(Immigration and Asylum Chamber) ZMM (Article 15(c)) Libya CG  UKUT 00263 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
On: 3rd May 2017
On: 28th June 2017
Before THE HON. MR JUSTICE McCLOSKEY
UPPER TRIBUNAL JUDGE BRUCE Between ZMM
(ANONYMITY ORDER MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Representation: For the Appellant: Mr A. Pipe, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr S. Singh, Counsel instructed by the Government Legal Department
The violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.
DETERMINATION AND REASONS
Table of Contents
The Country Guidance Questions
The Legal Framework
The Political Background
The Humanitarian Situation
Indiscriminate Violence in a Situation of Internal Armed Conflict
Discussion and Findings
Error of Law Decision
List of materials considered by Tribunal
On the 14th July 2014 the Upper Tribunal promulgated the decision in AT & Others (Article 15c; risk categories) Libya CG  UKUT 00318 (IAC). That case had been convened in November 2013 to give country guidance on the risks arising in post-Gaddafi Libya. The Tribunal heard from three experts and had regard to a wide range of evidence. The Tribunal found that the power vacuum left by the collapse of the regime had been filled by militias, and that in-fighting amongst them was resulting in some violence. The position at the date of the hearing was not such however, that the Tribunal could be satisfied that there was a real risk of harm to the population at large. There was a government, an army and a police force in place. Although these institutions remained weak, the evidence indicated that they could, in general terms, provide a sufficiency of protection.
On the 15th July 2014 Tripoli airport was forced to close after skirmishes on the perimeter escalated to full scale rocket attacks on the runway. Defending the airport were a militia from the western city of Zintan which had declared allegiance to the man who had taken effective control of the east, General Khalifa Haftar. Attacking the installation were a coalition of Islamists and militiamen from Misrata, fighting under the banner ‘Libya Dawn’. The lines were drawn. The two sides that fought the battle for Tripoli airport continue to define the political landscape in the country today, forming the backbone of rival ‘governments’. Add to this a third entity, the only ‘government’ recognised by the international community, forced to operate from a heavily fortified naval base off the Tripoli coast. The country is now home to many hundreds of militias and heavy fighting has taken place in several cities as these forces compete for economic and political control.
These bare facts illustrate two things. First, the political situation in Libya today is very different from that considered in AT & Others: FA (Libya: art 15(c)) Libya CG  UKUT 00413 (IAC). Second, the security situation moves fast, and in an unpredictable way. These matters are at the forefront of our minds as we endeavour to give country guidance on the following issues:
Is the Appellant at risk under Article 15(c) if returned to Libya?
If Article 15(c) does apply, can the Appellant relocate to, and reasonably be expected to stay in, another part of the country in which he would not face such a risk?
It will be observed that our enquiry is confined to whether ZMM, and other Libyans in the UK, should be granted humanitarian protection. We do not intend to give guidance on claims falling within the rubric of the Refugee Convention. Decision-makers should continue to refer to the guidance given in AT & Others in respect of individual risk categories, whilst of course having regard to any up to date evidence relied upon in the individual case before them.
This appeal has been selected as country guidance because ZMM could fairly be described, with no disrespect intended, as ordinary and unremarkable. He is male, he is healthy, he speaks Arabic and he was originally from Tripoli. He does not have a family for whom he is responsible, and as far as we are aware has no particular vulnerabilities. He has been in the United Kingdom since 2014.
The hearing took place over a single morning, when we had an opportunity to hear very helpful and informative evidence from Ms Alison Pargeter, an analyst specialising in political and security issues in North Africa. Ms Pargeter is a Senior Research Associate at the Royal United Services Institute and a Senior Visiting Fellow at Kings College London. The Respondent does not challenge her expertise, and accepts that her evidence is helpful in setting out the current situation in Libya. Preparation of this judgment was subject to a short delay whilst the parties answered some additional questions in writing.
