Defender Center for Human Rights

Protection Element in the Legal Regulations for Illegal Immigration

By: Raja Mohammad Buhadi: Professor of Criminal Law University of Benghazi

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Protection Element in the Legal Regulations for Illegal Immigration

Jurists and human rights activists have recently been calling for the urgency of providing legal protection not only for refugees, but to all immigrants. This was a turning point in international immigration policy making; with all interested scholars encouraged to find exclusive solutions that regulate the rights and duties of all related parties.

It is worth mentioning that this exclusive treatment of immigration lies at the heart of peaceful cooperation between peoples to achieve security and stability; it opens the door to progress in human rights and the rule of democracy. Furthermore, it helps nurture a human being capable of acquiring their basic rights; finding solutions to obstacles they may face in their home countries; achieving economic growth; preventing armed conflicts; and solving protracted conflicts. Treating immigration in this way would also assist the protection of the human right of movement and enhance the enjoyment of this right through regulated channels and under international humanitarian aegis and cooperation.

However, high hopes of peaceful coexistence are not always fulfilled. Conflicts seem to stop at one place only to break out at another as seen in many Arab countries in the region in this post-Arab-Spring era. The current situation is the perfect example of how badly security crises, armed conflicts and economic instability can affect immigration. This effect is seen in the rise in numbers of the points of departure, increased immigrant numbers and their diverse age groups. There were also some new changes observed as some crossover countries transformed into sources of immigration. The events in Libya illustrate this situation perfectly where the numbers of immigrants and manners of immigration have been steadily increasing in the past few years, which can be attributed clearly to security chaos and internal armed conflicts. Libya has the largest number of immigrants and asylum seekers in the North African region, where the country’s long coastline has recently become an open floodgate through which waves and waves of migrants and asylum seekers flow to the countries of the European Union.

Importance and problem of the study

The problem of the study is stated here as a number of questions:

  • Is restriction of the right of movement and travel by criminalizing it in the internal laws considered a way of preventing harm by deceit? In other words, if violation of international conventions by national legislations in dealing with immigration was necessary to protect national interests, would that not be in the interests of the international community?
  • Can an international phenomenon be treated according to national policies based on personal and partisan ideologies? Are Libyan and Italian legislations concerning illegal immigration based on the principles of the human rights of immigrants and asylum seekers? When it comes to regulating illegal immigration, what are the points of differences and similarities between national legislations and international conventions? How can these different rules be coordinated in both form and content? How can a balance be achieved between those contradictory interests: the states’ interest in regulating immigration and the immigrants’ interest in protecting their rights and freedoms?
  • Is the increasing attention of the national and international NGOs due to the lack of sufficient legal frameworks and the need of more sufficient tools and managements? Is this attention a motivation for improvisation and improvement of national and international rules to meet an international phenomenon, after international voluntary rules and institutions failed to do so?

The importance of this study arises from the fact that although numerous legislations regarding immigration have tried to tackle the phenomenon in the last two decades, they seem to have only one objective: to shield the national security of destination countries from alien races and extremist ideologies.

This focus on legislation was not accompanied by the appropriate concern for the immigrant’s rights who, being the weaker party in this entanglement, are only seeking a better life.  This situation has made immigrants prone to human rights violations and suffered different categories of inhumane conditions. The prominent feature of these policies, to block immigrants and send them back to their home countries, is a contradiction to the provisions of the Human Rights Law and the International Humanitarian Law. Therefore, this study seeks to come up with ways that guarantee the rights of all involved parties within the realm of legislations concerning immigration.

Part One

Migration between Legalization and Criminalization

Discrepancies between divergent legal norms and cultures were the reason for differences in anti-migration legislations, varying from the very strict to the more flexible, with varying degrees of rigidness within the same state over different periods of time. Although this matter depends on the decision-makers’ ideologies and political inclinations, various factors and non-legal aspects also affect it.

In this chapter, legal regulations of migration will be discussed by analyzing some of the national legal regulations in the Mediterranean basin countries, focusing on the Libyan and Italian legislations. These two countries in particular are very vital in migration: with Libya’s long coastline being the floodgates through which scores of migrants, from sub-Saharan Africa and beyond, flow; and the Italian shores being the destination where many of what are now called “death boats” land.

Chapter One

Legal Framework of Migration

Forming a general framework is not, in any way, an easy task, for it is connected with various issues and views, considerable interest, and the perspective through which migration is seen. Nevertheless, it is vital to establish a framework of migration because the outcomes will influence the balance and efficiency of the applicable legal systems.

  • Libya’s irregular approach to regulating migration

Many factors have contributed to the dispersion of migration in Libya: oils and gas; geographical location; and Libya’s immediacy to Europe. Moreover, African states’ borders are relatively recent and do not take ethnic and cultural elements into consideration. Therefore, people of the same ethnic group tend to travel along their tribal routes, irrespective of legal status, through weakly guarded porous borders.

To understand the legal framework of migration in Libya, one needs to track national and local policy towards migration. Initially, an approach of separating migrants from the local population was prevalent. Populist discourse had always depicted migrants as a different race alien to the national and cultural identity, explicitly expressing an anti-integration inclination to the point of portraying migrants, especially sub-Saharan Africans, as a public health hazard. Evidently, the first of such legislations is Migration Law 4/1953 Regarding the Regulation of Foreigners’ Entry, Residing in and Departure from Libya. This Law states, in addition to regulatory procedures, criminal penalties are imposed against whomever submitted false documents or wrong information knowingly; violated Visa conditions or committed any other violation of the provisions of this law and applicable regulation in this respect. Therefore the law has, in effect, criminalized migration and imposed fines and incarceration penalties. As the phenomenon at the time had not yet spread, administrative procedures would have been sufficient. However, a futuristic vision of migration would have led to these harsh preventive procedures.

In 1961, a Law regarding the formation of Federal Police was issued, Article 2 of which stated that the Department of Immigration and Foreigners’ Control is a department of the Federal Police force. Their jurisdiction covers a variety of powers among which includes supervising all immigration affairs and enforcing deportation orders. In order to protect society from the danger of migration, the Act, apparently, was a way of enforcing immigration regulations by a police force that can reach anyone who violates its provisions. These laws remained in effect until the passing of Law 17/1962 Regarding the Regulation of Foreigners’ Entry, Residing in and Departure from Libya. Relations between countries in question have a very direct effect on migration, and nowhere was this more evident than how the worsening of Libyan-Egyptian relations led to the abolishment of the later law and replacing it with a new legislation to regulate migration and fight human trafficking, Law 6/1987 and its amendments by Law 2/2004. The above-mentioned law coined the term “migrant smuggling” and considered it a crime punished by imprisonment for not less than one year and a one thousand dinar fine, in addition to deportation procedures for migrants. Other penalties for migrants were also strict.

