ReliefWeb

I. EXECUTIVE SUMMARY

“THE MAJORITY OF THE TORTURERS WERE THE GUARDS…[THEY] ALWAYS COME WITH THIS LONG WATER TUBE. THEY BEAT YOU WITH IT…WHILE YOU’RE IN THE TORTURE, SOME PEOPLE SCREAM “OK WE’LL PAY”. SO THE PERSON WHO’S SCREAMING, HE WOULD BE ISOLATED AND GIVEN THE PHONE TO SPEAK WITH HIS FAMILY. [FOR] THOSE WHO DON’T CRY OR SCREAM, THEY USE A SECOND METHOD OF TORTURE BY BURNING WITH PLASTIC.”

• Interview with “Yasir”, February 2021

For over a decade, the situation of migrants, refugees, and asylum seekers in Libya has deteriorated to such levels that it has shocked the global conscience. As the country descended into conflict and chaos following the 2011 uprising, migrants and refugees experienced some of the worst atrocities at the hands of state and non-state actors alike. This report argues, firstly, that these atrocities may amount to crimes against humanity and, as such, should be investigated and prosecuted by the International Criminal Court (ICC). Secondly, it questions the role of the European Union (EU) and its member states in facilitating these crimes.

Criminal activity, including illicit trade, has thrived in Libya against the backdrop of protracted conflict, the crash of the economy, and the collapse of state institutions, including the security sector and the judiciary. In the aftermath of the 2011 uprising, militias and armed groups2 became assimilated into the state security apparatus, while also turning to human smuggling and trafficking activities to generate power and revenue at the expense of a vulnerable population lacking legal protection. Migrants and refugees became commodified, through kidnapping, arbitrary detention, extortion and torture. In fact, the smuggling and trafficking economy grew to such levels that by 2015, it represented 3.4% of Libya’s gross domestic product (GDP).3 During their journey through Libya, migrants and refugees often find themselves held in either official detention centres nominally under the control of the Directorate for Combatting Illegal Migration (DCIM) or in unknown locations held by traffickers, armed groups and militias affiliated to the state. The irregular status of migrants and refugees, due to the criminalisation of irregular entry and exit under Libyan law, provides a basis for their apprehension by authorities, often at sea, and their transfer to detention centres. Current estimates suggest that 7,000 migrants and refugees are detained at DCIM detention centres alone, although the actual number is likely to be much higher.4 Human rights and humanitarian organisations, as well as UN agencies, have repeatedly called attention to the horrific conditions inside DCIM detention centres, where migrants and refugees are forced to endure severe overcrowding in structures that are unfit for human habitation. There is often insufficient access to hygiene and sanitation facilities, inadequate ventilation and lighting, including daylight, and a lack of adequate access to food and water leading to the severe malnourishment of those being held captive. Our research reveals that DCIM centres are operated in cooperation with, and in some cases by non-state actors with known involvement in human trafficking and other crimes.

Migrants and refugees are sometimes transferred from DCIM centres or are otherwise detained and taken to places of captivity outside of state oversight, such as hangars, open land, abandoned factories or empty buildings, and subjected to torture and abuse, forced prostitution and extortion. These places of captivity are located largely in the south of Libya, although their exact locations are difficult to identify due to the lack of access to that region.

This report is based on research developed over the course of several years carried out by the European Center for Constitutional and Human Rights (ECCHR), the International Federation for Human Rights (FIDH) and Lawyers for Justice in Libya (LFJL) (together, the Organisations), and complements a joint Communication submitted by the Organisations with the collaboration of survivors in November 2021 to the Office of the Prosecutor of the ICC pursuant to Article 15 of the ICC Rome Statute (the ICC Communication). The ICC Communication calls for the opening of an investigation by the ICC into these crimes as a step towards ensuring accountability, and ultimately justice for the victims of these crimes.