There are, we are told, as many as 14 different spellings in English of the name ‘Gaddafi’. This gives some indication of the complexities faced by Arabists attempting accurate transliteration. We have tried to use standard forms of names throughout this determination; our apologies to experts if our choices result in inconsistency. We use the following abbreviations throughout the determination:
DBB Defend Benghazi Brigades
ERW Explosive Remnant of War
GNA Government of National Accord (the internationally
recognised government based in Abu Sitta naval base, Tripoli)
GNC General National Congress (the interim government
formed after the overthrow of Gaddafi, now defunct)
HOR House of Representatives (‘Tobruk government’, based in
Tobruk and al-Bayda)
IDP Internally Displaced Person
IS Islamic State
LPA Libyan Political Agreement (signed in December 2015, the current framework for talks)
NSG National Salvation Government (alternative government
based in Tripoli)
OCHA UN Office for the Coordination of Humanitarian Affairs
PC Presidency Council (executive branch of the GNA)
SCBR Shura Council of Benghazi Revolutionaries
UNSMIL United Nations Support Mission in Libya
The Legal Framework
Article 2 (e) of the Qualification Directive defines persons who are eligible for subsidiary protection:
“(e) ‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;”
‘Serious Harm’ is defined at Article 15, the relevant sub-section for the purpose of this appeal being (c):
Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
There are therefore three limbs to this test. In the context of this appeal the Appellant must demonstrate that there is in Libya:
an internal armed conflict;
indiscriminate violence; and
that as a result there is a serious and individual threat to his life or person.
In Diakité v Commissaire general aux refugies  WLR(D) 37 the CJEU dispensed with the need to conduct a detailed legal analysis of the conflict itself [at 35]:
“[…] on a proper construction of Article 15(c) of Directive 2004/83, […] an internal armed conflict exists, for the purposes of applying that provision, if a State's armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as 'armed conflict not of an international character' under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.”
Thus the words ‘internal armed conflict’ do not attract a sophisticated, complex construction. Rather they are to be given their ordinary and natural meaning. This was a rejection of the international humanitarian law paradigm postulated in, for instance, KH (Article 15(c) Qualification Directive) Iraq CG  UKAIT 00023 (IAC). The war need not involve breaches of international law, nor do the parties need to adopt a formal military identity. It is enough that there are one or more of them confronting each other in the territory: see also paras 14-18 of QD (Iraq) v Secretary of State for the Home Department  EWCA Civ 620.
The violence can be said to be indiscriminate where it could affect people in that country regardless of their circumstances. In HM and others (Article 15(c)) Iraq CG  UKUT 00409 (IAC) the Tribunal held that attacks could be properly regarded as indiscriminate:
“in the sense that, albeit they may have specific or general targets, they inevitably expose the ordinary civilian who happens to be at the scene to what has been described in argument as collateral damage. The means adopted may be bombs, which can affect others besides the target, or shootings, which produce a lesser but nonetheless real risk of collateral damage”
The matter in issue in this appeal is the nexus between the indiscriminate violence and the threat to the individual. In Elgafaji v Straatsscretaris van Justitie  1 WLR 2100 the CJEU found a distinction between the level of harm necessary to establish a case under Article 15(a) and (b) on the one hand, where a real risk of specific harm must be established, and (c), where the applicant fears a “more general risk of harm”:
"43. Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."
The term ‘exceptional’ should be understood in the same way as it is in the context of our domestic jurisprudence relating to Article 8 ECHR: it expresses an expectation of how often these situations will arise, rather than introducing a hurdle to be surmounted. See QD at paragraph 25:
“….The Court did not, as it might have done, decide that "individual" was there simply to exclude persons who enjoyed some form of protection from the violence faced by the population generally. Nor, however, has the judgment introduced an additional test of exceptionality. By using the words "exceptional" and "exceptionally" it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety”.
As to the apparent difficulties with a test that requires there to be a ‘real risk of a threat’, the courts have made two related points.
The first is that whilst the individual does not have to establish that he will suffer specific acts of violence against his person he cannot succeed by claiming a fanciful fear or remote threat: as the Court of Appeal put it in QD: “when Article 15(c) speaks of a threat to a civilian's life or person it is concerned not with fear alone but with a possibility that may become a reality”.
The second point is that the threat itself, if sufficiently serious, can cause serious harm sufficient to reach the required threshold. In HM and others (Article 15(c)) Iraq CG  UKUT 00409 (IAC) (‘HM II’) the Tribunal emphasised that when focusing on civilian deaths and injuries it is necessary to take account of the impact of threats of violence as well as the physical violence itself [at 272]. The feared harm can therefore be physical or mental, but it must be serious. In HM the Tribunal considered that as a benchmark, it would have to be harm serious enough to merit medical treatment [at 45], for instance post-traumatic stress disorder.