What strikes the researcher as peculiar in this Law is that it states in Article 3 that citizens of Arab states have the right to enter Libyan territories simply by showing their ID cards through designated entry ports. In effect, this law has exempted citizens of some Arab states from the condition of applying for a visa to enter the country. The reason for this is that the political leadership at the time believed in a pan-Arab ideology and saw Libya as a land for all Arabs.

In the late 1990s, the Gaddafi regime adopted the idea of African unity and supported many political movements in Africa. This resulted in the increase of sub-Saharan African migration into Libya and the number of immigrants crossing the Mediterranean to Europe.

During this era, provisions of Law 6/1987 Regarding Foreigners’ Entry to Libya were suspended, not by the power of law but by the power of the ruling regime.

This phenomenon caused security instabilities especially in the coastal areas, where rates of crimes, narcotics and the outbreak of many serious diseases increased. Illegal immigrants in Libya were a burden on the local economy and increased unemployment, for migrants tend to stay in Libya for years before crossing over to Europe or, alternatively, settle in Libya.

Due to these negative effects, and as a response to international pressure exerted on Libyan authorities to tackle illegal immigration, Law 6/1987 was reenacted. As soon as the law was applied, many criminal lawsuits were filed against migrants and heard by courts of law under the term “illegal immigration felony”. This reenactment of the law was accompanied by Decree 15/2006 which established an Immigration Court and an Immigration Public Prosecution Office.

Making the objective of resolving the problem of migration a condition to normalize Libya’s relations with the West, these intensive political and legal efforts were carried out simultaneously. From this point, a change in the course of the country’s migration legislative policy is observed, shifting to a firmer position.

That’s why, in 2007, visa requirements were reinitiated, making thousands of migrants became illegal immigrants overnight charged with committing a felony of entering the country and staying without a permit from the concerned authorities.

Nevertheless, the Libyan government lacked sincere determination to regulate migration and only used it as leverage over EU countries, giving priority to Libya’s interests and demands. This forced the EU to call for Libya to engage seriously in controlling migration traffic along its coastline, criticizing Libya on many occasions for not taking the necessary steps to implement its migration laws. Therefore, a more serious anti-immigration policy was followed marked by Libya’s series of treaties with Italy, by which Libya became compelled to impose more strict measures along its borders with Algeria and Niger and set up migrant reception centers. In 2009, the number of migrants, asylum seekers and deportees in Libya was estimated to be 1.5 million, compared with Libya’s 4.6 million population. These figures sound the alarm in the entire Mediterranean basin and bring attention to the dangers of Europe’s national security.

Gradually, the importance of the agreement began to show. As soon as it was implemented, migrant numbers began to decline, meaning that efforts are being exerted on both sides of the Mediterranean to control immigration.

However, this policy of preventing immigration on the high seas enforced by the governments of Italy and Libya’s former regime since 2009 had a negative impact on the migrants who were detained and deported back to their original countries against their will, without taking their personal situation into consideration. Libya to this day has not joined the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol despite being part of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969. However Libya has always failed to abide by the provisions of the latter convention and kept breaching its obligations by its refusal to provide the necessary protection for refugees fleeing persecution.

If Italy’s success in tackling immigration on the high seas was attributed to the implementation of the old-fashioned measures of expanding control, Libya regulated immigration in line with European policies as part of an unspoken agreement, by which sanctions would be lifted and Libya opens its doors for Western economic interests (especially in the oil sector), to the point that Libya was called Europe’s strategic ally in combating legal immigration.

These agreements were put into effect by the enactment of the Internal Law 19/2010, which is the first law of relating to illegal immigration. While the law gave a definition for the term “illegal immigrant”, the will of the legislator has led to the criminalization of any conduct that would entail entering Libyan territory illegally, whether with the intent to settle or simply cross. Moreover, the provisions of this Law make it a crime to aid any componential part of illegal immigration. Article 6 stated that criminal penalties for illegal immigrants included custodial sentences and payment of monetary fines. The Act also contains preventive measures as a form of criminal sanction, in line with the Libyan legislature’s policy of combining punishment with preventive measures based on the idea of social defense, in accordance with the provisions of articles 137/138/143 of the Libyan Penal Code. Therefore, the Law on illegal migration includes a supplementary and mandatory measure in the form of alien deportation, which the judge has been obliged to order with every penalty in all cases where the convict is a foreigner charged in an offense set forth in this Act, once the sentence has been served.

However, the shortcoming of this law is its unregulated situation of illegal immigrants, who when deported and sent back to their original countries are put in grave danger. Although the right to appeal judicial decisions is guaranteed to all convicted persons and to all the remedies established by the law, because the appeal against criminal sentences includes the original penalty as well as the preventive measure to be served in the same sentence; and even when the acquittal is pronounced with a preventive measure, the accused is entitled by law to appeal and so does the Public Prosecutor by any usual and unusual procedures. Despite this, the fact that migrants do not know this right or are unable to use it remains a cause of further deterioration in their humanitarian conditions and the continuation of the violation of their rights.

This Law also did not distinguish between migrants, refugees, asylum-seekers, and victims of human trafficking, nor did it provide protection for migrants at risk, such as migrant children and those in a situation in which legal protection is needed.

Thus, the Libyan legislature has dealt with criminalizing the collective conduct of criminal gangs as a cross-border organized crime, which was previously regarded as an internal crime that only harmed the domestic entity; and has provided for the confiscation of funds derived from the criminal offence of human trafficking even if those amounts were disguised, transferred or transformed into legitimate sources. The Act also provided for cases of impunity to encourage offenders who might provide the authorities with information leading to the detection of a criminal plot before its occurrence, the limitation of its effects, or the capture of the perpetrators.

Thus, this special legislation includes the general provisions of the offense of illegal immigration, setting out the legal framework for it, although Law 6/1987 remains the law to be supplemented in the absence of conflict between them. As a result, domestic and regional politics at the time were more stable than in the 1980’s and 1990’s, and Libya’s cooperation in this area was conditional on financial and technical support, otherwise, the Christian “white” continent of Europe will become black, according to the head of state. Due to the fall of the regime in February 2011, this approach did not last long, and the following chain of events caused the country to plunge into a cycle of chaos and violence. The country then become a theater for migrant smuggling networks, and weak state institutions made Libya a major transit country for migrants from all over Africa, and even from Asia. The highest number of migrants crossing the Mediterranean, as well as those who drowned, was recorded in 2012 with 24 people leaving and emigrating every minute, and one person drowning every two hours. It was at that time that the Ministry of Internal Affairs established an agency called “Illegal Immigration Agency” which oversees the setting up and supervision of migrant reception centers.