The Organisations argue that the widely documented violations of international human rights law may amount to crimes against humanity under the Rome Statute, the founding treaty and guiding legal instrument of the ICC.5 Many of the aspects presented in the Communication are beyond the scope of this report which focuses primarily on the analysis of the crimes against humanity identified.6 It should be noted, however, that while the focus of this report is on crimes against humanity, these crimes have also taken place over the past ten years within the context of a non-international armed conflict and, therefore, many of the crimes detailed in this report may also amount to war crimes, although they are not analysed as such in this report.

A crime against humanity is a criminal act committed in the context of a widespread or systematic attack on the civilian population undertaken pursuant to a state or organisational policy, which either affects a large number of people, is spread over a significant area or is committed repeatedly, meaning that the crimes were not a random occurrence.7 Several witness testimonies collected for the purpose of the ICC Communication and reflected in this report support existing documentation of the crimes against migrants and refugees in Libya. They clearly depict a pattern of multiple acts committed against them by state authorities, militias, armed groups and private individuals that constitute an attack against an identifiable group of civilians – migrants and refugees – who are targeted because of their migration status and vulnerability resulting from the absence of legal status in the country. The violations against migrants and refugees in Libya do not happen at random but exhibit a consistent pattern of conduct. The cycle of exploitation and abuse that they face, in combination with a hostile legal framework prescribing automatic and indefinite detention for every migrant or refugee present on Libyan territory, meet the threshold for crimes against humanity.

The crimes against humanity identified include imprisonment or severe deprivation of liberty, enslavement, murder, torture and other inhumane acts, rape, sexual slavery, enforced prostitution, other forms of sexual violence, and persecution. This report focuses specifically on the crimes of enslavement, murder, torture and rape.

The commission of these crimes is closely related to the broader context of EU migration management and border policies. Over the years, migration through Libya and the onward journey to European shores has been a point of concern for European states and the EU, especially since the so-called “migration crisis” of 2015. Despite a decade of conflict, breakdown in the rule of law and the security vacuum in Libya, the EU and its member states have continued to turn a blind eye to the devastating impact of this context on the situation of migrants and refugees in the country and have persevered with their migration policies.

Driven by the politically expedient desire to limit the number of arrivals to European countries, the EU and its member states have implemented a series of radical measures to contain migrants and refugees in Libya, despite being fully aware of the crimes committed against them in the country. In cases where migrants and refugees do manage to escape to the Mediterranean Sea, policies have been put in place to ensure that migrants and refugees are returned to Libya.

Measures by European actors aimed at trapping migrants and refugees in Libya, in breach of their international legal obligations, have included entering into agreements and arrangements, whether or not legally binding, with Libyan authorities on providing financial and technical support to Libyan institutions involved in migration management; cooperation with the Libyan Coast Guard (LCG), including by providing them with training, equipment and financial support; the transfer of search and rescue (SAR) responsibilities to Libya through assistance in declaring the Libyan SAR zone; and harassment of NGOs conducting SAR operations that would result in migrants and refugees disembarking in Europe. Such actions effectively closed all pathways to Europe, leading to a major drop in the number of sea arrivals from Libya by 2017. These measures have trapped vulnerable migrants and refugees, including children, in Libya, where they are abused and exploited. As Libya is not a safe place for migrants and refugees, Libyan and European policies and actions that return migrants and refugees to Libya and trap them there are not only morally wrong and unlawful, but also raise the question of possible European responsibility in the commission of crimes that may amount to crimes against humanity.

Therefore, European states and institutions should immediately end all cooperation with, and support and assistance to Libyan authorities, aimed at containing migrants and refugees in Libya. Libyan authorities must also take immediate action to put an end to the crimes committed against migrants and refugees by ending their detention, dissolving the DCIM, as well as conducting serious investigations into, and ensuring accountability for, the crimes committed against them. States and UN bodies should also deploy coordinated efforts to establish a body to identify the fate of the missing and disappeared to guarantee the families’ rights to truth, justice and reparations, in line with international standards.