The general level of indiscriminate violence necessary for these conditions to be met must be high; but the violence need not be directly inflicted by one of the parties to the conflict. It could for instance result from the breakdown of law and order, but it must be established that there is a causal nexus between the harm and the conflict. Assessment of the feared harm should be an inclusive one, taking account of all relevant metrics. In HM (II) the Tribunal suggested that relevant metrics would include: the number of physically injured, the size of population displacement, the degree of state failure, and the economic/humanitarian situation.
Article 7 of the Qualification Directive defines ‘actors of protection’:
“1. Protection can be provided by:
the State; or
Parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.
2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.
3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts.”
Article 8 of the Qualification Directive is concerned with internal protection:
“1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”
As to whether the Appellant can “reasonably” be expected to stay in a part of the country where he will not face a real risk of harm, the Tribunal must conduct an inclusive and holistic evaluation of all of the relevant factors, including his personal characteristics, the socio-economic and security situation prevailing in the place of proposed residence. Regard must also be had as to how he will get there. In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG  UKUT 00445 (IAC) the Tribunal declined to deem the safety or reasonableness of routes of return a “technical obstacle” and held it to be an inherent part of the risk assessment: “travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from al-Shabab checkpoints but also as a result of the present famine conditions…” [see paragraph 10 of the headnote]. See also AT & Others [83-88]. We note that this approach accords with that taken in the recast Article 8 (2011/95/EC):
“As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she:
(a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or
(b) has access to protection against persecution or serious harm as defined in Article 7,
and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.”
It is arguable that this recast text simply reflects the meaning that the original sought to convey.
There was a great deal of evidence before us, and we have had regard to everything to which we were referred. It has not been necessary or appropriate to discuss all of that evidence in this judgment, since much of it is not in issue. As we note in the introduction, Ms Pargeter’s evidence was in substance unchallenged by the Respondent, albeit that Mr Singh considered that she might have a “possibly over gloomy” outlook on the future for Libya. The remainder of the evidence, to all of which we have had regard, consisted of reports by UN bodies and human rights organisations, articles in the Libyan and international press, and commentary by political analysts.
The key documents before us were:
The report of Alison Pargeter dated 25th March 2017, her response to questions put by the Respondent dated the 7th April 2017 and her short addendum report dated 9th May 2017.
The Home Office Country Policy and Information Notes Libya: Security and Humanitarian Situation published in January 2017 and Libya: Actual or Perceived Supporters of Former President Gaddafi published in March 2017
Monthly UNSMIL reports dated 2016 to 2017
The Amnesty International (AI) response to Ms Pargeter’s report, authored by Mr Tom Southerden and issued by the United Kingdom Section on the 13th April 2017
‘The Challenge of Violent Extremism in North Africa: the Case of Libya’, testimony by Dr Frederic Wehrey of the Carnegie Endowment to the US House Subcommittee on Counterterrorism and Intelligence
‘Internal Displacement in Libya – 2016 in Review’ (Displacement Tracking Matrix Rounds 1-7) published by the International Organisation for Migration (IOM)
‘Libya’s IDP and Returnee Report – January-February 2017 (Displacement Tracking Matrix Round 8) published by the International Organisation for Migration (IOM)
Report of the Secretary-General on the United Nations Support Mission in Libya, 4th April 2017
International Crisis Group, 2017 Watch List, Libya excerpt
The evidence broadly falls into two parts. There is the general background material on the political, economic and humanitarian situation in Libya, which provides the context. Then there is the data, such that it is, on human rights abuses, disorder and indiscriminate violence.
The Political Background
The current situation is summarised by Ms Pargeter as follows:
“1.1 Ever since the revolution that toppled Libyan leader, Colonel Muammar Qadhafi, in 2011, Libya has been mired in deep crisis. The political scene is in complete chaos and there are currently three competing governments, all claiming that they are Libya’s rightful executive power, and none of which has any proper authority on the ground. The security situation is equally catastrophic. There is ongoing violence across the country and real power continues to lie with the array of militias and revolutionary brigades that proliferated during and after the revolution. Indeed, the country has fragmented beyond recognition and comprises a broad array of local power brokers, ranging from militias, tribes, towns and Islamist groups, all of whom are competing for control and dominance.”