The legislative development in Libya continued in the basic legislation to be in line with the international context in this area, the Libyan Constitution Project, issued on 29 July 2017, included in Part One Article 14 Section II the recognition of the need to regulate the situation of political refugees by law and the prohibition of their extradition to non-international justice. While Part Two Article 34, entitled “Human Dignity”, stipulates that the State shall be required to protect human dignity, and to prevent any and all forms of violence, slavery and human trafficking. This project is the first Act in Libya to recognize the right of asylum seekers and the protection of victims of human trafficking. Efforts are exerted and expectations are high in a constitution that protects the basic rights of people living on Libyan soil.

Since illegal immigration is a global phenomenon, regional and international cooperation with the already fragile State of Libya, which is currently engaged in the establishment of transitional institutions, was essential. The current status has left the country unable to meet the demands of the increasing rate of migration. Therefore, it was necessary to intensify the efforts of the international community, such as the UNHCR and the EU, to cooperate with Libyan state institutions and local NGOs. Hence the Libyan-Italian Cooperation and Friendship Treaty was activated, and its technical committees were revived ten years after signing the treaty.

  • Italian Anti-immigration Legislation

In the last three decades, the ideology that immigrants – especially those from the African continent – pose a threat to public safety and racial purity was marketed. This discourse has increased with the rise of terrorism. This rhetoric has used language that divested migrants from their humanity; one of the most prominent metaphors is that migration is a form of natural disaster, with newspapers using the terms such as “flood” and “flow of migration.” Meanwhile, because of their intellectual and ethnic affinity, Eastern European migrants have seized the opportunity to integrate into the West.

Italian legislation tackled immigration with a large number of laws and decrees. However, Italian legislative policy was not in unison; after initially regarding the diversity of cultures as a means to increase the wealth of society; the approach switched to integration of all residents. All legislative stages were fully convinced that migration should not be eliminated, but rather limited because of its benefits, particularly in terms of the provision of labor.

One of the first such legislations was the Public Security Act of 1930, which was part of the fascist legislative templates and addressed migration as a potential problem, which if befell, would pose a danger to civic life. This trend prevailed until the early 1970s when Italy transformed from a country exporting migrants to the Americas to a destination for African and Asian migrants. Since then, attention has shifted to legal aspects of migration. To tackle the problem, restructure of the administrative and legal system was needed, with state welfare and protection its mean features.

The most notable of these laws is the Foschi Act of 1986, which broke the silence and contained a set of rules according to which migrants were deemed to be “foreign workers” and therefore immigration would be controlled, with the numbers and ages of migrants determined to suit the labor market.

The Martelli Act was subsequently enacted in 1990, and amended many legislative loopholes in previous law, including the regulation of asylum seekers.

However, the difficult years – as described by politicians and jurists – the ones full of tension and conflicting bills were the 1990s when political manipulation and partisan and ideological conflicts made migration a center stage issue for the media and public opinion. Therefore, immigration regulation draft legislations continued to fluctuate with the pendulum swinging from right to left until 1995, when the heated debate led to the enactment of Dini’s Decree by a decisive majority due to being a lesser evil than Lega Nord’s notorious bills. This bill tackled many issues that have not been addressed in the previous legal regulations, such as the flow of foreign labour and new deportation regulations. This Act achieved more goals, mostly political ones than it stated in its provisions, all in the name of national interests.

After the center-left victory in the April 1996 elections, the Italian government promised a total review of migration issues with an “organic law”, as this was vital for Italy’s membership in the EU. The Turco-Napolitano Act No. 40 was enacted in 1998 with three aims: fighting criminal exploitation of migration flow (human trafficking); implementing a systematic control of the ports; and integrating migrants and foreigners living legally in Italy.

In seven parts, the Act regulated migration management and planning in clear terms, with a yearly quota of migrants allowed entry. This Act also consolidated forced deportation, refoulement and expulsion for those who were arrested immediately after entering Italy without permissible crossing, and the establishment of detention camps for those awaiting deportation. The Act also organized support and accommodation in residence centers.

Most provisions were reinforcement of anti-migration procedures either by censorship and stricter cooperation or by imposing firmer civil and criminal penalties.

This was the first time national legislation in Italy provided protection for victims of human trafficking, especially sexual abuse, as it was a very harsh law intended to eradicate the source of all the problems: criminal organizations. This law stated many rights for migrants, such as the right to a family reunion and the protection of minors, the way for which was paved by a Constitutional Court Decision.

Furthermore, the Act included an assemblage of legal immigrant’s civil rights, such as support and health care; social security; the expansion of compulsory education to include foreign minors; the possibility of foreign students to be granted scholarships; and the right to apply for public housing.

More importantly, the law provides for the fight against racial discrimination based on colour, ethnicity, or religion. Although the Turco-Napolitano Act is seemingly more moderate than its predecessor the Dini Act, it stressed its spirit. Despite providing for a series of creative procedures for cooperation between migrants and the local population, the migration legal framework was not totally clear as although it included provisions encouraging assimilation, it also contained provisions that contradict these intentions—considering migrants temporary guests tied up by the local work needs and encouraging most of them to eventually go back to their countries of origin. This Act was in effect until it was amended and integrated into the Bassi-Fini Act 189/2002.

Procedures stipulated in this Act regarding the control of legal ports and illegal points of entry, as well as tracking the illegal immigrant up to the point of deportation, were even harsher.

This Act also focused on regional cooperation by activating and concluding bilateral agreements between Italy and neighboring countries that require the two countries’ law enforcement agencies to cooperate in order to prevent illegal immigration.

Furthermore, the Act sets out the conditions for granting asylum, and those entitled to health care. It does not recognize any rights for non-working migrants, and the only condition for staying in the country is a labour contract. This utilitarian aspect is the only reason foreigners are allowed into Italy.

The minute the migrant worker stops working, the renewal of the residency is refused and they are sent back to their country, until then they would be provided with a stay in Centers of Identification and Expulsion (CIE), which are also used as places where the alien serves custodial sentences until they are released and taken to points of departure to be expelled.

This law, therefore, strongly combated illegal migration, but it did not address the problem but rather complicated it further when it adopted its rules to discriminate indirectly, thus planting the seeds of discontent in the minds of immigrants. Matters started to escalate quickly. Thus, in May 2008 a decree titled the Safety Package was issued, which was a set of security and legislative measures dedicated to the provisions aimed at achieving security and public order and considered illegal immigration a threat to law and order.

A key innovation is the inclusion of a provision aimed at punishing illegal entry and residence with a fine of €10,000 to €15,000, which introduced a denial of entry into Italy for (non-final) serious crimes, which is a reason to revoke or refuse to renew a residence permit.

The Act further stipulates that the Government shall develop a migration policy program every three years and submit it to the relevant committees of Parliament to analyze the study it intends to carry out on the issue of migration. The law equated foreigners who entered without a legal visa with foreigners who had lost the requirements to stay on Italian territory, all of whom must be punished, according to regulations, by fine or expulsion. Moreover, the act suppressed the crime of aiding and abetting illegal migration which became punishable by up to 15 years’ imprisonment and increased penalties under aggravating circumstances, such as sexual abuse and human trafficking.

