6. Human rights violations and abuses against migrants in Libya
Many migrants have described to UNSMIL and others their time in Libya as “hell”. They have
been subjected to arbitrary detention, torture – including rape and sexual violence – and other illtreatment, unlawful killings, and forced labour.
6.1.
Arbitrary detention and inhuman conditions of detention
International human rights law prohibits arbitrary detention.47 Detention is arbitrary if it is not in
accordance with the legitimate purpose and procedures established by law, or is otherwise
inappropriate, unjust, unreasonable, or unnecessary in the circumstances.48 A detained person has
a range of due process guarantees , including the right to be informed of the reason of arrest at
the time of arrest, to be brought promptly before a judicial authority and trial within a reasonable
period or release, as well as the right to prompt and regular access to legal representation and
advice.49 Persons deprived of their liberty must be treated with humanity and with respect for
their inherent dignity.50
As stated by the Special Rapporteur on the Human Rights of Migrants, “irregular entry or stay
should never be considered criminal offences: they are not per se crimes against persons,
property or national security. It is important to emphasize that irregular migrants are not criminal
per se and should not be treated as such.”51 The Committee on the Protection of the Rights of All
Migrant Workers and Members of their Families also emphasizes that while irregular entry and
stay may constitute administrative offences, they are not crimes: “crossing the border of a
country in an unauthorized manner or without proper documentation, or overstaying a permit of
stay does not constitute a crime. Criminalizing irregular entry into a country exceeds the
legitimate interest of States parties to control and regulate irregular migration, and leads to
unnecessary detention.”52
47
ICCPR, art. 9 (1). See Human Rights Committee, General Comment No 35, Article 9 (Liberty and security of
person), CCPR/C/GC/35. See also the procedural safeguards for persons in detention under the Body of
Principles of the Protection of all Persons under any Form of Detention or Imprisonment adopted the General
Assembly in its resolution 47/173 on 9 December 1988.
48
The Human Rights Committee has clarified that the meaning of the term “arbitrary” must be interpreted
“broadly to include elements of inappropriateness, injustice and lack of predictability”: Communication No.
305/1998, Hugo van Alphen v The Netherlands, Views adopted by the Human Rights Committee on 23 July
1990, para. 5.8.
49
ICCPR, art. 9 (3). Article 9 outlines other due process rights that relate to arrest and detention.
50
ICCPR, art. 10.
51
A/HRC/20/24, para. 13.
52
General Comment No. 2, CMW/C/GC/2, para. 24., The United Nations Working Group on Arbitrary Detention
has also noted that “criminalizing illegal entry into a country exceeds the legitimate interest of States to control
and regulate irregular immigration and leads to unnecessary detention”, A/HRC/7/4, para. 53
14
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