DAAM’s periodical N°04 on Irregular migration
The Migration issue holds a place of paramount importance with regard to the relationship between developed and developing countries due to its non-separative connection to all political, economic and social aspects since the collapse of political and economic conditions is what drives migration from developing to developed countries.
Irregular migrationis considered to be one of the most important social issuesthat remains a grave concern to the international community, it is aproblem of high sensitivity with effects that extends to all segments of society,not only youth or young men but also women and children.
Migration in itself is not illegal or a negative act, it is a human nature that is practiced congenitally, a legitimate phenomenonand a fundamental principle of human rights,as article 13 of the Universal Declaration of Human Rights stipulates that everyone has the right to freedom of movement and the right to leave any country, including his/her own, and to return to his/her country.But in light of the rise of state sovereigntyconcept around the globe,national legislation has intervened to put many obstacles and set harsh conditions to people’s movement from one border to another, and then criminalize such a transition if those harsh conditions were not met.
There is no doubt that the widening economic inequality gap between the countries of the North and the South of the Mediterranean, as well as the increase of armed conflicts in Africa and the Middle East, and the events of the uprisings so-called “Arab Spring” launched in 2010 has produced many developments in the migration issue, and increased immigrants from the Arab region, especially from Syria, Yemen and countries that is witnessing violence or violent armed turning points.
The characteristics of immigrants has changed and are no longer limited to the unemployed and poor classes only,The presence of middle class high school graduates, women as well as families who did not exist before among immigrants is noticed, The security vacuum resulting from these conflicts has also produced and intensified thesmuggling of migrants phenomenon in origin and transit countries, such as Tunisia, Libya and Egypt.
As for the North Mediterranean countries in Europe,the rise of theconservative right-wing political current, which is inherently anti-immigrant and the spread of terror operations of radical Islamic groups in Europe, as well as successive economic crises have all gathered together to make Europeansprioritizesecurity options through maximizing their borders scope to include the southern Mediterranean countries’shores where they establish camps for admission and screening of refugees and migrants, or by developing and activating security aspects and theoriesthat reduce the space of working and operating for humanitarian aid organizations in the Mediterranean, which led some of them to withdraw from this line of work and exposed their employees to security harassments And prosecutions, especially in Italy, as well as working with governments of countries of the Southern countries to aggravate domesticpenalties for movement or smuggling.
Eventually, migration and mobility are inherent human rights and whatever legislators or politicians do Migration will not stop, so treating this issue should be with a comprehensive approach (human, legal, political, economic, cultural, social), astreating this issue on legal and security basisonly will never be sufficient.
The Democratic transition & human rights support center (DAAM) attempted to study this phenomenon. On 8 and 9 December 2018, DAAM Center organized, together with the Defender Center and Tanarotorganizationan international forum on “Problems of irregular migration on Judicial and human rights basis “with the participation of human rights organizations from 10 countries and region experts who enriched it with their valuable experience.
Their point of views did not differ from the aforementioned opinions, and those were the suggestions they came up with arranged in accordance to the forum’s highlights:
First panel: Definition of irregular migration and human rights mechanisms at both the international and national level:
– Non-criminalization of migration and working toward promoting the concept of safe migration.
– More emphasis had to be placed on distinction carried out by many countries between refugees and migrants in order to evade international obligations towards refugees.
– To provide the necessary guaranteesneeded to promote the concept of safe migration by placing obligations on countries through a set of appropriate mechanisms, procedures and policies.
– To increase knowledge on migration issues at the conceptual, legal and human rights levels.
– Revise legislation to make the judiciary the sole source of deportation decisions, but not to forcibly return the migrant to his or her home country.
– Urging the signatory countries to the agreements relating to migration to ratify and activate its terms as well as the non-signatory states to sign and ratify these agreements.
– Aggravating penalties for migrant smugglers in various national legislation.
– Activation of domestic judiciary mechanisms to deal with human trafficking phenomenon.
– Ensuring that immigration laws and regulations are in compliance with national legislation to make them enforceable, feasible and compatible with recognized international mechanisms.
– To make detention centers and shelters subject to judicial supervision.
– To ensure that migrants are transferred from detention centers and shelters as soon as the investigators’ procedures related to immigration applications are completed
Second panel: International Policies for Irregular Migration:
– The international community should provide assistance to migration transit states, especially states that are highly exposed to armed conflicts.
– We call upon the countries of the world to adopt Marrakech global compact for « Safe, Orderly and Regular migration» and to respect its articles.
– To attempt to provide food security for migrants.
– To ensure that migrants are not forcibly returned to their countries.
– To raise the efficiency of individuals and institutions investigating Migration applications through the necessary needed training on an ongoing basis.
– To work on and call the international community to support, the return of rescue boats that were suspended to its work with more vessels for rescue operations. And to condemn actions taken by some European countries «Italy», which obstructed international rescue operations in the middle of the Mediterranean and caused it to stop.
– To stop operations taking place at high seas that aim to return refugees and migrants to countries from which they fled, and to ensure that migrants do not stay in or go to unsafe countries.
– Encouraging media to adopt a human rights’ speech on the issue of migration and migrants, and to ensure that they promote rejection of racism, discrimination and hate speech.
– To promote the right of accessing information for migrants.
– To establish a network or alliance of associations and organizations that participates in international support forum, it is also important to strengthen relationships with human rights, humanitarian organizations, European and international powers and governments that support refugees and migrants’ rights, and adopt humanitarian policies towards them.
– To further highlight the work of local organizations working in the field of migration.
– To promote literature and arts that present migration and migrants issues and to highlight the human suffering that causes this phenomenon.
Finally, We wish to successfully, through this edition, be able to contribute important information and constructive ideas to help interested researchers and decision-makers to find appropriate means to cope with migration fairly and comprehensively.
We would also like to thank our partners Defender Center and Tanarot organization for their support of this forum and this edition, and for their help and ideas which they have provided in all preparation and execution phases. We also pay special thanks to artist Asmaa Bashasha, who gave us her wonderful paintings to be an ever-presenttestimony of what was written within the pages of this edition.
Khaled Zew
Supreme Court Barrister
And a member of the National Council for
Civil Liberties and Human Rights in Libya
Introduction
Before talking about the relationship between the crime of smuggling migrants with those crimes stipulated in Rome Statute, it is fine to recall some basic definitions related to the concept of migration first and to the crime of smuggling migrants.
First: Definition of migrant:
but this term covers all cases in which an individual decides to migrate freely without the intervention of an external coercive factor.
The International Organization for Migration (IOM) adopts the definition that defines migration as the movement of a person or a group of people between countries or within the same country between two places on its territory.
First: Definition of migrant:
Smuggling migrants may be defined as the arrangement of an illegal entry of a person into a State Party of which that person is not a national or a permanent resident, in order to obtain, directly or indirectly, a financial or other material benefit.
The role of the judiciary in coping the phenomenon of smuggling migrants:
Countries, especially receiving countries, are making great efforts to counter the flows of migrants. However, this phenomenon is continuing to grow and increase. Failure to face the phenomenon may be due to the challenges that are facing the States.
Those challenges that can be hastily summed up as the most important here:
Lack of mutual trust between states and excessive adherence to the concept of sovereignty.