These shortcomings in Italy’s immigration legislation have prompted many to criticize it, including the statement from the Pontifical Council Secretary that, “criminalizing immigration is the original sin.” The criticism came to the extent that some described the offense as being invented and absurd, demanding that the perpetrators of illegal entry and residence be decriminalized. Many jurists stood up against the resumption of racist laws in Europe, considering that the rule lacked a justified basis and that it would have been better dealt with by administrative measures to expel foreigners. The Constitutional Court also denied that the existence of migrants could in itself pose a social danger, regarding the law as a racist act, because conflicts with the constitutional guarantee that a criminal penalty should be based on material facts and not on individual circumstances. Furthermore, the introduction of a new crime (migration) would also pose a risk of aggravating the inefficiency of the judiciary system in achieving genuine social benefits. Non-profit organizations and associations also called for the rights of the child and appealed to the President of the Republic to the effect that the immigration law violated the basic rights of migrants in general and more specifically minors.

Yet this legislative innovation, as its advocates call it, remained in force despite all its flaws, until the policy of the Italian legislature had been changed as a result of the violent attack launched by some jurists after a boat carrying migrants capsized, killing 300 peoplek as fishing vessels refrained from responding to a distress message out of fear of legal punishment, as Italian law at the time penalized anyone who aids migrants even when they are in danger. Therefore, the law was hastily repealed in 2014.

Chapter Two

Establishment of an international migration structure 

National migration regulations have suffered from many shortcomings and weaknesses, and one of their most prominent flaws is the negligence of migrants’ human rights, or at best mentioning them briefly. The provision of these rights is a requirement of international human rights standards, yet the primary objective of these laws remains to provide protection to the security of citizens and the stability of the State, giving prominence to the former goal without any regard to the balance between conflicting interests.

  • International legislative guide

Efforts have been made to create an international migration structure so that national legislation can be used in enacting or amending legal regulations on migration. Therefore, the Legislative Guide for the United Nations Convention against Transnational Organized Crime and the Protocols thereto was created, with the purpose of which being to facilitate the task for national legislators, using this legislative guide as a model. What matters in this respect are the Protocols against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Human Trafficking, Especially of Women and Children. This legislative guide is vital because it has been prepared to assist policy makers and legislators in countries that have ratified the Convention or are preparing to do so. The Legislative Guide has been drafted to accommodate different legal traditions and various levels of institutional development. The goal was not to globalize criminal law but rather to achieve harmony between legislations so that they could be implemented around the world.

The legislative guide is divided into three main parts: Substantive rules regarding criminalization; Procedural and other legislative amendments to ensure effective criminalization; and Legislative and administrative measures to enhance legal assistance and law enforcement and  other forms of  international cooperation. However, the Convention requires States Parties to take specific legislative and administrative steps to implement its provisions in accordance with the fundamental principles of its domestic law in many political, legislative and administrative aspects to regulate migration. In fact, existing or newly passed national laws are compatible in terms of the determination of the offenses with the terminology contained in the Convention. However, this compatibility is not strictly a matter of fact, since each State Party may adopt more stringent measures than those provided for in the Convention to prevent and combat transnational organized crime.

The definition of migrant smuggling and its criminalization in this legislative guide has made it mandatory for all States Parties to criminalize certain criminal acts, including human trafficking as a separate offense or as part of a set of offenses involving at least the full range of conduct covered by the definition. In this respect, the Libyan legislature has breached the obligation imposed on it under the Convention, as the above-mentioned Anti-Migration Act did not include criminalization of the act of trafficking, either as a separate offense or as an offense within the scope of other offenses of migration.

  • Concepts similar to illegal immigration

It is extremely important to distinguish between illegal migration in one hand and migrant smuggling and human trafficking on the other. The crimes of migrant smuggling and trafficking have been dealt with in two separate provisions due to differences between the people trafficked (victims of trafficking) and migrants (victims of smugglers’ racketeering). The Protocol to Prevent, Suppress and  Punish Human Trafficking, Especially of Women and Children is more modern and more individual, reflecting relatively new concerns about the smuggling of migrants as a criminal activity distinct from the legal or illegal activity of migrants themselves. Moreover, the use by states of criminal laws and administrative measures to exercise control over migration is not new, as many states criminalize illegal entry or residence in their territory.

The Protocol on Human Trafficking, however, is part of a related series of international instruments dealing with illicit trafficking and related activities, particularly slavery, and the problem and legal responses to it have been evolving for a long time.

Thus, migration and trafficking are nothing new, they have been changing in form and reaction, and what is new is only smuggling migrants and generating illegal gains through the plotting of their illegal entry or residence as well as fighting these new types of criminal behaviour within the scope of combating illegal immigration.

As mentioned above, trafficking in persons and smuggling are two distinct issues, however both crimes overlap and intersect in aspects. Whereas exploitation is a necessary element for the crime of trafficking in persons, smuggling does not require the intended exploitation, but it can be regarded as one of the aggravating circumstances. In addition, the illicit gains are made from the act of smuggling itself. Moreover, the difference between the two is that human trafficking is an act that must be criminalized according to international human rights standards whether it occurs transnationally or is perpetuated entirely within the territory of a single country, while smuggling involves a distinctive feature—transnational operations requiring illegal crossing from one country to another.

The overlap between the crimes of illegal immigration and migrant smuggling is even greater, because migrants often get involved with the crime of smuggling migrants as accomplices to the criminal activity.

In other words, the Convention only criminalizes smuggling of migrants and human trafficking, and therefore separates the conduct of migrants on entry or residence by illegal means from the scope of the offense and returns it to its legal origin, so that they do not have any substantive or procedural obligations unlike domestic laws (such as Libyan law) which include offenses applicable to such persons, because it is a sovereign right of the State. This is the sole justification for the criminalization of the action.

On the contrary, Libyan law, when regulating the crime of illegal immigration in all its forms, did not deal with the organization of human trafficking, thereby protecting the victims (the weaker group) from the intended exploitation, despite the Libyan State’s ratification of the UN Convention Against Transnational Organized Crime on 24 September 2004 and included its provisions of this Convention in the domestic legislation, however, the provisions of the Protocol on Trafficking have not been covered by national legislations.

Due to the current state of the country, the weakness of state institutions and its inability to perform its vital tasks,  we note the failure of Libya’s national judiciary to implement the legal principle of the Libyan Supreme Court Decision dated 23/12/2013. Although its provisions are binding on all lower courts – which stipulates that once the ratification procedure is completed, the international conventions to which the State of Libya is bound are directly applicable – thus provisions of the Convention have priority over domestic ones, without the need to amend any domestic legislation that may be inconsistent. However, illegal immigrants have not been exempted from prosecution as victims as the Convention asserts, and there has been no protection for victims of human trafficking, as required by the Convention to which the Libyan state is a party.

