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February 28, 2011

Backgrounder: States’ Obligations to Protect Refugees Fleeing Libya

According to news reports, more than 140,000 refugees have fled Libya in the wake of ongoing turmoil, a number that is expected to grow in the coming days and weeks. UN officials on the ground along the borders of Libya are saying that the situation is at a crisis point. Human Rights First is issuing this background document to outline what states should do to ensure that refugees and other migrants fleeing Libya and its neighbors receive the protection to which they are entitled under international law.

Response to the Current Crisis

Currently, Tunisia and Egypt are experiencing an influx of people fleeing Libya. These persons include nationals of those two countries seeking to return home, as well as Libyans and smaller numbers of nationals of other countries in search of safety. Both Tunisia and Egypt, themselves emerging from turmoil, have kept their borders open and are receiving those fleeing Libya. Many of those fleeing are being provided assistance by local residents and non-governmental organizations, as well as government authorities in both countries. The United Nations High Commissioner for Refugees (UNHCR) is providing assistance to Tunisian and Egyptian humanitarian efforts on Libya’s borders. UNHCR has appealed to the international community to provide humanitarian support for Tunisia and Egypt in coping with the thousands of people now fleeing Libya. Human Rights First echoes that call, and also urges other affected states, including those in the European Union, to ensure that they respect their own obligations towards refugees and migrants fleeing from North Africa in search of safety.

Core Principles of Refugee Protection

All states affected by the ongoing crisis are bound to respect the following principles governing the treatment of refugees:

1. Provide protection to refugees: International law provides special protection to those fleeing persecution and armed conflictRefugees are people who have fled persecution or war and so have lost, or are unable to rely upon, the protection of their own country of citizenship or residence. As such, they require special international protection. The cornerstone of the international system of refugee protection is the 1951 U.N. Convention Relating to the status of Refugees, and its 1967 protocol. The rights of refugees under the Convention and its Protocol are supplemented by various regional agreements, including the African Union (AU) Convention Governing the Specific Aspects of Refugee Problems in Africa, and a wider body of human rights and humanitarian law. Through the host country, the international community takes on the role of providing protection to the refugee where national protection can no longer be relied upon. The United Nations High Commissioner for Refugees (UNHCR) is the international body that has the mandate to help States fulfill their obligation to protect and assist refugees around the world.

2. Protect the right to flee and the right to non-return: Core principles of refugee protection of particular relevance to the present situation in North Africa include the following:

  • Refugees have a right to flee persecution. Refugees must be permitted to seek protection outside their country. Under no circumstances may they be summarily turned back at the frontier of a potential host territory. Even in situations of large-scale influx, refugees must be admitted across the border to receive at least temporary protection and assistance, before a more long-term solution may be found.
  • Refugees have a right not to be returned to situations where they would be in danger of persecution and/or other serious violations of their human rights. This principle, known in law as the principle of non-refoulement, is a norm of international law considered to be of universal application. It applies to all government agents acting in an official capacity, within or outside their national territory, and including on the high seas. All persons are also protected under international human rights law from return to any country where they would be in danger of being subjected to torture.
  • Migrants, including those intercepted on the high seas, may not be summarily returned without giving them access to full and fair asylum procedures. People may move from one country to another for different reasons, including economic need as well as the need to escape persecution or other threats to their life and safety. In many cases, groups of migrants may include people of different nationalities, on the move for different reasons and presenting different needs and vulnerabilities. Regardless of their eligibility for refugee protection, all human beings have human rights, and states receiving or intercepting foreign nationals must respect those rights. In order to ensure that refugees and others with claims to international protection are not forced back to persecution and other serious harm, countries receiving or intercepting migrants must assess these reasons and needs on an individual basis prior to returning migrants to any other country.
  • Asylum seekers and other migrants may not be arbitrarily detained. Detention is arbitrary if it is contrary to law or not authorized by law, but also if the decision to detain is random or capricious, or if the detainee does not have access to procedures for prompt review by an independent judicial authority.

3. Provide humanitarian and emergency assistance:

  • Refugees must have their rights protected, including those relating to physical safety and access to food, water, health care, and shelter. States should work with UNHCR, the ICRCR and the International Organization for Migration (IOM) to ensure that those who are fleeing are able to access assistance.
  • Refugees and others fleeing Libya must be sheltered in a safe location: Locating reception facilities and any more lasting refugee settlements well away from the Libyan border helps protect the security of those fleeing as well as the security of the host country.

4. Institute mechanisms to identify those who may be ineligible for refugee protection:

  • Persons responsible for crimes against humanity and other very grave criminal conduct are not eligible for protection as refugees. When an individual requests protection as a refugee, an examination of the need for protection must include consideration of whether or not there are serious reasons for considering that the individual has committed a crime against humanity, a crime against peace, a war crime, a serious non-political crime, or acts contrary to the purposes and principles of the United Nations. This examination must be conducted in line with international principles relating to due process, and any restriction on rights that results must only be imposed on the individual responsible (his or her family members may not themselves be automatically excluded). If an individual is found to be excluded from refugee protection, the authorities of the host country and UNHCR have a twofold duty. They must ensure, as far as possible, that the allegation of wrongdoing is investigated, and that serious criminals are brought to justice, in a manner that adheres to international fair trial standards. At the same time, no matter how atrocious a person’s crimes, the host State must ensure that he or she continues to benefit from basic international human rights protection.
  • Arriving refugees must be screened to ensure that combatants or armed fighters are separated from the general refugee population. Combatants and armed fighters cannot benefit from protection as refugees, and should be separated from the general refugee population; this helps to prevent refugees from becoming targets of attack, and also to preserve neutrality during a conflict. Where it is clear that those who have been participating in the fighting intend to permanently lay down their arms and embrace civilian status, they may be considered for protection as refugees, subject however to the grounds for exclusion described above.