1- Diversity of legal systems.
2- Lack or weakness of channels of direct communication between competent bodies in different countries.
3- Different priorities for countries.
4- Cultural and linguistic challenges.
In addition to these challenges, there are others that are facing international cooperation to confront the phenomenon of smuggling migrants, this struggle still lacks the most important tool which is judiciary. It is difficult to say that there is an effective judicial control against migrant smuggling gangs.
This judicial deficit appears both in terms of national and international jurisdiction:
As for the national judiciary:
National judiciary in origin states and in transit or passage states appear to deficit and ineffective. This deficit has been aggravated by the transboundary nature of smuggling migrants crime and the rejection of judicial systems to cooperate with each other for various reasons, for example adherence to an old classical concept of sovereignty, Apart from, the Non-activation of real training systems for judges. So the result to all of this was this deficit in fighting this crime.
As for the international judiciary:
International criminal law defines two types of courts (special courts and permanent courts)
In the case of special courts, 5 courts are established on the occasion of a certain specific crime that has occurred and ended. Consequently, this type of courts is not related to recurring or repeated crimes, such as the crime of smuggling migrants, which necessitates the exclusion of this type of court from our research.
The physical component of the crime of smuggling migrants is the criminal behavior taking three forms, smuggling of migrants or facilitating the smuggling of migrants, or allowing a person to remain in a country unlawfully
The permanent criminal courts has only one example which is the International Criminal Court, whose jurisdiction and function was regulated by the Rome Statute. This Court ‘s narrow substantive jurisdiction prevents it adjudicating many crimes that falls outside the scope of the four trial forms enshrined in its Statute, namely article 5 :
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole and the Court shall have jurisdiction under this Statute to consider the following offenses:
1- Genocide.
2- Crimes a gainst humanity.
3- War Crimes.
4- Crime ofaggression.
Elements of smuggling migrants crime:
The crime of smuggling migrants, like any other crime, has two grounds physical and moral.
The physical component of this crime is the criminal behavior taking three forms, smuggling of migrants or facilitating the smuggling of migrants, or allowing a person to remain in a country unlawfully.
The moral element is the criminal intent, since the crime of smuggling of migrants is a deliberate crime that does not occur by fault or error.
Noting that according to Article 6 of the Protocol against the Smuggling of Migrants, the crime of smuggling migrants requires a specific criminal intent and not merely general criminal intent. The specific intent is the offender’s will to obtain financial or other material benefit.
Does the International Criminal Court have jurisdiction over the offense of smuggling migrants:
As we have noted, Rome Statute has defined four exclusive crimes, namely, war crimes, crimes against humanity, genocide and the crime of aggression.
Thus, the competence of this court in considering the offense of smuggling migrants is subject to the inclusion of this crime as one of the four crimes mentioned above.
Sondos Bishnawi
Judge
Migration is an old phenomenon in human history, It is affected by changes in economic , social ,and legal systems due to its direct connection to various political, social , and economic aspects.
The development of Human societies and its political and legal systems which draw the line for freedom of movement and set conditions for new-comers had its clear impact on the development of this phenomenon which is closely connected with notion of sovereignty, It went from a means of earning a living and achieving development to one of the most critical social phenomena that occupies a significant position within the challenges facing the international community.
It is no longer a phenomenon limited to certain states or societies it has become a global phenomenon that all countries suffer from, whether developed countries or developing countries.
Although the phenomenon of irregular migration is an international phenomenon, it has been confronted by different methods that varies from one country to another. the countries I refer to here to are states of reception, which represent the destination of the migrant and the transit countries through which the migrants arrive.
It is extremely important to address national and international approaches used in confronting irregular migration as it became one of the most important issues that faces countries which consider irregular migrants as risk and crisis factors and one of the main reasons of causing instability and insecurity and spreading organized crime, drug trafficking and religious and ethnic extremism, the fact that helped justifying the use of harsh countermeasures to confront this phenomenon without giving enough attention or care to Migrants’ rights which eventually weakened their legal status.
The international community has made sincere efforts to combat irregular migration through adopting series international conventions including the United Nations Convention against Transnational Organized Crime and its Protocol against the “Crime of the Smuggling of Migrants by Land, Sea and Air” which paved the way for regional and bilateral agreements made between transit and receiving countries and also between origin and receiving countries that aim to promote international cooperation to eliminate the phenomenon, this cooperation can be easily noticed in the creation of the United Nations Commission on Human Rights to the mandate of the Special Rapporteur on the Human Rights of Migrants, the commission which urged to find ways to protect the rights of migrants, but it worth to be said that achieving both protecting human rights on one hand and the host States’ security seems a difficult task.
The excessive increase in migrants number as a result of successive political crises experienced by some countries led many to call for putting the irregular migrants situation into a clear legal frame through adopting international conventions that created two types of mechanisms: on one hand mechanisms to confront the phenomenon of migration that focuses on states’ security and on the other mechanisms that creates a balance between sate’s security and Human rights.
Nevertheless, these agreements remain of limited importance. A clear example of that is the International Convention on the Protection of the Rights of All Migrant Workers, which was concluded in 1999 and entered into force in 2003, while many countries of origin ratified it, receiving countries did not sign, although receiving countries in Europe, North America and other countries such as Japan, Australia and the Gulf States normally attracts the majority of migrant workers which made the problem of settling their situation and putting into a legal frame continuous, complicated and intricated.
Definition of irregular migration according to international perspective:
Before addressing proper means that should be used to confront irregular migration, we should determine its definition according to international statutes, the European Commission defined irregular migration as “any entry by land, sea or air into the territory of a Member State illegally by forged documents or with the assistance of organized crime networks, or by entering the European Space Area in a legal manner through the consent of the authorities to obtain Visa and then stay after the expiration of the specified period or to change the purpose of the visit and residence without the consent of the authorities”
The Global Commission on International Migration (GCIM) defined it as “passing through a country without the consent of its authorities and without having legal conditions needed to cross the border as a result for not having the necessary legal documentation”.
Article 5 of the International Convention on the Protection of the Rights of All Migrant Workers defined irregular migrants as those who are non-documented or in an irregular situation which leads us to adopt the term irregular migration.
International conventions generally determine four categories of migrants
The impact of migration From an international perspective led to divide it into two types of migration irregular and legitimate or legal migration in other words regular law-abiding migration, which is the type of migration that happens according to internationally substantive and procedural rules and each country’s legislation requirements, the most important of which are that the migrant should hold a valid legal travel document, not to be legally barred from leaving the country for any reason, to obtain a legitimate authorization of entry to the country he wishes to migrate to, and to reside or terminate his/her stay at this country in accordance with its laws and regulations.
Based on the aforementioned, we conclude that it is the state’s of origin knowledge of the citizen’s movement and his destination and the approval of the receiving country what provides legitimacy to his/her migration.
• Types of migration:
In addition to regular migration, which we determined its terms, It should be mentioned that irregular migration also has its terms and types, it is divided into two types, the first type happens when a migrant does carry legal travel documents and does not have the legal permission to enter the country of destination or the permission to departure from the State of origin and yet still enters to a state by an unauthorized way, the second type is to travel illegally according to the means previously mentioned but settle the legal status later with the authorities in accordance with the laws of the receiving State.