Part Two

The effect of legal regulations on the rights of illegal migrants

The various legislative policies dealing with regulating migration have had repercussions on the situation of migrants, most of which do not take into consideration the protection of migrants in destination and transit countries, putting migrants in weak positions legally.

However, thanks to the continuing appeals of international and regional organizations, national legislation has changed its policy and migration has been seen through different perspectives: to strike a balance between conflicting interests and the desired goal of international peace and security. These hopes remain hostage to the recognition by national organizations of the rights of migrants and to ensuring that they are protected from the ambitions of criminals.

Chapter One

Migrants Position in National Regulations 

When revising the Libyan and Italian legislations in the previous section, we pointed out the closeness of the two systems in determining the legal status of illegal immigrants in terms of criminalizing entry and violating the laws governing migration, leading to procedural and substantive obligations such as filing a suit, with penalties ranging from imprisonment sentences, financial fines to expulsion. For this reason, centers of detention, accommodation and forced repatriation have been established.

However, juristic activity has had a significant impact on Italian legislation, which has eliminated the criminal character of mere illegal entry or residence, but keeps expulsion as arbitrary action against illegal immigrants.

However, there is always a justification for contradiction between legislation and real-life facts. All constitutions and covenants provide the human right of freedom of travel and movement, yet a person gets expelled for moving, the justification of which is restriction of a right rather than privation.

  • Disgraceful legislative policies that worsen the situation of migrants

A closer look into the facts on the ground would illustrate that the situation went beyond mere restriction of migrant’s rights by a set of rules and regulations, to the point of slavery. To the extent that it prompted the OHCHR to refer to the grave violations of migrant rights in Libya in a report entitled “Detained and Dehumanized.”

Refugees and migrants are routinely subjected to violations of their human rights by Libyan officials; law enforcement; armed groups and criminal gangs. They suffer from all kinds of abuse and arbitrary arrests in appalling circumstances as well as extortion, unpaid forced labour and killings. In a lawless land, refugees and migrants became an exploitable source of profit, a commodity that grew into an industry to the point of openly offering migrants for sale.

Amnesty International blamed the EU countries, especially Italy, for their restrictions of the flow of refugees and migrants crossing the Mediterranean without any regard to the consequences of their policies on those held up in Libya.

Libya’s criminalization of unlawful entry and residence in Libya only made matters worse, as authorities took this as a pretext to timeless collective and arbitrary apprehension. However, the law, the only regulation which protects the basic rights of migrants in general, stated that they should be treated in a humane way and their belongings and properties should not be looted or taken away from them (Article 10). The law stopped short of regulating their asylum procedures or addressing the issue of victims of human trafficking.

Since the start of the Libyan-Italian Alliance based on cooperation in coastal surveillance to prevent immigration to Europe, the policy of deportation, sea-based suppression and quartering up to forced deportation was adopted. Libya’s acceptance of the return of thousands of African migrants, particularly those heading for the coasts of the Italian island of Lampedusa, marked the beginning of a journey of flagrant violations of migrants’ rights within the accommodation centers and thus their repatriation to their countries of origin.

  • How absence of the rule of law led to the deterioration of the situation of migrants

Following the February 2011 Revolution, African migrants – with testimonies from the East and the West of Libya – were accused by anti-Gaddafi forces of working as mercenaries for the regime; resulting in a wide-scale campaign being launched against them, forcing hundreds into forced displacement to neighboring countries, and increasing numbers of assaults including looting, incarceration and murder.

In March of the same year, the Libyan regime attempted to adopt its old migration policies to pressure the West to back the alliance against it by opening the doors to migration to Italy, to the extent that Africans were forcibly transported to Italy. In a few months, nearly 35,000 migrants arrived at Italian shores.

However, the worst atrocities happened after October 2011, where with the collapse of the state, the detention of illegal migrants, exploitation, smuggling and trafficking began, so much so that every battalion, security or local force had detention centers without administrative or judicial control or supervision by human rights organizations.

As the living and economic conditions of migrants and refugees worsened, the risks to their safety multiplied and their legal position became more fragile. They became easy prey for criminal gangs, who took the opportunity of the security chaos for racketeering by migrant smuggling and human trafficking.

Atrocities against migrants are not perpetrated by smugglers and traffickers only, however, and armed militias too detain migrants and put them through abuse, rape, and torture, then sell them off to people-trading rings. As Libya became a hub of organized crime, many new slavery markets popped up in the country, in a phenomenon that may be called “migrant slavery.”

Among the violations committed in Libya are the ones perpetrated by the coast guards and the armed groups and agencies in charge of accommodation centers. Despite the implementation of Law 19/2010 that oppresses human trafficking with harsh punishments that are doubled if the perpetrator is a member of a state agency, which could reach up to ten years imprisonment and fines of up to LYD 60000, the penalties were not deterrent enough.

Amnesty International, in a report, appealed to the internationally recognized Libyan Government to take urgent steps to recover the rule of law and protect the rights of refugees and migrants who suffer violations from the moment they enter Libya to the moment they arrive at Europe’s shores. The report described incidents narrated by migrants — for example, an Eritrean handicapped man who was thrown alive from a lorry carrying migrants; a migrant hostage who was sold to another gang; migrants who could not pay ransom who were forced to work without pay.

Although the Libyan national legislation regarding instruments of protection is full of loopholes, Human International Law is binding to all parties in armed conflicts, including civil conflict. Therefore, Libya must abide by its commitments and reinforce human rights for all its subject citizens; and this obligation is also applied to non-governmental effective outfits  operating on the ground and perform semi-governmental tasks.

With the outbreak of the civil war in Tripoli in 2018, the migrant and refugee situation deteriorated even further. A UNSMIL report stated that Libya “cannot be regarded as a safe place”, where thousands of forcibly detained migrants are trapped in detention centers on the line of fire in conflict zones, without the lowest means of protection. A detainment center in Tajoura was attacked twice by airstrikes that hit part of a ward where migrants (men and children) were detained. The Libyan Illegal Immigration Service reported that at least 53 migrants and refugees were killed in the raid and 87 were injured, 15 of which were brought back to the detention center after treatment. The Service failed to give the names of the victims and the UN mission never received any death certificates of the deceased.

However, one of the most terrible violations during the incident was the refusal to allow migrants and refugees to leave after the first raid, and some of the few who managed to do so were forced back to the ward only to be bombed again. In interviews with the UN mission, migrants and refugees declared that they couldn’t give them the names of the victims out of fear of intimidation. Despite the fact that the UN mission provided both sides of the conflict with coordinates of the center’s site, as being a civilian establishment, it was raided as a military target because it is part of a larger military compound.