Of the three competing governments of which Ms Pargeter speaks, only one is recognised by the international community. This is the ‘Government of National Accord’ (GNA) installed in March 2016 and headed by the ‘Presidency Council’ (PC). The PC had initially comprised nine representatives but splits and factionalism have weakened the council; in Ms Pargeter’s estimation it is now reduced to a functioning body of two men, Prime Minister Fayez Sarraj and his deputy. They are based, as they have been since their arrival in Libya, in a heavily fortified naval base called Abu Sitta. Ms Pargeter stated that the PC has very little legitimacy in the eyes of ordinary Libyans. It is able to exercise ‘control’ only inasmuch as there are certain militias in Tripoli who have pledged allegiance to it. Ms Pargeter describes that allegiance as opportunistic and fragile:
“3.3 …Although these militias, such as the Special Deterrent Force that is led by Islamist commander, Abdelraouf Kara, now consider themselves to be part of the official forces of the state, they continue to act as they see fit. As the GNA Prime Minister, Fayaz Serraj told the media in November 2016, “They [the militias] do as they please as we have sadly seen in Zawia in the last three days and as we saw the militia clashes between Ghainawa or Haitham Tajuri or whoever. Whenever they want to go out and fight, they don’t ask us and we end up firefighting these battles.’’
The alternative government in Tripoli is now known as the ‘National Salvation Government’ (NSG). It was established by those members of the General National Council (GNC) who rejected the Libya Political Agreement (LPA), an accord signed in Skhirat, Morocco in 2015. It is headed by Khalifa Al-Ghweill and consists mainly of hardline Islamist militias who follow the teachings of the Grand Mufti of Libya, described by Ms Pargeter as “ultraorthodox”. The NSG continues to present a serious challenge to the legitimacy of the PC/GNA and has launched a number of attacks against it in recent months. Ms Pargeter reports that in October 2016 the NSG seized a number of ministries and government buildings; in January 2017 it took the Defence, Labour and Martyrs’ Ministries; and in February 2017 there was an assassination attempt against Fayaz Serraj, believed to have been carried out by a militia loyal to the NSG. In the same month a number of Misratan militias loyal to the NSG deployed in the city.
The power in the east of the country lies with Field Marshall Khalifa Haftar (more commonly known as General Haftar) a former soldier in the Gaddafi army who defected during the Chad war. He spent many years in exile in the United States and returned after Gaddafi was deposed to become one of the key players in the current conflict. He is the head of the self-styled Libyan National Army, a military force made up of numerous different militias. General Haftar purports to serve at the behest of the House of Representatives (HOR), the ‘government’ elected in 2014, now based in Tobruk and al-Bayda. General Haftar is described in some of the country background material as “secular”; Ms Pargeter did not consider that to be an accurate label in a deeply religious country. She confirmed that he is not ideologically Islamist in orientation, but stated that this position can fluctuate because of his dependence upon Salafist militias, particularly in Benghazi. Haftar and the House of Representatives are believed to be backed by Egypt, Russia, France and the UAE.
In respect of whether any of these rival authorities is able to act as an Actor of Protection, as defined by Article 7 of the Qualification Directive, the Respondent’s latest Country Policy and Information Note (CPIN) (March 2017) summarises the position:
“2.5.2 The Libyan authorities rely largely on unregulated, armed militias to provide security and law enforcement and the rule of law is largely absent. The internationally recognised government of Libya based near Tripoli is therefore unable to provide a reasonable level of protection to a person who can demonstrate a real risk of persecution or serious harm.”