• Categories of migrants:
By reviewing international conventions that mentioned the legal status of migrants, we clearly don’t find a unified legal system or a comprehensive preventive mechanism that aims to protect migrants, we can only find set of procedures that aim to confront the phenomena and deter who is responsible for it without establishing legal norms that is compatible with different categories of migrants, or unified standards that would help in understanding the phenomenon, and enable national legislation and judicial systems to follow them in order to figure out mechanisms to counter irregular migration.
International conventions generally determine four categories of migrants, persons who migrate illegally without their status being settled, persons who migrate legally and whose term of residence is due, persons who are not permitted by their visas to get paid work and end up working illegally, and finally rejected asylum-seekers who do not comply with the Geneva Convention relating to the status of refugees.
1- International approaches to irregular migration:
In theory, it seems that international conventions have called for framing the phenomenon of irregular migration and controlling through a set of guidelines.
However, paying respect by states parties to these conventions to the guidelines doesn’t always occur due to various reasons that concern the receiving states and their attempts to protect their sovereignty, stability and security, a clear example of that is the migration law issued by Italy in 1998 which is the first of its kind to set a legal system for migrants, it recognizes the procedure of refoulement and organizes detention and accommodation centers for irregular migrants.
This law also determined the duration of detention for migrants which decides their fate. However, this law was not sufficient to deter migrants. One incident occurred in October 2013 concerning the sinking of a ship carrying 300 migrants who could have been assisted by fishing vessels but they didn’t as they were afraid to be punished by Italian law which criminalizes assisting irregular migrants by any means.
Despite the importance of International agreements in confronting irregular migration, they remain merely efforts that do not achieve the objective of effectively confronting this phenomenon and all its aspects or make a balance between human rights needed guarantees and confronting migration, this happens due to the absence of comprehensive strategies and long-term policies by receiving countries and origin countries as international efforts to cope with the phenomenon of migration are only reactions made to certain situations that lacks inclusiveness and to put a legal frame work for irregular migration, clear guidelines for proper means to confront this phenomenon should be established and the rights of migrants should be clearly determined and punitive rules should be appropriate and in accord with the characteristics of the case or the situation we are facing.
The basic principles needed for a comprehensive international framework have been addressed in numerous separate international conventions such as the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which has not been ratified by many receiving countries, and the United Nations Convention against Transnational Organized Crime 2000 and its two protocols on the prevention of human trafficking and the fight against the smuggling of migrants by land, sea and air which also has been ratified by a few countries.
Addressing the issue of irregular migration has taken different forms and approaches that varied according to issues and problems raised, but the main forms in which it has been addressed is as a phenomenon that is troubling the international community, as a source of dangers that may threaten the receiving countries and as a situation that deserves further attention and protection when it comes from a fundamentally human rights perspective, that last form is the main reason that not long time ago addressing the issue of migration was mainly linked to the rights of migrant workers and their families and any discrimination that might be experienced by migrant workers in reception countries, the very countries that after the world attracted migrants as Labor force, or in other words, it forced them to leave their origin countries to participate in reconstruction. This approach or point of view which was adopted by many countries in a certain historical era in order to protect migrants’ rights was not pursued later as official policies have changed as the receiving countries now cope with migrants and develop complicated laws and regulations to curb migration, as migration, to them, became illegitimate and applied only on selective basis where the receiving countries seek to attract skillful talented individuals and set limits and obstacles to other large groups that they once before considered them to be a useful mean for business and development, but became later a risk and crime factor that pose a threat to their stability and security.
In this sense, irregular migration has become a concern for receiving countries, which seek to establish security policies of a discriminatory nature but the international community has adopted a different perspective through concluding several international and regional conventions that aims to curb this phenomenon instead of imposing the needed guarantees to protect migrants, and despite their effort in applying that perspective they has been unable to control this phenomenon, which has been stated as a crime in the penal law of many receiving, transit and origin states.
Due to pressures imposed by receiving countries, especially European countries as they are the main destination for irregular African migrants and migrants’ tragic situation, African countries were forced to take necessary measures to counter irregular migration and conclude several bilateral conventions that included several deterrent and punitive measures that excludes human rights protection, it can be said that these are purely security measures that relates to border detention and the removal of irregular migrants from the territory of the receiving states.
The United Nations has defined irregular migration as “the unformalized entry of an individual from one State to another by land, air or sea … This entry does not carry any form of permanent or temporary residence permits, nor does it respect the necessary requirements to cross the borders of the State”.
From this perspective, there is a clear difference between human trafficking and smuggling as the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Crime, defines the smuggling of migrants according to the following elements: arranging illegitimate entry of a person into a State Party of which that person is not a national or permanent resident.
Smuggling of migrants and human trafficking are both international criminal offenses, therefore, it is necessary to distinguish between both of them to determine and clarify all aspects related to them, while the act of smuggling involves the transfer of individuals from one State to another for profit, human trafficking is criminalized including two additional elements that go beyond the scope of smuggling, it must involve crooked means such as coercion or abduction for the purpose of exploitation regardless of whether or not exploitation has taken place or occurred, it is crucial to differentiate between means used to commit both crimes, in human trafficking cases the means used are usually threats of force, use of force, any form of coercion, abduction, fraud, abuse of power, social abuse or abuse of a vulnerable situation, or through paying an amount of money. As for irregular migration it happens according to the person’s consent where he/she contacts smugglers to help him achieve his objective, In addition to that , the two offenses differ in purpose, human trafficking usually includes sexual exploitation, slavery or sale of organs and similar practices, on the contrary, irregular migration is the crime in which smugglers seek personal benefit that may be financial, of a materialistic nature or otherwise, and any exploitation ends as soon as the migrants reach their destination where they become free.
The two offenses differ in terms of requiring the consent of the victim. In human trafficking, the victim consent is not required, even if they gave their consent at first under any circumstances, such consent is meaningless when we analyze traffickers’ acts that are usually coercive or deceptive, on the other hand, migrants are fully aware of all the circumstances that surrounds smuggling them, which are generally considered offensive and dangerous, yet they agree to being smuggled with their free will.
In this context, the United Nations Office on Drugs and Crime (UNODC), which plays an important role in addressing irregular migration and its consequences, has produced its model Law against the Smuggling of Migrants in response to the request by the General Assembly to promote and assist the efforts of Member States to become party to and implement the United Nations Convention against Transnational Organized Crime and the Protocols thereto, for achieving that article one identified the purposes of this Law which are to prevent and combat the smuggling of migrants; to promote and facilitate national and international cooperation in order to meet these objectives; and to protect the rights of smuggled migrants.
In order to confront irregular migration and its tragic effects, International Organization for Migration (IOM) adopted several mechanisms that aims to improve migrants’ conditions and supporting strategies and policies against the smuggling of migrants as it has negative effects on many countries around the world, through regional and international coordination and cooperation between all relevant authorities and agencies Border security, in order to control border management systems.
2 - Tunisian legislation Approach for irregular migration:
National legislation on irregular migration differ from one country to another depending on objectives, policies adopted, political, social and economic situation of these countries.
