in detention, and the subjection to violence and discrimination. Militias (some of which manage detention centres), criminal networks, traffickers and smugglers contribute to the implementation of this policy.

70.  The foregoing provides reasonable grounds to believe that acts of murder,36  enslavement,37  torture,38  imprisonment,39  rape,40  persecution41 and other inhumane acts42 committed against migrants form part of a systematic and widespread attack directed at this population, in furtherance of a State policy. As such, these acts may amount to crimes against humanity. This finding is made notwithstanding the responsibility that may be borne by third States and further investigations are required to establish the role of all those involved, directly or indirectly, in these crimes.

71.   The Mission also investigated two incidents endangering the life of migrants. In May and July 2019, during the NIAC in Tripoli, a detention centre located next to the headquarters of the Daman Brigade in Tajoura was struck twice. Dozens of deaths were reported and the authorities failed to take any action after the first strike. By failing to separate the prisoners from the vicinity of a potential military objective, the Daman Brigade and the GNA (with which the Brigade was affiliated) may have violated their IHL obligation to protect civilians under their control from the effects of attack.43  The latter may have also violated the right to life of the migrants44 by preventing them from seeking shelter following the first airstrike. Furthermore, there are reasonable grounds to believe that the party responsible for the airstrikes may have violated the principles of distinction and proportionality as well as the obligation to take precautions in attack.45  On 20 June 2021, an accidental explosion in what was believed to be an ammunition depot in close proximity to the Abu Rashada detention centre in Gharyan caused the death of dozens of detained persons. Given that the guards prevented migrants from fleeing the building following the explosion, thereby preventing them from seeking safety, there are reasonable grounds to believe that the right to life of the migrants may have been violated.46 

34  See Annex 2, para.16.

35 The discrepancy between the number of migrants intercepted at sea since the beginning of 2021 (close to 23,000 as of August 2021) and the number of migrants currently detained in DCIM run centres (about 7,000) raises serious concerns that significant numbers of migrants may have been returned to smugglers and traffickers or are in the hands of armed groups who further abuse them.

36 See note 25 above.

37 Article 7-1-c, Rome Statute; Annex 2, para.5.

38 See note 26 above.

39 See note 27 above.

40 See note 28 above.

41 Article 7-1-h, Rome Statute; Annex 2, para.9.

42 Article 7-1-k, Rome Statute; Annex 2, para.11.

43 Customary IHL Rules, at pp. 68-71 (rule 22).

44 Article 6, ICCPR.

45 See note 18 above.

46 Article 6, ICCPR.

[***]

Key points:

• UNHCR does not consider it appropriate for States to designate Libya as a so-called “safe third country”;

• UNHCR does not consider that Libya meets the criteria for being designated as a place of safety for the purpose of disembarkation following rescue at sea;

• UNHCR recalls that the principle of non-refoulement applies wherever a state exercises jurisdiction, including where it exercises effective control in the context of search and rescue operations outside its territory;

• Where a State’s coordination or involvement in a SAR operation, in view of all the relevant facts, is likely to determine the course of events, UNHCR’s view is that the concerned State’s negative and positive obligations under applicable international refugee and human rights law, including non-refoulement, are likely to be engaged.

Excerpts from the Position Statement:

 1. This position supersedes and replaces UNHCR’s guidance on foreign nationals in Libya contained in the Position on Returns to Libya – Update II of September 2018. [***]

4. Libya is not party to the 1951 Convention Relating to the Status of Refugees or its Protocol. It has ratified the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention) and is also party to the African Charter on Human and Peoples’ Rights (“Banjul Charter”). While the right to asylum is provided for in Article 10 of Libya’s 2011 interim Constitutional Declaration, there is no asylum legislation or any established asylum procedures. [***]

9. A significant number of asylum-seekers, refugees and migrants are detained or held in captivity for various periods of time, including following interception or rescue at sea or, more recently, interception on land, including near land borders or embarkation points.  A number of asylum-seekers, refugees and migrants are held in officially designated detention centres administered by the Directorate to Combat Illegal Migration (DCIM). Some are transferred to facilities under the Ministry of Interior used as investigation centres after rescue or interception at sea. Many are held captive upon crossing to Libya from neighbouring countries in places run by armed factions and criminal networks, including in warehouses and farms. Although the number of persons held in DCIM-administered detention centres declined over the course of 2019 and early 2020, at the time of writing, the number is once again on the rise. As at 7 August 2020, UNHCR estimates that 2,500 foreign nationals, including 1,212 persons of concern to UNHCR, are held in the DCIM-administered detention centres. Between January and April 2020, hundreds of migrants returned to Libya by the Libyan Coast Guard (LCG) were unaccounted for following their disembarkation.