The same document describes the domestic criminal justice system as “dysfunctional, offering no prospects for accountability” [at 4.3.5]. In their 2016-2017 country report Amnesty International advise that the “judicial system remained in a state of collapse”. Ms Pargeter testified that it is unclear from one day to the next which government, or militia, is in control of which ministry, but that the truth is almost irrelevant, since few if any government departments are functioning effectively. In their April 2017 response to Ms Pargeter’s report Amnesty International suggest that General Haftar has the strongest claim to effective control on the ground, but are damning in their condemnation of how this is implemented: the forces under his command are said to be committing gross human rights violations with impunity. General Haftar’s ability to govern effectively is also substantially impeded by the fact that he is still fighting on several fronts. In Benghazi fighting continues in several neighbourhoods, where opposing militia, the Shura Council of Benghazi Revolutionaries (SCBR), are entrenched.
In addition to these three main powers, there is a myriad of different militias in operation. Ms Pargeter explained that some of these militias represent towns or urban neighbourhoods, some have tribal identities and some are ideologically driven: for instance, the aforementioned SCBR are Islamists believed to have some affiliation to al-Qaeda. That said, she did not consider the primary motivation of any of the players in this conflict to be ideology: “this is about power…it’s a turf war”. The consequence of this are shifting loyalties and agendas that can “produce significant changes on the ground very quickly”: AI (April 2017). In its 2014 ‘Position on Returns to Libya’ UNHCR cite figures (attributed to the BBC) that there could be as many as 1700 different armed groups in Libya.
Until recently this number included so-called ‘Islamic State’ (IS) who had taken hold of Siirte and other coastal towns. Ms Pargeter agreed that one positive story to come from Libya in recent months was the defeat of IS, who were comprehensively driven out of Siirte in December 2016, primarily by an alliance of militias from Misrata. Although IS no longer holds any territory, Ms Pargeter does caution that it may be too early to tell whether they will continue to feature in the conflict. An American airstrike killed an estimated 80 IS fighters in a base south of Siirte in January but concerns have been expressed by experienced analysts that those fighters who were able to escape have headed south into the desert, where they may re-emerge or change tactics to launch terrorist operations (rather than attempting to seize and hold territory).
On 29th March 2017 Dr Frederic Wehrey, an American academic specialising in security issues in North Africa, told the US House Subcommittee on Counterterrorism and Intelligence that “scattered ISIS members are regrouping and al-Qaeda affiliated fighters who had defected to ISIS are now returning back to al-Qaeda linked groups, more experienced and battle-hardened. Vast portions of [the] southern deserts remain a thoroughfare for the movement of fighters and arms to the Sahel and beyond”.
What are the prospects of political consensus among these different factions? At present the international community is pinning its hopes on the LPA, the accord which it managed to persuade individual members of the HOR and the GNC (the predecessor to the NSG) to sign in December 2015. It was this agreement that paved the way for the establishment of the PC/GNA. Ms Pargeter explains that from the outset the LPA was not well received in Libya. Many militias on the ground refused to recognise it and the leadership of both the HOR and the GNC voted to reject it. Prolonged negotiations to try and salvage the agreement have so far ended in failure. Today the success of this project depends, in the terms of the LPA itself, on the endorsement of the House of Representatives, which has thus far not been forthcoming. The principal stumbling block, in Ms Pargeter’s view, is that the HOR are demanding that General Haftar be appointed the national head of the armed forces and security, something that his opponents have not been prepared to countenance.
There has been some very recent progress in this regard. On the 19th April 2017 the UN Secretary General’s Special Representative in Libya Mr Martin Kobler reported to the Security Council that all three of the main blocs continue to support the LPA framework:
“The Prime Minister, The President of the House of Representatives both confirmed their commitment, as did the Commander of the Libyan National Army, Field Marshall Haftar, during our meeting last Thursday in Benghazi. The Head of the State Council expressed his agreement, as have almost all representatives of significant institutions and constituencies.
The agreement is not perfect. There is a consensus that amendments are needed.”
In her oral evidence Ms Pargeter emphasised that amendments would need to be made before there could be a workable consensus, which at present appears remote. She was however able to update the position further. She said that in the days before the hearing a meeting had taken place in the UAE between General Haftar and Fayaz Sarraj, the Prime Minister of the PC. No formal communiqué had been issued but leaks suggested that there had been some rapprochement between the two men and that this was grounds for cautious optimism. Ms Pargeter was not, however, “holding her breath for any real breakthrough”. Any agreement would need to be debated and approved in the HOR and the GNA and there were factions in both that would be implacably opposed to agreement. She considered it very doubtful that most Misratan militias would agree and said that there were certainly powerful elements in Tripoli that would be opposed to it. Ms Pargeter’s assessment would appear to be shared by Mr Kobler himself, who in the same address warned that the “optimism and confidence of Skhirat has faded”.