In this sense, the main purpose of irregular migration law-making for North Africa Maghreb countries was to confront it, criminalize it and penalize who ever commits it or associates in committing it, a clear example of that is Tunisian legislation, specifically Act No. 2004-6 of 3 February 2004 that amends and supplements Law No. 75-40 of 14 May 1975 concerning passports and travel documents, this act stated many penalties that relates to migration and range from a 3-year prison sentence to a 20-year prison sentence without paying adequate attention to the rights or protection of migrants and excluding approaches that adopts theories of “the victim migrant” and adopting instead approaches that are mainly based on deterrence and punishment which are the legal mechanisms that are in line with procedures taken by some European countries, specially, Italy which is one of the countries of reception for Tunisian migrants as the and the most affected European country by this phenomenon, where its southern coasts have become a destination for huge numbers of illegal migrants, all that led Italy to issue a migration law in 1998, which introduced for the first time a legal system for irregular migration that controls entry procedures for the Italian territory and manages renewal of residence permits procedures for foreigners. The law adopted four mechanisms: re-programming migration policies, foreigners’ entry to Italy and the means of residence therein, reorganizing procedures for granting residence, the activation of t forcible refoulement for irregular migrants and establishing detention and accommodation centers for migrants. The law determines the legal limit for detention of migrants by 30 days, after which their fate is determined in several ways, either to work in Italy or to be deported to their countries of origin, or to be tried if they have committed acts punishable by law while they were in Italy.
Despite the negative nature of these measures, they were insufficient to deter this dangerous phenomenon that threatens Italy, especially after the great increase of migrants numbers over time, that paved the way for issuing another migration law in 2002 known as “Law No. 189 or the law of Bossi Fini,” this law included procedures that penalize with imprisonment and expulsion , for example article 13 stated that “a foreigner who was ordered to be expelled but remains on the territory of the state shall be arrested, tried and imprisoned from one to four years”.
Not only did this law included penal sanctions but also regulated procedures for expelling irregular migrants and escorting them to borders as a way of helping migrants, they should also assist him when needed through helping him obtain travel documents and carrying out investigations, and in case of absence of any appropriate means of transport to escort him/her to his country of origin’s borders, authorities shall detain him at temporary accommodation centers from 30 days to 60 days, and at the end of this extended period stated in chapter 14 of the law and if the deportation decision can not be carried out another final decision that states penal consequences for violating it shall be issued to deport the migrant within five days, In addition, Italian law stated a new penalty for migrant who reside without a residence permit regardless of whether their entry was legal or not, as the law considers them to be in an illegal situation to be subject to deportation.
Tunisian legislation was not free from fears related to irregular migration, but the issue was considered to be one of the most significant national challenges that needs to be confronted specially through criminalization and imposing various penal sanctions that varies according to the nature of the crime committed, in fact, it is not different from legislation adopted in several other countries, the most important of which is Egypt, where it adopted the same legislative process and relatively different penal sanctions and stipulated 21 penalties for crimes related to irregular migration. The law included in the second chapter “Crimes and Penalties “It included clear definitions for crimes and determined punishments, as article 5 of this Act, states that “ The penalty of imprisonment shall befall each person establishing, organizing, or managing an organized criminal group for the purposes of smuggling migrants, or assuming any leading role in such groups, or being a member of such groups or associated thereto” in addition it the law also stated that “ The penalty of imprisonment and a fine of no less than fifty thousand pounds and no more two hundred thousand pounds, or a fine equivalent to the achieved profits, whichever is greater, shall befall each person who commits, attempts or mediates in the crime of smuggling migrants. The penalty of aggravated imprisonment and a fine between two hundred thousand pounds and five hundred thousand pounds or a fine equal to the value of the achieved profit, whichever is greater, shall apply in the following cases, If the criminal established, organized, or managed an organized criminal group for the purposes of smuggling migrants, or assumed command therein, or was a member thereof or joined it, If the offence had a transnational character, If the offence was committed by several criminals or by a person carrying a weapon, If the criminal was a public official or assigned to a public service and committed the offence by abusing his position or the public service, If the offence might threaten the life of the smuggled migrants or compromise their well-being or is considered inhumane or degrading treatment, If the smuggled migrant was a woman, a child, an incompetent person or a person with a disability, If a forged travel or identity document was used to commit the offence, or if a travel or identity document was used by someone other than its legal holder, If a vessel was used to commit the offence in violation of its proper purpose or its defined routes”
the Law on Passports and Travel Documents of 2004 stated in Chapter 38 that “whoever plots, facilitates, assists, mediates or arranges by any means, even if it is free of charge, the entry of a person to Tunisian territory or his departure by stealth whether by land, sea or air, through crossing points shall be imprisoned three years and fined 8,000 dinars and even conspiracy and attempts are due to punishments ”
Unlike the Egyptian legislator, the Tunisian legislator was more in favor of using harsh punitive penalties for irregular migrants, ranging from 4 to 20 years as the Law on Passports and Travel Documents of 2004 stated in Chapter 38 that “whoever plots, facilitates, assists, mediates or arranges by any means, even if it is free of charge, the entry of a person to Tunisian territory or his departure by stealth whether by land, sea or air, through crossing points shall be imprisoned three years and fined 8,000 dinars and even conspiracy and attempts are due to punishments” penalties also included those who host migrants as the law stated that “whoever hosts migrants that enter to or depart from Tunisian territory by stealth or hosts perpetrators who committed crimes that was previously stated in that chapter, prepare a place as a shelter for them, hide them or work to ensure their escape, lack of detection or non-punishment shall be imprisoned four years and fined 10,000 dinars and whoever provides any means of transport of any kind for the purpose of committing the crimes set forth in this section or to assist in committing them, shall be punished with the same punishment “
It should be said also, that the Tunisian legislator treated smugglers of migrants who assist any person to enter Tunisian territory equally to those who assist in their departure outside Tunisia as both are punished by five years imprisonment and a fine of 12,000 dinars for their deliberate transfer of a person or persons inside or outside Tunisian territory by stealth whatever was the means they used to achieve that .
Not only did the Tunisian legislator penalize migrants and those who are responsible for hosting and sheltering them, but also penalized those who “participated in an agreement or established an organization that aims to prepare, manage, cooperate with or assist in any way whether it is inside or outside the country, and agreements and organizing are obtained between two or more persons through consent and intending to commit the aforementioned actions previous chapters”.
The legislator also emphasized penalties for a certain category provided for in the Chapter 43 of the Passports and Travel Documents Act where the punishment shall be by imprisonment for a period of twelve years and a fine of forty thousand dinars if the aforementioned crimes are committed: “By those who have been entrusted with guarding or controlling borders or crossing points or ports, directly or indirectly, or who monitor them, and Internal Security Forces or members of the military forces or agents who have taken advantage of power given to them of his or her job or work against a child or abusing him/her.
Despite the importance of these sanctions in deterring migrants from migrating illegal to escape the social, political or economic conditions in which their countries live, they do not fully deter migrants and are ineffective and unable to confront this phenomenon due to penal sanctions adopted by the countries of origin and security policies adopted by the host countries which only aggravate the situation. The current situation has shown the need to establish long-term international strategies to confront migration and to provide the necessary guarantees for the rights of migrants, who are often considered victims of a particular political or social situation.