10. In all detention facilities, conditions fail to meet international standards and have been described as “horrendous” and “cruel, inhuman and degrading”. Deaths in detention due to violence, suicide, and disease have been reported. Both male and female asylum-seekers, refugees and migrants, including children, are routinely subjected to torture and other forms of ill-treatment, including rape and other forms of sexual violence, forced labour, forced recruitment, as well as extortion, both in official and unofficial detention facilities. [***]

13. En route and during their stay in Libya, asylum-seekers, refugees and migrants, including children, are at risk of being subjected to widespread and systematic human rights violations and abuses at the hands of smugglers, traffickers, armed groups, militias and criminal gangs acting with impunity. These violations and abuses reportedly include unlawful deprivation of liberty and arbitrary detention; torture and other forms of ill-treatment; rape and other forms of sexual violence; abduction for ransom and other forms of extortion; forced labour; and unlawful killing. Women and girls, but also men and boys, are subjected to rape, forced prostitution and other forms of sexual violence. In a particularly horrifying incident, a group of traffickers opened fire in a warehouse in Mezda southwest of Tripoli in May 2020, killing 30 persons and injuring 11 others. Since the armed conflict has shifted away from Tripoli, the Ministry of Interior has taken action against certain trafficking and smuggling networks in western Libya.

14. Since 2017, Italy and the EU provide assistance to the Libyan Coast Guard (LCG) to increase its capacity to carry out search and rescue operations and prevent irregular departures on the Central Mediterranean route. As a result of increased LCG operations, the number of people successfully crossing from Libya to Europe, particularly to Italy, has reduced significantly since 2017. However, in May 2020 UNHCR observed a renewed increase in departures from Libya as a result of increased fighting and deteriorating living conditions and loss of livelihoods due to COVID-19. Out of the total number of people who do attempt the crossing, the proportion of persons intercepted or rescued at sea by the LCG has increased. The increase in interception and rescue operations conducted by the LCG resulted in greater numbers of persons disembarked in Libya. The LCG have reportedly been involved in human rights violations against asylum-seekers, refugees and migrants, including the use of firearms. The LCG have also been accused of colluding with smuggling networks. Against this background, in April 2020 a European Parliament majority demanded that cooperation with the LCG be stopped.

15. In parallel, the activities of non-governmental organization (NGO) rescue boats have been increasingly restricted, including by criminal proceedings and the seizure of vessels, leading some to suspend rescue operations. Additionally, some states began closing ports during the COVID-19 crisis, declaring them unsafe, and thereby preventing NGO search and rescue boats from docking. These developments, among others, have led to a estimated higher percentage of people dying at sea than ever before.

16. In June 2018, Libya formally declared a Search-and-Rescue Region (SRR), indicating that it assumed primary responsibility for search and rescue coordination in an area extending to around 100 miles from some of the primary embarkation sites. Libya established a Joint Rescue Coordination Centre (JRCC), reportedly supported by Italy. In a number of instances, NGOs reported difficulties to contact the JRCC. [***]

29. The situation in which a state exercises jurisdiction over people as a result of interception or rescue at sea requires respect for the principle of non-refoulement. UNHCR urges states to refrain from returning to Libya any foreign nationals intercepted or rescued at sea and to ensure that those in need of international protection are able to access fair and effective asylum procedures upon disembarkation.

30. Upon arrival in a country of asylum, persons seeking or otherwise indicating a possible need for international protection should be referred to national asylum procedures. [***]

32. UNHCR does not consider it appropriate for States to designate Libya as a so-called “safe third country”. The designation of a country as a safe third country may result in a request for international protection not being considered on its merits but declared inadmissible, or processed in an accelerated procedure with reduced procedural safeguards. Even before the current unrest and insecurity, UNHCR considered that Libya should not be regarded as a safe third country in light of the absence of a functioning asylum system, the widely reported difficulties and abuses faced by asylum-seekers and refugees in Libya, the absence of protection from such abuses, the lack of protection against refoulement, and the lack of durable solutions.  UNHCR calls on States not to channel applications for international protection from foreign nationals into an accelerated procedure or declare them inadmissible, merely on the basis of the fact that they previously resided in or transited through Libya.

