New UNHCR position statement on Libya as Safe Third Country and as Place of Safety for purpose of disembarkation after rescue at sea; Coordination or involvement in SAR operations engage a State’s non-refoulement obligations

 UNHCR released a new position statement regarding the designation of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea, superseding its previous 2018 position statement.

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.

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