Report of the Independent Fact-Finding Mission on Libya to the Human Rights Council:  Grounds to Believe that Acts of Murder, Enslavement, Torture, Rape, and Other Inhumane Acts Have Been Committed Against Migrants in Furtherance of a State Policy and May Amount to Crimes Against Humanity

Advance Unedited Version of the Report, 1 Oct. 2021, in EN here and in AR here.

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:

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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.

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