33. In the context of rescue at sea and in line with international maritime law, disembarkation is to occur in a predictable manner in a place of safety and in conditions that uphold respect for the human rights of those who are rescued, including adherence to the principle of non-refoulement. When persons are rescued at sea, including by military and commercial vessels, “the need to avoid disembarkation in territories where [their] lives and freedoms (…) would be threatened” is relevant in determining what constitutes a place of safety. In light of the volatile security situation in general and the particular protection risks for foreign nationals (including arbitrary and unlawful detention in substandard conditions in State-run detention centres, and reports of serious violations and abuses against asylum-seekers, refugees and migrants by, among others, militias, traffickers and smugglers), UNHCR does not consider that Libya meets the criteria for being designated as a place of safety for the purpose of disembarkation following rescue at sea.

34. UNHCR therefore calls on States to refrain from returning to Libya any persons rescued at sea and to ensure their timely disembarkation in a place of safety. UNHCR recalls that the principle of non-refoulement applies wherever a state exercises jurisdiction, including where it exercises effective control in the context of search and rescue operations outside its territory. Where a State’s coordination or involvement in a SAR operation, in view of all the relevant facts, is likely to determine the course of events, UNHCR’s view is that the concerned State’s negative and positive obligations under applicable international refugee and human rights law, including non-refoulement, are likely to be engaged.

Excerpts:

Article 1 – Mission

1. The Union hereby establishes and launches a military crisis management operation to contribute to preventing arms trafficking within its agreed Area of Operation and Area of Interest in accordance with UNSCR 1970 (2011) and subsequent Resolutions on the arms embargo on Libya, including UNSCR 2292 (2016) and UNSCR 2473 (2019). Furthermore, the operation shall contribute to the implementation of UN measures to prevent the illicit export of petroleum from Libya in accordance with UNSCR 2146 (2014) and subsequent Resolutions, in particular UNSCR 2509 (2020) and UNSCR 2510 (2020). In addition, the operation shall assist in the development of the capacities and in the training of the Libyan Coast Guard and Navy in law enforcement tasks at sea. The operation shall also contribute to the disruption of the business model of human smuggling and trafficking networks, in accordance with applicable international law, including the UN Convention on the Law of the Sea, any relevant UNSCR, and international human rights law as applicable. [***]

Article 4 – Capacity building and training of Libyan Coast Guard and Navy

1. As a further secondary task, EUNAVFOR MED IRINI shall assist in the development of the capacities and in the training of the Libyan Coast Guard and Navy in law enforcement tasks at sea, in particular to prevent human smuggling and trafficking.
2. The task referred to in paragraph 1 shall be carried out on the high seas in EUNAVFOR MED IRINI’s agreed Area of Operation. It may also be carried out in the territory, including the territorial waters, of Libya or of a host third State neighbouring Libya where the PSC so decides following an assessment by the Council on the basis of an invitation by Libya or the host State concerned, and in accordance with international law. [***]

Article 5 – Contributing to disruption of the business model of human smuggling and trafficking networks

1. As another secondary task, and in accordance with UNSCR 2240 (2015), EUNAVFOR MED IRINI shall support the detection and monitoring of human smuggling and trafficking networks through information gathering and patrolling carried out by aerial assets above the high seas, in the agreed Area of Operation.[***]

Full text here.

The groundwork for this was laid in the central Mediterranean, where the EU and Italy created a proxy force to do what they could not do themselves without openly violating international laws: intercept unwanted migrants and return them to Libya.

The strategy has relied on maintaining deniability of responsibility for Libyan coastguard operations. But the connivance revealed in the audio recordings is supported by previously unpublished letters between high-level EU mandarins, confirmed by inside sources and laid bare in emails from the Libyan coastguard, all obtained by the Guardian. Taken together, this evidence threatens to unravel a conspiracy in the Mediterranean that flouts international law in the name of migration control….”