Given that the talks were continuing on the day of the hearing, leave was given to the parties to submit further evidence during a limited period. Nothing has materialised.
In his latest statement to the Security Council (19th April 2017) SGSR Martin Kobler said this:
“Public services, including access to electricity, health, education, water are failing many.
The economy continues to decline. The GDP has lost over half its value since 2012.
The lack of liquidity prevents Libyans from accessing their salaries. The dinar is losing value. The shadow economy and rampant corruption are growing.
Political divisions also threaten the cohesiveness of the sovereign financial institutions such as the Central Bank, National Oil Corporation and the Libyan Investment Authority. It is difficult to produce a realistic common budget for the whole of Libya.”
We were provided with a report dated 24th February 2017 by the International Crisis Group (ICG) which includes Libya as one of the ten countries on its ‘2017 watch list’. ICG’s conclusions on the economy, and its relationship with the conflict were as follows:
“Whatever is ideological and geopolitical dimensions, the conflict is largely about control of hydrocarbon resources and access to state funds. According to the National Oil Corporation (NOC), oil sector closures have cumulatively cost over a $100 billion in lost revenues from oil exports since 2013, resulting, according to the Central Bank of Libya, in a fiscal deficit of 56 per cent of GDP for both 2015 and 2016. The bank’s foreign currency reserves are estimated to have fallen below $40 billion, compared to $75 billion in March 2015. Oil production has increased since September 2016 - when Haftar-aligned forces seized most oil facilities in the Gulf of Siirte - from around 250,000 barrels per day (b/d) to 700,000 (still far below the 1.8 million b/d of 2010). Even if production reaches 1 million b/d by the end of March 2017, as the NOC projects, the economic outlook remains bleak. With crude oil prices $50 a barrel production increases will not cover expected government expenditure of around $40 billion in 2017. Libya could be bankrupt by the end of the year.”
These rather bleak assessments of the economy were supported by Ms Pargeter. Oil production has recently risen, reaching 720,000 barrels per day by January 2017, but it is difficult to predict whether that level can be maintained, or whether it will have any direct positive benefit to ordinary Libyans. Multiple problems are identified. First, the oil infrastructure itself is a significant prize in the ‘turf war’ being fought by the opposing parties. By way of example Ms Pargeter explained that a number of export terminals in the east were seized by General Haftar in September 2016, only to lose them to the Defend Benghazi Brigades (DBB) in early 2017; a matter of weeks ago General Haftar’s forces managed to win them back. A similar pattern can be seen in the west, albeit with different militias involved.
Second, the political stalemate, and the continuing dispute over who the legitimate government might be, has left the banks with a serious liquidity crisis. Where for instance teachers and hospital workers continue to receive their salaries by automatic bank transfer, they find that they cannot actually access the money. Long queues can be seen outside banks and many Libyans have simply given up depending on being able to access their salaries. Ms Pargeter’s contacts in Libya have told her that even in the cities people have started to grow their own vegetables and keep chickens. Services that Libyans had hitherto taken for granted, such as basic utilities, have been severely affected. For instance, in January 2017 a major blackout, caused by a lack of fuel and damage to some power plants, lasted for several days and affected the whole of the south and west of the country, as well as some parts of the east. Power cuts are now a feature of everyday life.
Ms Pargeter testified that as a result of this liquidity crisis, basic services such as health and education were severely compromised, even in places relatively unaffected by fighting. The health service had been largely dependent upon foreign workers who left in huge numbers after the collapse of the Gaddafi regime. In areas affected by fighting many hospitals had closed altogether, and the few that remained open were in a “dire” state. In their April 2017 commentary Amnesty International concurred with this view, citing the World Health Organisations assessment that the health system has “virtually collapsed”. There is a serious shortage of fuel, medicine and other basic supplies. Some schools are occupied by internally displaced persons and others continue to operate on an ad hoc basis. The fact that none of the ministries is functioning effectively means it is difficult to get a clear picture of what public services are actually available and functioning.