Finally, we must note that international organizations, despite their numerous attempts to find ways of framing the phenomenon, have been unable to give a clear unified definition for migration, or to give accurate statistics on the number of migrants or a clear criteria to determine the effectiveness of measures taken by receiving countries in facing irregular migration and the absence of ways to reduce this phenomenon.
Confronting irregular migration and achieving efficiency in dealing with its effects requires continuous cooperation between the receiving countries, which are mostly the countries of the North, and the countries of the South that export irregular migration.
This cooperation should address the causes and motives related to the phenomenon of irregular migration objectively, the most important of which are economic motives and political crises which most Arab countries are experiencing today.
Has the irregular migration phenomenon aggravated following the changes in the Arab region?
Irregular migration is not a new phenomenon, in other words It existed before the developments that had taken place in the region between 2010 – 2011, the latent motives behind it already existed before the revolution, but the post-revolution period may have provided objective circumstances and security conditions that paved the way for large waves of migration in the region.
As for Tunisia, these waves have already existed since 2000, But the ruling political system was naturally used to obscure information, especially that at this time the system was bragging about its economic successes, but these successes were impugned by the social crisis which is one of its reflections is irregular migration, therefore, the motives for this phenomenon existed before the revolution but it was further deepened by the security, economic and social conditions resulting from the situation after the Arab uprisings, as the economic trajectories didn’t significantly change and the revolution has produced new economic and social pressures.
After 2011, the speech in Tunisia focused on the young generation and their problems, but the youth were fully aware that the economic change will be delayed, which led to a big migration wave between 2011 and 2012 where more than 35,000 Tunisians arrived to the Italian coast. The Ministry of Foreign Affairs recognizes only 22,000, but we estimate that the real number is much higher, as official numbers are usually based on migrants who arrive to Italian coasts through official Italian or international authorities, but we know that many Tunisians succeed in reaching Italy without passing through these official gates.
We made a study in 2016 about the desire of young Tunisians to emigrate, and the ratio of young Tunisians that wanted to migrate was around 35% before the revolution, During the revolution between 2011 and 2012 the number was reduced to 31%, This period was characterized by freedom especially freedom of expression, the right to assemble and freedom of association, and the political speech focused on responding to the youth’s demands, all that was considered an opportunity for better future, but in contrast there is another part of the youth was seeing that the transition will be delayed.
What are the most important characteristics of social categories that resort to irregular migration?
The irregular migrant characteristics has gradually developed. Today, we find among irregular immigrants those who are unemployed and have high degrees or those who are in a vulnerable employment position. There is also a small percentage of women, that wasn’t the case before, but it changed after the revolution, this percentage is between 3 and 5%, and it is possible to have families as irregular migration became a family project.
There is a social class that has maintained its existence among migrants, It is the category of unemployed and marginalized folks and there is a new category that joined them lately those who are highly educated. In some situations, we find families as well as some who has a vulnerable employment position and work but their job does not achieve their aspirations.
This is what represents a change in irregular migrants’ characteristics.
These social protests and the change in the factors driving migration after the revolution have an indirect relationship to irregular migration, There were very pressing social demands, which led to the intensification of the protests in Tunisia. Since 2014 and Tunisia witnesses many protests, according to the Tunisian Forum for Economic and Social Rights, between 4900 to 10,000 social protest in 2010 occurred, These protests have an indirect relationship to the issue of irregular migration as successive governments did not handle or respond positively to the demands of protesters after the revolution and it establish any channels of dialogue or communicate with them, despite the fact that the right to work was not the only requirement there were many others, Such as the right to health, the right to education, the right to local and regional development and the right to water and sanitation but the role of the State had a setback in several aspects leading to give a greater motivation for those who want to migrate.
The state dealt with social protests as a matter of security. Protesters were subjected to repression, prosecutions and referral to courts, especially in interior affairs, which led to irregular migration.
There is another phenomenon became widely spread after the revolution, the phenomenon of school dropout, No body was talking about it until official reports were issued in 2013 there were 100,00 drop outs annually, no body know what is their fate.
The Tunisian Forum examined the phenomenon of school dropout in 2014, according to the study, more than half of the dropouts are attracted by networks of irregular migration in addition to similar trade networks, smuggling and even radical groups.
Each year, there are around 100,000 are added to numbers of unemployed, Ministry of Vocational Training and Employment employs about 27,000 people, this is its full capacity and it can’t take on any more , so around 70,000 are left for these phenomena. One of the important factors also is the general political climate and the state of frustration in the country, as the political speech is limiting the concept of democratic transition to elections only and marginalized economic and social aspects despite their importance, we have been participating since the end of 2015 in a path that got along with the International Monetary Fund and forced the government to take several measures especially freezing hiring in public office for youth and other actions that contributed to further gestation and persistence of the crises., There has also been a loss of confidence among young people in civil and political activities. We have conducted a study showing that only between 2 and 3% of young people have civil or political activity, and even those who engage in civil and political activities are marginalized as they only play logistic and tactical roles, therefore, it appears to be a process of systematic exclusion of young people from civil and political life.
The role of the state in social services has also a major setback as there are problems in basic sectors in Tunisia in health, education and transport, in everything related to Tunisians’ life, in addition to the security concern associated with violence and crime not only terrorism but even in working-class neighborhoods, In addition to all that, the image of the state has not changed it still represents the repressive system and there are still clashes between youth and security officers at police stations and security centers in these areas, the repressive image of the state still exists.
The revolution was based upon socio-economic disparities between a lucky part of the nation and an unlucky part , and these differences have their reflections even within the regions that we consider fortunate, as the working-class neighborhoods and poverty belts surrounding large cities and coastal cities complain of the same marginalization and disparities that the interior regions complain about.
Economic and social policies have not changed for 8 years, and the official ratios of poverty and unemployment rates and the regional development index show that public services have fallen. Therefore, those who work in small jobs are considered to be vulnerable and in a situation of insecurity and instability and their small jobs usually become a source of funding for irregular migration in an attempt to change their reality. This is also what we see in organized migration, we see thousands of doctors, lawyers, academics and engineers choosing to migrate despite the possibility of living with their salary. It is not only about material and economic matters, but about insecurity and mistrust in the future.
Has the tightening of migration policies in Europe contributed to the growing phenomenon of irregular migration?
After the rise of anti-immigrant political speech and the rise of US President Donald Trump to power in the United States, right-wing anti-immigrant policies have become more aggressive, these policies have reached its peak stages, that was clear in dealing with the crisis of migrants in Greece and Turkey, especially policies related to Syrian migrants. In the Mediterranean, These policies was applied by harassing humanitarian rescue vessels which plays an important role in rescuing migrants and giving them humanitarian aid as well as changing the image known about the Mediterranean Sea as the largest graveyard in the world.
Harassments to organizations working in the Mediterranean was made so they would give up and withdraw, they even criminalize activists’ acts to curtail their work, There are numerous on-going prosecutions against many of them, especially in Italy. The result is that these organizations withdrew from humanitarian work.