Who is Fleeing?

Many people, of different nationalities, are currently making their way across international borders in and out of Libya, Tunisia, and Egypt for different reasons. These include Tunisians and Egyptians who had been working in Libya and are now fleeing back to their own countries for safety. Accounts from the media and UNHCR indicate that most of those crossing the Libyan border into Tunisia and Egypt over the past week have fallen in to this category, and that many of them were driven to flee not only by general conditions of violence, but also by targeted attacks against foreigners by pro-Gaddafi forces. Foreigners from other countries (including the United States, China, Bangladesh, and many others) who had been working in Libya have also been leaving, by sea as well as by land, and most now seek to return to their home countries.

Relatively few Libyan nationals have fled into neighboring countries as refugees since the beginning of the unrest; this could change as conditions within Libya evolve. Also conspicuous by their absence from the ongoing exodus are refugees from third countries who are currently in Libya after fleeing persecution in their homelands. Libya at the start of the current crisis contained thousands of refugees from third countries, with the largest numbers coming from Chad, Eritrea, Iraq, Palestine, Somalia, and Sudan. Foreign migrants in Libya were the targets of hostility and xenophobic attacks long before the ongoing crisis. UNHCR, whose ability to operate in Libya had been greatly restricted by the Gaddafi government, had registered over 8,000 refugees before the current crisis began, and had an additional 3,000 cases pending. Since Libya currently has no law or procedure to grant asylum to refugees, the Gaddafi regime has at various points denied that there are any refugees in Libya, many of these refugees are people who were blocked in an attempt to reach other countries that might offer them a lasting solution. It appears that few if any of these refugees have thus far been able to escape Libya, despite reports that pro-government forces there have been targeting foreigners (including Tunisians and Egyptians who are now fleeing home) and that men from sub-Saharan Africa have also been attacked by anti-Gaddafi protesters following allegations that sub-Saharan African mercenaries were involved in the Gaddafi regime’s repression of the uprising. Many of these refugees are currently trapped in their houses and afraid to go out even to buy food. Some of them may seek to flee Libya for third countries when it becomes physically possible for them to do so.

Egypt likewise has a significant refugee population (over 94,000 refugees from third countries were recognized by UNHCR as of January 2010, with over 13,000 additional cases pending), while Tunisia, which hosted a small number of refugee, has also driven a larger number of its own citizens in recent years to seek refuge from persecution in other countries.

In addition, difficult economic conditions have led many citizens of the same countries undergoing political upheaval to seek work in more prosperous countries, including in the

European Union, and this will likely continue until social and economic conditions in the countries of citizenship of those migrants improve.

The Obligations of Neighboring States and the European Union

All of the states bordering Libya have accepted by treaty international obligations relating to the protection of refugees. Libya itself is alone among its neighbors in never having ratified the 1951 U.N. Refugee Convention and its Protocol; all of the surrounding states are signatories to the 1951 U.N. Refugee Convention as well as to the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1981 African Charter on Human and Peoples’ Rights. Libya is itself a signatory to these last two treaties. The 1969 OAU Refugee Convention provides protection to refugees fleeing persecution, but also to those forced to flee due to serious disturbances of the public order in their countries of nationality.

All of the member states of the European Union are signatories to the 1951 U.N. Refugee Convention and its Protocol, as well as to the European Convention on Human Rights.

Under all these agreements, States are prohibited from returning refugees to countries where their lives or freedom would be threatened, either directly or by assisting other States in so doing.

International Responsibilities

Protection of refugees is a collective international responsibility. In practice, however, it is those countries that are closest to or most accessible from Libya and its neighbors that will be called upon to protect the majority of refugees who may seek international protection in the immediate term. Within the European Union, this practical state of affairs has been reinforced legally by an EU regulation (known as the Dublin II regulation) that assigns responsibility for evaluating asylum claims among the EU member states. This regulation provides that for the overwhelming majority of refugees who enter the EU without valid visas or residence permits—a category that includes virtually all refugees arriving by sea—the EU state where they first land will be the one responsible for considering their application for refugee protection. The implementation of this rule has had the effect of pushing responsibility for refugee protection towards the states on the southern borders of the EU. This situation has increased the share of refugee claims falling to countries such as Greece, Malta, and Italy.

Italy in recent years has responded to this challenge, and to the broader challenge of migrants (refugees and others) traveling from or through North Africa towards Italy, by entering into

cooperation agreements with the Libyan government for increased controls on Libya’s land borders combined with joint interdiction in the Mediterranean of nationals of third countries seeking to reach Italy by sea. The result has been that boats carrying migrants, interdicted on the high seas by Italian vessels, have been returned to Libya without any screening to determine whether any of the people in those boats were refugees or otherwise presented a need for international protection. The EU agency that seeks to control migration on the external borders of the EU, Frontex, has also been involved in these returns. Libya, as noted earlier, has no national laws or procedures to grant protection to refugees, and has been known for arbitrary detention and other serious abuses, including physical and sexual violence, against refugees and other migrants caught within its borders.

At a time when all countries in the region and their neighbors in the EU may see an increase in migration by people fleeing persecution and violence as well as worsening economic conditions, it is critically important that those who have a claim to international protection be given access to procedures to obtain it. The international community more broadly and the EU should assist those States that bear the brunt of this challenge in dealing with it in a way that is consistent with their international obligations. At the same time, Italy and other EU member states and institutions must refrain from pushing migrants back to Libya or any other country without identifying those in need of international protection and allowing those who need such protection to apply for it.