The tragedy does not end on Libyan shores, but continues to the opposite shores of the Mediterranean basin where migrants are cramped in overcrowded blow-up rubber dinghies or, at best, crumbling fishing boats that soon capsize due to overload or severe weather conditions until the sea turns into one large mass grave.

The legislation’s negligence of these rights led to the exacerbation of the migrants’ suffering. They were traded as a commodity or goods or even less, because a poor human escaping the horrors of war and famine is worth nothing for the mobs. Sadly, as migrants struggle to break free from their suffering, they find themselves falling into the abyss of slavery and exploitation.

Chapter Two

Legal Protection Mechanisms and Their Loopholes

National legislation and international conventions grant fundamental rights to human beings, not because they are a legal identity holder, but because these rights are granted to all, including those who do not have any legal identification documents. Supposedly, the treatment of illegal immigrants should be based on this principle.

The international community has organized human values into a wide range of laws, such as how to deal with forced displacement, asylum seekers, and migrants. Because these covenants are accompanied by guidelines, particularly those issued by the Office of the United Nations High Commissioner for Refugees, the International Organization for Migration and the International Labour Organization, they constitute the solid framework for protecting migrants and asylum seekers.

However, in the absence of ratification by some countries, such as Libya’s non-ratification of the most important of these conventions, the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, or total non-compliance with the principles set forth therein, such as Italy’s non-compliance with its obligation and its practice of a policy of repulsing migrants and returning them to centers of conflict and economic crisis. These protective principles of human values become more and more unrealistically hopeful.

  • Some aspects of the legal flaws

Among the many gaps in national legislative frameworks are those relating to security means and measures such as detention and deportation, which are characteristically inhumane, although they are issued in the form of judgments and decisions by judicial bodies, and despite being enforced by authorized administrative bodies. As a result, people who are intercepted or detained – sometimes for prolonged periods – are not aware of the minimum degree of their rights. It is precisely because of this lack of knowledge that they cannot challenge the legality of their detention, or know how to demand the availability of political standards in detention centers. If international covenants prohibit the arbitrary arrest and detention or exile of a human being, the actions taken by Italy and Libya of adopting repressive measures, lack the necessary conditions because they only take their own interests into consideration with total disregard of the rights of migrants.

A migrant’s lack of choice and ignorance of intentions leads them to the unknown, with the only certain thing being that they will face all kinds of risks, while smugglers subject them to inhumane treatment such as throwing them at sea in case of overloading, or by putting them at risk of drowning through launching their boats in severe weather conditions. For example, in October 2013, a fishing boat full of migrants capsized off the coast of Lampedusa drowning 300 people. Appallingly, the incident happened near Italian fishing boats who refrained from assisting the stricken boat, despite picking up the distress signal, for fear of legal persecution if they did so as assisting migrants even in distress was an offence punishable by law. This incident revealed a major flaw in the Italian legislative policy.

  • Negative effects of anti-migration legal mechanisms

One of the legal mechanisms adopted by Libya is the ratification of the Treaty of Friendship between Italy and Libya, by which the two countries pledge to cooperate to fight terrorism, organized crime, illicit drug trade, and illegal immigration. However, the Treaty included a package of repelling and containment mechanisms, and did not contain any measures to protect asylum seekers or those fleeing persecution in Libya – the reason why it was criticized by human rights groups. It had nonetheless withstood the backlash until the regime change in Libya a couple of years later.

In 2013, with the absence of a central authority allied to Italy in Libya, the former launched Operation Mare Nostrum to undertake quick responsive rescue patrols for migrants stranded at sea, where the rescued were taken to Italian shores as it became clear that landing any refugees or migrants on Libyan shores is illegal. Despite rescuing 160,000 people, the EU terminated the operation on the grounds that it became an attraction to migrants and replaced it with Operation Sophia, an EU military mission with a mandate to identify, capture and dispose of vessels used by migrant smugglers or traffickers. This operation contributed to efforts in preventing the further loss of life at sea; and then civil community organizations began their own rescue missions.

Prosecution is one of the legal mechanisms that guarantee migrants’ rights. Cases of illegal entry should be brought before the courts and prosecutors are entitled to detain persons entering without official authorization. But facts on the ground illustrate that migrants are often held outside legal procedures, for a limitless duration, and are not given the opportunity to challenge their detention or file complaints against the government authority that detained them, namely the Anti-Immigration Service.

Amnesty International asserted that few cases, if ever, appeared before the investigating and arbitration authorities due to Libya’s weak institution and the lack of necessary resources to carry out preliminary and final investigations. Among which are the cases brought before the Misrata court in March 2017, which acquitted 24 detained Eritrean women from the charge of belonging to the Islamic State. It is most likely that their nationality had been the main factor in their release. Eritrean is one of the seven nationalities to which Libyan authorities provide de facto non-refoulement.

In other cases, however, no action was taken. For example, in July 2017 after Amnesty International contacted the Attorney General’s office to inquire about information it had received about a group of Somali detainees held by an armed group who were subjected to extortion by torture. Despite that, the Attorney-General was also provided with a telephone number that one of them used to determine the place they were held, but no steps were taken in that regard.

Because of this inequitable situation, there were calls for the international criminal liability of offenders of serious crimes. Thus, the Prosecutor of the International Criminal Court expressed her interest in opening investigations into crimes involving migrants in Libya, once the court’s jurisdiction requirements had been met.

Part Three

Enhancing Global Migration Management Efforts

The idea of a global management of migration is not new, but the global standards on which it was based are full of gaps, unlike other international law issues. That is why international efforts have continued to address the shortcomings of standards relating to the protection of migrants in binding conventions and treaties and in non-binding rules and guidelines, and this has become a priority of any effective international migration structure.

One of the leading initiatives for the protection of migrants in countries in armed conflict or natural disaster is the “Migrants in Countries in Crisis Initiative”, launched at the Global Forum on Migration and Development in 2014 in Sweden. During his speech in the forum, former Secretary-General Ban Ki-moon referred to the need to address the plight of migrants trapped in conflict and natural disasters, and the negligence of migrants in crisis is a matter of global concern. This initiative and the accompanying statements followed the flights of more than 800,000 migrants out of Libya within months in 2011.

International initiatives have unanimously agreed that there is an urgent need for international solidarity and cooperation to consolidate the guidelines endorsed by initiatives on the protection of migrants, specifically migrants in fragile States, as a result of continued conflict or the aggravation of natural disasters.