These policies coincided with other Libyan policies as the European governments made a series of agreements with Libyan militias to close the migration route through Libya.
These militias used to consider irregular migration to be their source of funding until another party have come and have given them greater funding with other undeclared agreements in order to close that route. Restrictions on migration by sea have increased after the withdrawal of humanitarian organizations five times according to the International Organization for Migration.
The European option is clear and it has not changed, and it is the closure of the borders, but the European consider that their borders start from the coast of Tunisia and the Libyan coasts.
The European Union did not succeed in imposing landing platforms in North Africa, but they tried to develop this idea so they made a receipt and accommodation center in Libya, and forced Tunisia to cooperate in border control, Four-wheel drive vehicles were given by Italy to monitor the border. They seek to leave all the problems for transit or host States to bear alone.
The EU also calls on Tunisia to cooperate on the issue of the deporting migrants. In 2017 there are 2,000 Tunisians deported from Italy and forcibly returned to Tunisia without guaranteeing their human rights. Without any social, psychological or economic care, those folks would be an easy target for any group.
What are the possible measures that should regulate the phenomenon of migration, which is considered a humanitarian phenomenon?
Migration won’t stop, it is represents a human right which is the right to freedom of movement, but irregular migration cannot be viewed as a humanitarian crisis only. It is a political crisis, a crisis of international policy and national policy that accomplices with it, therefore, any approach to remedy the situation and combat irregular migration should be comprehensive.
Although the humanitarian and human rights approach is Important but it is not sufficient to deal with irregular migration, it must coincide with a political and developmental approach.
Dr. Amheidi Mohammed Amheidi
Chief judge of Ajdabiya’s Primary Court
Introduction
Irregular migration is one of the most serious phenomena experienced by both developed and developing countries, because they are linked to many political, economic and social aspects. Bad political and economic conditions push individuals to migrate from developing to developed countries, many countries find a threat in these migrations to their economic, social, political and security interests.
Because of the southern Mediterranean countries geographical proximity to Europe, they are targeted by secret immigration networks either through the migration of citizens of sub-Saharan countries or helping citizens to migrate to other countries, so they became a passage and a destination for many irregular migrants.
Libya, like other southern Mediterranean countries, has experienced unprecedented growth in irregular migration during the last two decades. The number of migrants who arrived in Italy via Libyan shores during the period from 1 January 2016 to 22 October 2016 is (168,542), it is known that (4,164 ) died at sea. Libya’s vast borders and fragile authority have made it both a transit and a destination country, threatening stability and social peace at the national and regional levels.
As a response the Libyan legislator has taken several legal measures through criminalization and punishing who ever commits a related crime, he issued Law No. (6) of 1987 on regulation of entry and residence for foreigners in Libya and their departure from them, and Law No. (19) of 2010 on combating illegal migration.
The issue that this paper discusses is how the Libyan legislator dealt with the phenomenon of irregular migration, and what means and measures he adopted to limit, block and punish the perpetrators? What are the limits of and restraints the judicial system to combat this phenomenon?
We will try to answer this problem through three paragraphs. First, I will examine the legislative mechanisms to combat irregular migration, the second is the executive mechanisms to combat irregular migration, while the third is the limits and restraints of judicial systems to combat this phenomenon.
First paragraph
Legislative mechanisms to combat irregular migration
Since the Penal Code does not contain provisions dealing with the phenomenon of irregular migration, and in view of the growing nature of this phenomenon, the legislator had to intervene to overcome these shortcomings in order to confront this serious phenomenon. Law No. 6 of 1987 regulating the entry, residence and departure for foreigners in Libya, which replaced Law No. (17) for the year 1962 (first), followed by Law No. (19) of 2010 on Combating Illegal migration.
First: Law No. (6) of 1987 regarding the regulation of entry, residence and departure for foreigners in Libya:
This law determined the required conditions for entry, residence and movement of foreigners in Libya as the law regulated their entry and residence if they have a passport, travel document and valid entry, transit or residence permit.
On the other hand , this law criminalizes entering and staying in Libya irregularly ,however, this law does not distinguish between migrants, refugees, asylum seekers, victims of human trafficking, vulnerable categories of migrants, child migrants, or others migrants who are in need of international protection of their human rights.
Law No. (6) for the year 1987 was amended by Law No. 2 of 2004 to tighten conditions for granting of entry visas. The amendment stipulated that all persons who are not citizens except for some Arab countries must obtain a valid visa to enter the country. It also aggravated sentences and for the first time, the term smuggling of migrants was introduced and the offense of smuggling of migrants was punishable by a minimum of one year’s imprisonment and a fine of not less than 1,000 dinars. Law No. 6 also regulates the deportation of non-citizens to their countries.
This law criminalized entry and exit from Libyan lands from places other than the designated without a passport or a travel document, and decided to punish them by detaining them for a period not exceeding three months and paying a fine that does not exceed one hundred dinars or one of these penalties.
Second: Law No. (19) of 2010 on Combating Illegal migration:
It should be noted that Law No. (6) of 1987 regulating entry, residence and departure for foreigners in Libya is a supplement to Law No. (19) of 2010 on combating illegal migration in case there is no contradiction between both.
The Libyan legislator issued Law No. (19) of 2010 on Combating Illegal migration to criminalize and combat irregular migration, it was the first independent legislative action to deal with this dangerous phenomenon.
1- The legislator cited several provisions to criminalize irregular migration and related acts as well as the penalties prescribed in cases of such offenses, as follows:
2- The crime of entering Libyan territory, residing there without permission, or a permit from the competent authorities for the purpose of settling there, or crossing borders to another country: Article 1 of this law provides the status of illegal migrants to anyone who enters Libya, without permission, or a declaration from the competent authorities to settle in, or to transit to another State. And the penalty for that crime is imprisonment, or a fine not exceeding one thousand dinars (m 1 and 6).
3- The crime of introducing, removing, transporting, facilitating the transfer, harboring or hiding illegal migrants into the country, concealing any information about them, preparing, providing or possessing false travel documents to them: The Libyan legislator tried to tighten the penalties for those acts with imprisonment for a period not exceeding one year and a fine of not less than five thousand dinars and not more than ten thousand dinars (4/1).
4- The crime of belonging to an organization for smuggling migrants: its penalty is imprisonment for a term not less than five years and a fine not less than fifteen thousand dinars and not more than thirty thousand dinars.
5- The crime of employing illegal migrants: Article (3) of the law punishes anyone who employs an illegal migrant with a fine of not less than one thousand dinars and not more than three thousand dinars. The penalty shall be doubled if the offender is entrusted with guarding, supervising, or controlling the ports, crossing points, or boundaries, or monitoring them (A4 / 2). The penalty shall be imprisonment and a fine of not less than twenty thousand dinars and not more than fifty thousand dinars, if the result of the transfer of illegal immigrants to the inside or abroad is permanent disability, and the penalty shall be life imprisonment if the act results in death.
6- The crime of not reporting illegal migration offenses: A penalty of not less than one year and a fine of not less than one thousand dinars and not more than five thousand dinar to any person who deliberately refrains from taking legal action in the offenses stipulated in the law against illegal migration as soon as he is informed about it or is informed of it by virtue of his job. If the act is committed as a result of negligence, the penalty is a fine of not less than five hundred dinars and not more than five thousand dinars (m 7).