The Humanitarian Situation
We were shown various figures in respect of the numbers of internally displaced persons (IDPs). While in January 2017 Human Rights Watch reported that there are now approaching 500,000 IDPs within Libya, that figure was not particularised and its origins were not explained. The most detailed evidence on IDPs was that produced by the IOM. The results of round 8 of the IOMs Displacement Tracking Matrix were published on 15th March 2017. These showed “relatively steady” figures on the number of internally displaced persons, with a total of 303,608 individuals identified. This was a small decrease in the numbers recorded in round 7, and a significant decrease from round 3 published in March 2016 when there were found to be 417,123. These figures do not include the numbers of non-Libyans, mainly migrants from the sub-continent, who have been affected by the violence within the country.
There was also evidence of temporary displacement, for instance of families who fled fighting in the Tripoli suburbs, returning some time later. If they returned home within the reporting period they were not included in the figures. According to 91% of informants the main driver of displacement was the threat from general conflict and armed groups while 74% said that this remained the reason that they were unable to return home. Other obstacles to return were identified as ‘other security issues’, the presence of explosive hazards, damaged infrastructure and in 2% of cases, economic factors.
The most positive developments recorded in round 8 were the return of some 132,050 persons to Benghazi and the defeat of IS in Siirte, which allowed 2550 people to return to the city between mid - January and mid – February 2017. This number had increased to 50,700 by the date of publication. The main obstacles preventing further returns to Benghazi were the fact that much of the infrastructure was heavily damaged (resulting for instance in a lack of water), many homes destroyed and there was a “lack of functionality” in schools and hospitals. Similar problems were reported in Siirte, with additional concerns about the danger presented by ‘explosive remnants of war’ (ERWs).
In November 2016 the UN Office for the Coordination of Humanitarian Affairs (OCHA) reported that there are 1.3 million people in need of urgent humanitarian assistance in Libya today. The assistance being provided by the UN includes essential medicines, food, water, hygiene, sanitation, shelter and education.
It is against that political and economic background that the evidence on violence must be assessed.
Indiscriminate Violence in a Situation of Internal Armed Conflict
All of the evidence establishes beyond peradventure that there is conflict in Libya and that the participants are using indiscriminate violence which is having an impact on the civilian population. The nature of that violence is summarised in the Respondent’s March 2017 CPIN [at 4.2.5]:
“Forces aligned with all governments and dozens of militias continued to clash, exacerbating a humanitarian crisis with close to half-a-million internally displaced people...
‘Militias and armed forces affiliated with the two governments engaged in arbitrary detentions, torture, unlawful killings, indiscriminate attacks, abductions, and forcible disappearances. Criminal gangs and militias abducted politicians, journalists, and civilians—including children—for political and monetary gain.”
The January 2017 CPIN [at 8.1.2] cites similar findings by the UN Deputy High Commissioner for Human Rights, Ms Kate Gilmore, who addressed the Human Rights Council on the 27th September 2016:
“Warring factions continue to show little regard for civilians –failing to take steps needed to avoid or minimise civilian casualties and protect civilian objects from damage...
In residential areas across Libya, heavy weaponry has been deployed without ensuring sufficient precautions and this is true of all parties...
Armed groups act with complete impunity, continuing to abduct, torture and kill civilians on the basis of their perceived or actual family links, origin or political affiliation. In July, for example, 14 bodies were discovered dumped at a Benghazi rubbish tip. It was clear that the victims, some of whom had been abducted by armed groups earlier in the month, had been tortured and then killed. In June, 12 prisoners were released from Tripoli’s Al-Ruwaimi prison, in compliance with a court order. But, just 24 hours later, their families confronted the grim task of identifying their bodies. The 12 had been beaten, shot and killed. Those responsible remain unidentified in both instances...
Human rights defenders and media professionals have also faced abductions and attacks. Thanks to repeated intimidation and attack against their staff, the National Council for Civil Liberties and Human Rights in Tripoli remains effectively shut down. In March, prominent human rights advocate Abdul Basit Abu-Dahab, was killed in Darna when a bomb placed in his vehicle exploded. Many other human rights defenders have fled the country, curtailed their activities or gone into hiding...