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“Conditions for irregular migrants in Libya are cruel and inhuman. Human rights violations are widespread and systematic. We are talking about crimes against humanity and in the cases where they are related to armed conflict, even war crimes”.
UN Special Rapporteur on Torture Nils Melzer is very outspoken, when describing the conditions facing migrants and asylum seekers, who are intercepted by the Libyan Coast Guard at sea and returned to detention centres in war torn Libya.
He regularly submits reports on the use of torture and other serious human rights abuses around the world to the UN Human Rights Council in Geneva and the UN General Assembly in New York..
Nils Melzers latest report on migration related torture was submitted in november 2018, and he stresses, that there has been very little improvement if any, since he undertook the task as UN watchdog on torture.
Since then Libya has been engulfed by civil war, making migrants even more vulnerable. In the beginning of juli, the migrant center Tajoura east of Tripoli was bombed, killing at least 44 migrant and wounding 130.
The Libyan Coast Guard has increasingly conducted search and rescue operations in the waters between Libya and Italy and now intercepts most of the migrants and asylum seekers attempting to reach Europe from Libya.
An anti migration effort, made possible by the support, training and equipment, provided by the EU since the refugee crisis in 2015.
“Neither the EU nor the individual member states can claim with any degree of credibility that they do not know what is going on in Libya. We know the situation of migrants and what is going on in the camps, to which migrants and asylum seekers are returned to”, Nils Melzer says.
Mr. Melzer is a professor at international law at University of Glasgow University, Human Rights Chair at Geneva Academy of International Humanitarian Law and Human Rights and since 2016 UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment.
“Conditions for irregular migrants in Libya have been terrible for years.They are detained in horrible condition and on a large scale subjected to arbitrary detention and torture, including rape. We have seen videos of slave markets and we even have confirmed reports on large scale organ trade. There is so much information available that no one can claim to be ignorant of the risks involved in forcing migrant to return to Libya”, Nils Melzer says..
Nils Melzer accuses the EU and member states of being in violation of at least three international conventions, because it is the training, equipment and cooperation with the EU that encourages and enables the Libyan Coast Guard to prevent migrants and asylum seekers from reaching the shores of Europe.
Exactly how many migrants the Libyan Coast Guard intercepts are unknown, but according to Amnesty International at least 3.000 are currently detained in Libya. According to the International Organisation for Migration, IOM, 3.404 migrants arrived in Malta and Italy from Libya during the first five and a half months of 2019. This is significantly lower than the 337.278 arrivals, when the refugee crisis peaked in 2015 and 2016.
“There is no doubt that this push-back policy is violating the conventions. Already in 2012 the European Court of Human Rights found it illegal to return migrants to Libya because of the risks of abuse”, Nils Melzer says.
“If you prevent migrants and asylum seekers from reaching safety, you are responsible for the resulting foreseeable harm. That you have found someone else to do the work for you, does not absolve you from responsibility”, he says.
“By training, equipping and encouraging the Libyan Coast Guard, making sure it is able to intercept the migrants at sea and return them to Libya, the EU and member states actively prevent migrants and asylum seekers from reaching safety.”
The UN watchdog on torture point to three conventions being violated. One is the UN Convention on Torture, that prohibits states from handing over people to a another state, if there is a risk that they will be subjected to torture or other inhuman treatment.
Secondly he points to the UN Covenant on Civil and Political Rights where several provisions are violated and thirdly to the Vienna Convention, stipulating that states must interpret and exercise their international obligations in good faith.
The EU member countries have signed a number of international conventions, that oblige them to respekt human rights and act in good faith.
Some of the most important conventions, when it comes to establish whether it is legal or not to return migrants to Libya are these:
The Convention explicitly prohibit all kinds of torture, cruel, inhuman or degrading treatment or punishment as well as any kind of assistance to such acts:
1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
The Convention recognizes the fundamental rights of human beings, regardless of nationality, sex, religion a.s.o.
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The Convention stipulates, how states should interpret and conduct their obligations when signing international agreements and treaties.
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Sources: ohchr.org, refworld.org
The criticism voiced by the UN watchdog is echoed by one of Europe’s leading experts on international law, professor Thomas Gammeltoft-Hansen at the Universities of Oslo and Copenhagen.
“The migration policy of the EU is based on cooperation with a number of third countries like Libya, where local authorities are the ones to physically deal with the migrants and asylum seekers. But the EU still has a responsibility”, Thomas Gammeltoft-Hansen says.
“A state, that contributes to violations of international law, is still responsible. That is a well established juridical principle”, he says.
Thomas Gammeltoft-Hansen outlines three juridical condition that must be full filled in order for the EU or individual member states to have joint responsibility.
“With a large degree of certainty all three conditions are fulfilled. Without the training and support from the EU, the Libyan Coast Guard would not be functioning, The EU knows very well what the risks are with returning migrants to Libya and the abuses involved are criminalized in the EU as well as in Libya.”
The EU Commission does not agree that conventions are breached or even bended.
On the contrary. A spokesman for the office of the High Representative of the European Union for Foreign Affairs denies any responsibility for actions committed by the Libyan Coast Guard or other Libyan authorities.
“The Libyan authorities are operating in their own territorial waters and in their search and rescue area, where most of these incidents occur and most people lose their lives” the spokesman says in a written reply.
“The EU cannot operate in the territorial waters of a sovereign state” the spokesman says.
The spokesman confirms that the EU is aware of the conditions for migrants in Libya, including conditions in the Libyan detentions centres, that migrants are transferred to after being intercepted at sea.
“Our position on the conditions for migrants in detentions centres has been clear from day one. These conditions are unacceptable and detentions centres should be closed” he says, stressing that according to international law the authorities detaining the migrants are responsible for the conditions.
“The Libyan authorities are obliged to provide detained refugees and migrants with adequate and quality food, ensuring that conditions in detention centres uphold international agreed standards.”
The goal of the EU is to have all migrants released and the detention centres closed, he says but this is not possible at the moment.
“Until this happens, the European Union is working together with UN agencies and international NGO’s to protect and assist vulnerable migrants and refugees at disembarkation point or in most of the official detention centres and in host communities.”
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