7- Forfeiture: The court shall confiscate the amounts collected from the crime. It shall also confiscate objects, means of transport, or tools used or intended for use in committing illegal migration offenses, unless signs of good gestures third parties is proved.
8- Exemption from Punishment: The law exempts anyone who has informed the competent authorities of information that enables to know about the crime prior to its execution, or led to the reduction of its effects, the detection of the perpetrators or their arrest (p. 8).
9- Expulsion: According to article 6 of the law, a foreigner sentenced to one of the crimes stipulated in the law of illegal migration must be deported from the territory of Libya once he has executed the sentence. Although the Libyan legislature has omitted the status of some special cases of illegal migrants who prove that they cannot return home for fear of their lives. Moreover, the Libyan legislator in the law against illegal immigration did not guarantee the deportee the right to challenge the decision to deport, contrary to the Algerian legislator who authorized the appeal to the Minister of Interior’s decision to deport from Algerian territory by a case brought before the Administrative Court in (5) days from the date of notification of this decision. In this case, due to the sensitivity of the procedure and its gravity, the emergency judge should adjudicate the case no later than (20) days from the date of the case’s registration.
10- Legal guarantees for Illegal migrants: The law provides that migrants should be treated in a humane manner that preserves their dignity and rights and does not abuse their money and property at the time of their arrest (Article 10) However, reports of human rights organizations indicate that there are many violations of migrants’ rights In detention centers in Libya, such as arbitrary and inhuman conditions of detention, torture, forced labor, sexual violence and ill-treatment.
It should be noted that Libya has ratified a number of complementary conventions and protocols in the area of combating organized crime and smuggling of migrants, as follows:
a- United Nations Convention for the Suppression of Transnational Organized Crime New York 15 November 2000: Adopted by the United Nations General Assembly Resolution No. 25 at the 55th session on 15 November 2000, signed by Libya on 13 November 2001 and ratified on 18 June 2004.
b- Protocol against the Smuggling of Migrants by Sea, Land and Air supplementing the Convention on the Suppression of Transnational Organized Crime – New York 15 November 2000: Adopted by General Assembly resolution 25, 55th session. It was signed by Libya on 13 November 2001 and ratified on 24 September 2004.
c- Human trafficking: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, New York 15 November 2000: Adopted by General Assembly resolution 25, 55th Session. Signed by Libya on 13/11/2001 and ratified on 24/9/2004
Criminal responsibility of migrants:
According to article 5 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, migrants are not subject to criminal prosecution, as they are a target for the conduct stipulated in article 6 of this Protocol.
But the Libyan legislator has recognized the criminal responsibility of the illegal migrants. Article (6) of the law on combating Illegal migration provides for imprisonment, and a fine of not more than 1000 dinars and expulsion from Libyan territory. Which led some to call for amending the law in line with Article 5 of the Protocol against the Smuggling of Migrants.
Although the Supreme Court has confirmed on the occasion of its ruling in Constitutional Appeal No. 1/57 on its meeting held on 23/12/2013, that the international conventions to which the Libyan state is linked shall be effective immediately upon completion of ratification procedures by the legislative authority of the State. It is even more powerful than domestic legislation that if there were any contradiction between both, the international convention’s rule shall be applied, without the need to amend any domestic legislation that might contradict with them.
It appears that many misdemeanors and infractions circuits at Subordinate Courts did not apply the rule mentioned in the law that criminalize and penalize irregular migrants in Law No. (19) of 2010, by neglecting it for being in contradiction with Article 5 of the Protocol against the Smuggling of Migrants Of the United Nations Convention against Transnational Organized Crime, which exempts migrants from prosecution as they are considered victims and not criminals.
Second paragraph
Regulatory mechanisms to combat irregular migration
The Ministry of the Interior (formerly the Secretariat of the People’s Committee for Public Security), as set forth in Law No. (19) of 2010, is responsible for arresting irregular migration offenders, seizing the funds gained from the crime and means of transport used in smuggling, and transferring arrested criminals to judicial authorities. And monitoring borders through several agencies, departments and central departments that are headed by the Immigration Control Authority and the Passport and Nationality Authority, which review their duties as follows:
First: The Anti-Illegal Immigration Authority:
The Anti-Illegal Immigration Authority was established by Council of Ministers Decision No. 386 on 4 June 2014. Its headquarters is located in Tripoli and has several branches in the rest regions of the country. It is affiliated by Ministry of the Interior, but has legal personality, independent financial autonomy and its own executive power.
Second: Passports and Nationality Department:
The Department of Passports and Nationality was established in 1951 after Libya’s independence, it passed through several stages of change and development, most recently in 2008 when the General Administration of Passports became the Passport and Nationality Authority pursuant to the Council of Ministers Decision No. 314 of 2008, headquartered in Tripoli. It enjoys its own legal personality and has an independent financial autonomy in all Libyan cities. The Department undertakes the following tasks:
1- Issuing and granting passports and national cards and organizing access to them.
2- Control the movement of entry and exit to Libya through the approved ports.
3- Issuing approvals for granting visas for entry and passage to foreigners through consulates.
The department follows several departments that have a direct relationship with the fight against irregular migration, mainly the Department of Passport Investigates, conducts research, and arresting violators of the laws governing entry, exit and residence in Libyan territory, administrating ports that examine passports within official borders, sea ports and airports, as well as administrating the Office of Foreign Affairs and branches of the Passport Authority deployed in various Libyan cities.
In addition, there are other frameworks concerned with migration, including the Ministry of Labor and Rehabilitation, which oversees enumeration of expatriate workers in various institutions in public and private sectors. The Ministry of Health also grants health certificates, which are a prerequisite for obtaining residence or working in the public sector.
Third paragraph
Libyan judicial system’s limits and restraints in the fight against irregular migration
First we would like to mention that the Libyan legislator, In light of irregular migration serious economic, social, political and security implications, he sought to establish partial courts and prosecution for illegal migration crimes. They were established by the Supreme Judicial Council Decision No. (10) for the year 2006 for establishing courts and prosecutions to combat illegal migration. In its first article, the decision stipulates that within the jurisdiction of each primary court, a partial court shall be established to combat illegal migration, which shall be competent to hear criminal cases relating to the offenses set forth In Law No. (6) of 1987 on the regulation of entry residence and departure for foreigners in Libya, While the second article of the same resolution provides for the establishment of a partial prosecution within the jurisdiction of each court case concerned with investigating criminal cases and crimes in violation of the provisions of Law No. (6) of 1987 which we referred to.
The Supreme Council of Judicial Authorities also issued Decree No. (62) for the year 2010 to establish a specialized court and two subdivisions. Article (3) of this decree stipulates that “a partial court shall be established within the jurisdiction of North Tripoli primary court, called the Anti-Illegal Immigration Court, which shall be competent to adjudicate the cases of misdemeanors stipulated in Law No. (19) of 2010 related to illegal migration, within the limits of jurisdiction of Suwani courts and the north, south and east of Tripoli Primary court», while Article 4 of the same decision stipulated that a partial prosecution section is to be established to combat illegal migration within the jurisdiction of the court referred to prosecute criminals, file cases and investigate the crimes stipulated J Law No. (19) for the year 2010.