Chapter One

The need for global migration management for fragile StatesAfrica has the most fragile countries in the world, and Libya comes out on top of the list because of the outbreak of war and lack of security, which made the emigrants living in the Libyan region susceptible to exploitation by smugglers and traffickers while fleeing persecution and economic and security chaos. Because of the total absence of Libyan national legislation that oblige the State to protect persons who by International Human Law have the right not to be deported to their countries of origin, the State of Libya disavowed all obligation to any refugee, despite acceding to the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969. This Convention has received considerable support in view of the wide range of cases covered and the provision of legal protection to those fleeing all forms of harm prevalent in States experiencing crises and natural disasters. However, the Libyan legislature did not adopt the provisions of this Convention in domestic legislation to become effective. The state’s organs and institutions are unable to enforce the applicable laws – despite their shortcomings – being means for providing various legal protections to both citizens and migrants against criminal exploitation of their difficult needs and living conditions. Libya also could not activate the judicial bodies to pursue the perpetrators of gross violations of human rights, which constitute crimes set forth in the Libyan Penal Code for trial and justice.

Because it is impossible for a single state to manage migration, global migration policy became a necessity. Migration as a transnational phenomenon involves two or more countries, namely, countries of origin and destination, and sometimes Transit States, as well as the fact that addressing the phenomenon is linked to more complex issues, such as internal conflicts and wars, and the collapse of political and economic systems. Migration has come to be a concept denoting a situation that is precarious for the states from which a rights-marginalized group is based.

International Standards of the Protection for the Rights of Migrants:

Despite the fact that global migration management systems are slow to respond to the challenges of migration and its related issues, collective responses have gradually begun, in order to achieve mutual benefits through coordination and cooperation in accordance with universal principles, and to promote the rights of migrants through a range of international covenants and domestic laws, most important of which are:

  • Protection from persecution, violence, torture, and war

Legal framework for the protection of refugees from persecution under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol provides for the legal definition of refugees and the reasons for their access to this legal status, which entitles them to a range of rights and benefits that distinguish them from migrants. Although the Universal Declaration of Human Rights does not impose an obligation on states to accept asylum applications, it guarantees the right to seek and enjoy asylum from persecution. Moreover, international law obliges states not to forcibly return refugees to states where their life or liberty is at risk, however, refoulement may occur if there are reasonable grounds, such as if a person constitutes a threat to the security of the Host State.

However, the above-mentioned Convention did not provide protection to those who cross international borders because of war, hence the significant role of regional treaties in filling the gaps, and expanding protection to include the definition of refugees and cross-border movements for such reasons as war, natural disasters and environmental change.

Protection against violence and torture is based on human rights and international law treaties. The 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment regulates the prohibition of the forcible return of a person to a State with real grounds for believing that the person will be subjected to torture. This prohibition of refoulement is absolute and without any exceptions.

  • Protection against trafficking and smuggling:

This protection is provided in the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, however, the scope of protection is limited to victims of transnational organized crime, in the sense that victims of trafficking within the territory of a single state are not protected, and that states may repatriate victims of trafficking when there is no reason to acquire the right to asylum. Treatment is thus limited to providing the necessary protection only to those in a situation of vulnerability that has enabled criminals to exploit them in multiple forms.

Due to the novelty of the issue of the protection of migrants from smugglers’ rings, unlike trafficking, it still requires much effort to be legislated. As smuggling is predominantly seen as a business deal between migrant and smuggler, managed by the two parties and profitable for both, necessary protection for the susceptible position of migrants was often obscured.

The international approach is based on the criminalization of the smuggling of migrants rather than on migrants themselves, or illegal residents, as the reality is that the international community takes a neutral position toward the legal status of migrants.

The above-mentioned United Nations Convention is an international instrument dealing with the criminalization of the smuggling of migrants, but it has not created a new right for migrants. Instead, it has established a new obligation for States parties under which they are obliged to provide basic assistance to migrants and illegal residents, in cases where their lives or safety are at stake, to ensure that the rights established under international humanitarian law are preserved.

The Protocol also authorized the repatriation of smuggled and illegally resident migrants to their countries of origin, taking the necessary measures to ensure orderly repatriation with due regard for the safety and dignity of the person, thus granting rights to illegal resident migrants, but during carrying out deportation measures against them.

  • Protection of workers and female servants

The international legal framework for labor migration, which constitutes a regulation for the protection of migrant workers and members of their families, is the instrument of the International Labour Organization, as well as the 1990 Convention on the Protection of the Rights of Migrant Workers and members of their families, and the 1949 Convention on Migration for Employment. In addition to other international covenants, the Convention provided substantive and procedural safeguards for both regular and irregular migrants at all stages of labor migration. The areas covered included the conditions for employment of migrant workers, the establishment of equal treatment between nationals of the State and migrants legally residing either through trade union membership, working conditions, or other benefits.

The international rules governing migrant labour are probably the least wide in scope compared to other migration laws related to persecution, torture, trafficking, and smuggling. Although some of them are modern, they have gained international attention beyond the rules established for the protection of migrant workers, the latter arising from bilateral or multilateral conventions at the regional level, and were not widely ratified.

  • Protection of the family unity

The International Covenant on Civil and Political Rights provides for the right of the family to protection from society and the state, as is also provided for in the 1989 Convention on the Rights of the Child and members of their families. At the international level, the term “family unity” is not mentioned, but the meaning is clear through the general provisions of these covenants, which have served as a constraint on domestic legislation. The provisions entitle migrants who have been forced to leave their countries of origin leaving behind their families – especially children – to reunite the family on the grounds that separation from the family poses a threat to the physical and moral safety of its members.

  • Protection of the special needs of children

The Convention on the Rights of the Child gives primary consideration to the best interests of the child in all actions relating to the child, and since child migrants are vulnerable to exploitation and abduction, particularly those who are migrating without their parents or separated from their families, migrant children are often denied support and protection services.

In paragraph 32 of the New York Declaration, the Member States of the United Nations stated that they would protect the rights and freedoms of all refugee and migrant children and, through a range of safeguards in accordance with international legal standards, from finding appropriate methods of age assessment, so that their right to privacy and their human dignity are neither violated nor affected by their human dignity; the appointment and implementation of a guardian of the child – the victim of trafficking or smuggling – as soon as the child is discovered, so that the child can be accompanied until a lasting solution is found that serves the best interests of the child, while avoiding direct contact between the victim and the offender throughout the investigation, prosecution and, if possible, trial sessions. Children must also be provided with all procedural and security guarantees once their testimony is heard which does not harm the interests of the child, and special and suitable shelters for children should be provided under the supervision of qualified, specially trained personnel to ensure the care, protection and needs of child victims.

In the case of the refoulement of child victims, it is necessary to be a safe return in their interest, in accordance with the guarantees established, by having in their country of origin an appropriate person who takes care of them as a parent, relative or childcare agency in the country of origin. The return must be carried out through cooperation between the judicial authorities and the relevant ministries of the country of origin with the relevant social authorities and services in the country of origin. However, when the child cannot be returned safely or if refoulement is proven to not be in their interest, appropriate arrangements should be made for long-term care which guarantees the child’s protection and the preservation of their fundamental rights.