However, these specialized courts was not activated up till now and we do not know what the reasons behind that non-activation. However irregular migration jurisdiction remains a difficult question. According to Article 4 of the Libyan Penal Code, which stipulates that “the provisions of this law shall apply to any Libyan or foreigner who commits in Libyan territory, one of the offenses set forth therein “. This principle means that the Penal Code applies to any crime within the national territory regardless of the nationality of the perpetrator or the victim, the same concept can be found in article 5 which stipulates that anyone who commits outside the country an offense that would make him a perpetrator or a partner of a crime that has taken place completely or partially shall be punished.
However, this principle loses its validity for irregular migration offenses which goes beyond borders and territory, which is likely to conflict with other laws and necessarily entails a conflict of jurisdiction for every incident.
Determining the applicable law in transboundary irregular migration requires applying the universal jurisdiction principle to irregular migration offenses, so that any criminal law applies to any crime against the perpetrator in the territory of the State wherever it is committed and whatever the nationality of the perpetrator or the offender was . so any state that could arrest them would be able to hold them accountable for their acts according to its national law and punish them.
However, applying the universal jurisdiction principle in absolute terms, by applying the penal code to any criminal arrested in the territory of the State, whatever the State in which the criminal offense was committed and whatever the nationality of the offender was may lead to another contradiction between states’ laws, where every state would have jurisdiction even if we should apply another law to the case , and this contradicts with the principles of the Penal Code itself, which is essentially a territorial law. This makes applying this principle difficult in practice, so it is more appropriate to restrict the principle to be applied to certain types of offenses, including some transboundary irregular migration offenses, so we could gather the needed efforts to fight against this type of criminality by every mean whether legislative, judicial or executive.
Recommendations
1- To strengthen international and regional cooperation in the fight against irregular migration and urge all countries to accede to international conventions related to the subject.
2- Security coordination and cooperation between Libya and neighboring countries in the field of combating irregular migration is a must.
3- To amend national legislation to be in conformity with related international conventions and to aggravate punishments to smuggling migrants crime in light of the seriousness of the consequences of that crime.
4- To activate illegal migration courts and tribunals, and to increase the efficiency of judicial officers, members of the public prosecution and judges concerned with the implementation of law against illegal immigration, all in their fields of expertise.
5- To activate regional and bilateral agreements between Libya and neighboring countries in the field of combating organized crime, especially the agreements concluded with Italy and the Arab Maghreb countries, related to the exchange of expertise, information and control of common borders.
6- In order to alleviate the problem of jurisdiction, and in view of the serious consequences of irregular migration and smuggling of migrants, there is a need to develop or establish international tribunals to combat irregular migration, in the light International Criminal Court‘s experience and within its the jurisdiction.
Do you think that the phenomenon of irregular migration has aggravated after the changes in the Arab region?
Although irregular migration existed even before the changes witnessed in the Arab region, especially Libya, but the change is in ratios, and the issue is to types of violations that are taking forms and patterns which are very disturbing.
Can the migration procedures in the European Union be linked to the increase in irregular migration?
Despite the European Union’s harsh policies, which have completely undermined all the values and conventions ratified by Europe and despite Europe’s claim that the number of migrants arriving on Italy’s shores has decreased but how many are entering Libya and how many are travelling through the sea and getting lost? That is the important question?
What are the social characteristics for the most involved categories in irregular migration?
The number of minors and unaccompanied children is high, and it is also surprising that the number of women is increasing.
Can it that be considered irregular migration happens primarily due to economic reasons?
We can’t be sure about that, if we talk about the numbers of migrants entering Libya, for example, many of them are seeking protection such as the Syrians, Yemen, Somalia and Eritrea, all of them fleeing conflicts out fear of reprisals. Currently, the majority of those who are in detention centers in Libya are asylum seekers.
What are the most important effects and consequences of irregular migration?
Countries of origin, transit and reception are affected but the most serious impact falls upon countries of origin, as it gets emptied of its citizens in large frightening batches, especially that among migrants there are children and women who are exposed to horrifying things during their journeys. I think that the world is dealing horribly with the issue of migration and they focus on impacts on countries of transit and destination , saying that migrants and asylum-seekers are the main cause for instability and chaos in the receiving countries.
Are the effects of irregular migration limited to migrants or does it extend to their families and relatives? What is the nature of these effects?
There is no doubt that all those who are around migrants and asylum seekers are directly affected in all psychological, social and economic aspects. The loss of their children and their families to the fate of the unknown desert is terrifying, and the majority of migrants and asylum seekers are abducted and blackmailed in exchange for payments to release their children.
Some consider that irregular migration is no longer a limited phenomenon and turned into a community tradition in Tunisia, for example, is this true?
This not true and contradicts with reality, migration has its own reasons even the ones that the youth seek and being called reckless and looking for a European mirage for dreaming about it, it is an attempt to find justifications and excuses for the failure of those governments. All migrations, even those of economic motives, the Arab youth sought it only after they exhausted themselves and tried everything to live. but they even accepted living below the poverty line, but they were deprived of this life too, but severe economic conditions, security constraints, not to mention sensing the vast difference between them and the neighboring countries, for example, the Gulf States, all that pushed them to migration.
Given the changes that have taken place in the region after the revolution, can irregular migration become a gateway for terrorists arriving in Europe?
For many years migration existed and will continue to exist, and its normal to find between migrants various types of people, asylum seekers, smugglers, and criminals “terrorists”, It has not been proven that extremist groups have moved as associations across the sea or even in the desert in large numbers so we can say that they would take it as route to Europe, Extremism exists in Europe from several parties and most of the operations that took place in Europe was made by holders of European passports who are born in Europe.
In your opinion, who is responsible for that or what is the order of taking responsibility?
The international community and decision-makers should take responsibility for that, the solution is not impossible, encouraging development in countries of origin and reducing external interference and promoting conflicts in their countries will have a significant impact on reducing migration, or at least it will be more organized and secure for children and women.
Can the growing phenomenon of regular migration be seen as an indicator of governments’ failure to respond to the demands and achieve the dreams of their citizens?
There is no doubt in that .. Governments and decision-makers are the cause of this disaster, which destroys young people and unfortunately they are oppressed by adults and retirees who compete them on jobs.
What are the necessary measures to combat this phenomenon on Human rights level and on the legal level?
a- To continue to ask the authorities and decision-makers to abide by international conventions and treaties they have ratified and signed.
b- To put pressure on countries that have not ratified such as Libya to ratify and implement agreements governing the status of asylum seekers.
c- There should be a new UN treaty and agreement that would make the UN Charter a reference to establish a criteria and an urgent plan to resolve the issue of asylum seekers and protect them and to assume responsibility for all States in this matter.
d- International organizations and donors from the European Union should give their support to small projects and development for youth and minors in Africa and conflict countries.
I think the agreement of refugees in Gevena what is say about refugees
All world throw out the agreement this fact how about the agreement of human rights
Why the world close your eyes of fact