  • Special protection for female migrants and female refugees

Although the United Nations Convention on the Elimination of All Forms of Discrimination against Women constitutes the legal foundation for the full protection of the human rights of women and girls, these rights during migration – on their long and precarious path – are subject to violations by a group of parties. Some groups of women are more prone to risk than others—pregnant women, new mothers, nursing mothers, transgender women, older women, and those with disabilities.

Due to the absence of an integrated body-sensitive legislative and administrative structure, the legal status of migrant women becomes more vulnerable, such as the lack of provision for the right to maternity and birthing care services and the availability of specialized psychological services for rape victims.

The suffering of migrant women also includes limited access to information on their rights during migration, access to justice and fear of extortion. Therefore, victims who are women become withdrawn and shut themselves in for fear of reprisal or further violation.

Chapter Two

Barriers to Global Migration Management

Regulating migration, either by categorizing it as a criminalized felony or administrative offence, is a sovereign right that constitutes an impediment to a coordinated global policy against serious crimes related to the smuggling of migrants and human trafficking.

This concept of regional sovereignty and the security dilemma associated with the issue of migration are a barrier to ensuring that criminals are prosecuted and punished with penalties that are proportionate to the damage they caused and the financial benefits they have extorted through their criminal activity.

Recently, the emphasis has been placed on the negative and direct impact of migration on national sovereignty, by its effect on the integrity of geographical boundaries, security and political stability, and even on social and cultural values. The approach taken was designed to create a situation of fear for citizens of Host States, as well as to raise concerns for States of origin and Transit States.

Since migration is one of the ways to obtain citizenship, this was enough to motivate receiving States, or Host States, to combat immigration on the pretext that once migrants are naturalized they are able to participate in decision-making measures concerning the sovereignty and future of the State. These countries are also worried about highly skilled and qualified migrants who can easily climb up the professional ladder to leadership positions, which can affect the identity of the state.

On the other hand, migration, with the drain of labour and skilled people, has a negative impact on the source countries whom already suffer from economic, political and security crises. This is in addition to the social impact of migration on society which can cause disintegration and fragmentation of communities.

This leads rich countries to adhere to the principle of sovereignty and territorial integrity, the adoption of selective immigration regulations, and the legal displacement of certain groups whose presence on national territory is unwanted. These implications were thus negatively linked to human rights, and have surpassed all geographical boundaries. The goal of the global approach to migration became the search for global solutions and to remove obstacles to its management. The international community has at present a major concern: the protection of migrants and refugees from serious crimes by prosecuting and punishing perpetrators of such crimes, regardless of where the crime occurred, the nationality of the perpetrator or the nationality of the victim, applying the principle of universality, which is based on the common interest of the international community.

The adoption of the universal jurisdiction principle is a means of removing obstacles related to jurisdictions that allow fugitives to find safe havens, especially since some countries need legal assistance as they are not in a position to safeguard the rights of migrants.

Additionally, the importance of the principle of universal jurisdiction arises not only when state authorities are unable to prosecute the perpetrators of smuggling and human trafficking, but also when they are unwilling or not working seriously to prosecute those types of offenders.

In addition to this legal mechanism for international cooperation in the judicial field, there is another mechanism to remove these obstacles, namely, the mechanism for carrying out awareness campaigns under the supervision of international and local organizations, to give a proper picture of migration, diverging from inflating and threatening images, to raise awareness of the nature of smuggling, trafficking and the involvement of organized criminal groups in many of these serious criminal activities which are not only harmful to migrants themselves but also to the wider communities.

The Global Migration Agreement asserts that in order to see the global picture of migration, encompassing all key aspects of the phenomenon, barriers to its global management must be removed. This can be done through accorded, well-planned and well-informed methods, based on the unification of concepts with the aim of cooperation to meet the migrant’s need when they are most vulnerable. Moreover, this can be achieved by the obligation of states to share responsibilities and address related challenges, in order to create conditions that allow local communities and individuals to live in safety and dignity in their own countries. The international community, too, must work to keep migrants out of the way of harm, and it is also vital to highlight the positive contribution of migrants and to promote integration and social cohesion. All of this can be accomplished when the obligation is made to facilitate regular and legal migration and the implementation of development programs for the benefit of all.

Conclusion

Interest in the legal regulation of migration began locally and ended globally, with a clear incompatibility between many national legislations with a novel interest in the phenomenon, as illustrated in the Libyan and Italian legislations.

While the international interest in migration needs national legislations to translate it into binding local laws, the latter were characterized by many shortcomings, such as the failure to update the legal and penal system and violating international covenants by deliberately not abiding by international obligations and recommendations.

Whereas the Italian legislation has many inadequacies regarding the protection of migrants’ rights, the Libyan legislation was laxer in coping with the international regulation of migration in aspects such as the failure to specifically provide for the protection of migrants’ rights and fundamental freedoms, the failure to recognize migrants’ rights and not criminalizing human trafficking. It is clear that both legislations, the Italian and the Libyan, focus on regulating migration along the lines of national interests and security concerns without taking its global aspects into consideration.

Inconsistency between national legislation and international regulation is due to several reasons, among which is the angle of interest. In the international community, migration is considered a transboundary organized crime that requires the replacement of the local jurisdiction’s prevailing legal principles of criminal law with the principle of universal jurisdiction. This prompted countries to think carefully and organize well before joining international covenants that might hinder national sovereignty.

Since the fundamental core of international migration policy is the protection of migrants, refugees and asylum seekers, Libyan legislations and, in particular, executive authority must be part of this general policy of international human rights laws and the related international standards. Moreover, it is vital to recognize the importance of ensuring the participation of the concerned national and international parties as well as migrants to adopt the best mechanisms to treat all migration related issues.

Therefore, we recommend:

  1. The amendment of [the Libyan] Law 19/2010 in a way that guarantees the abolition of the criminalization of unlawful entry of, residency in, and departure from the State of Libya. This would enable the Libyan authorities to eliminate mandatory detention of migrants, turn their misconducts into administrative offences, find ways of detention other than incarceration and implement their regulations in accordance with the International Human Rights Law.
  1. Enact legislation to tackle human trafficking and implement it effectively in a way that guarantees preservation of the lives of victims and prosecution of traffickers in accordance with international standards.
  1. The State of Libya’s ratification of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and the enactment of an effective national law of asylum together with the related institutional arrangements.
  1. Take steps to fight racism and prejudice against migrants through public awareness campaigns both on the governmental and social levels.

References

  1. DAL LAGO “Non-persone,l’esclusione dei migrant in una societa globale” Nuova Edizione 2004.

F.BENTIVOLI, F.PITTAU. “L’immigrazione estera in italia”.

G.DONDI,  “Il Lavoro degli immigrati”. In leggi elavero,Milano 2003.

  1. TOGNETTI BORDOGNA “Struttura e strutegia della famiglia immigrate 2005.
  2. Buhadi “L’immigrazione clandestine nel bacino del mediterraneo’ Roma,2012.

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