Written by Bolu Jegede

 

Introduction

For the ninth year in a row, Libya remains a special case in the U.S. Department of State Trafficking in Persons Report, underscoring its persistent struggles with human trafficking and lawlessness amid ongoing instability.¹See U.S. Dep’t of State, Office to Monitor and Combat Trafficking in Persons, Trafficking in Persons Report (2024), https://www.state.gov/reports/2024-trafficking-in-persons-report/libya (explaining that Libya is a “special case” due to government instability and mercenary activity). Libya ranks as one of the worst places for trafficking in the world, although the number of trafficked people is likely higher since large swaths of the Libyan territory remain unguarded because of political instability and mercenary activity in the region.²See id. Other factors like localized violent conflict, pandemic-related border closures, and movement restrictions also contribute heavily to the trafficking situation in Libya.³Id. Most victims of traffickers are migrants and refugees from sub-Saharan Africa (Nigeria, Ghana, Sudan, and Senegal) who are fleeing economic and political unrest.⁴See Pierre Bousel, The War Against Human Traffickers in Libya, Sada, Carnegie Endowment for Int’l Peace, https://carnegieendowment.org/sada/2023/08/the-war-against-human-traffickers-in-libya (last visited Jan. 11, 2025); see also Int’l Org. For Migration, Reg’l Off. For Middle East and North Africa (June 2024) (highlighting that in 2023, Libya had an influx of over 700,000 migrants trying to reach Europe). Other internally displaced persons in Libya also face the threat of trafficking, often falling prey to exploitative networks.⁵See Internally Displaced People, UNHCR, https://www.unhcr.org/us/about-unhcr/who-we-protect/internally-displaced-people (last visited Jan. 11, 2025) (defining internally displaced people as people forced to flee their homes due to conflict, violence, persecution, or disasters).

Because Africa is no stranger to human trafficking for sex or labor exploitation, the African Union created a new policy on the Prevention of Trafficking in Persons in Africa stemming from principles in the Universal Declaration of Human Rights.⁶African Union, Policy on the Prevention of Trafficking in Persons in Africa (Aug. 2014), https://au.int/sites/default/files/documents/43950-doc-AU_Policy_on_the_Prevention_of_Trafficking_in_Persons_in_Africa_-_Final.pdf. By adopting these principles, the African Union aimed to safeguard human rights, particularly the protection of vulnerable individuals from exploitation. The policy also seeks to create a comprehensive and coordinated approach among African states to prevent trafficking, protect victims, and prosecute perpetrators, recognizing that trafficking violates fundamental human rights. Prior to this, the only document for protecting against trafficking was the Kampala Convention, specifically targeted towards Internally Displaced Persons (“IDPs”).⁷African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, arts. VII—VIII, Dec. 6, 2012, 3014 U.N.T.S. 3. [hereinafter Kampala Convention]. Despite the comprehensive nature of the African Union’s most prominent legal frameworks, the Kampala Convention and the Policy on the Prevention of Trafficking in Persons in Africa, the lack of specificity for combatting smuggling undermines the Convention’s goal of curbing migrant trafficking.

The Kampala Convention framework applies to the situation in Libya, thus requiring different protections.⁸See Internally Displaced People, supra note 5. The judicial instability in Libya hinders the creation of effective structures to combat trafficking. This issue is further complicated by the lack of legal instruments to protect trafficked migrants. However, the African Union Peace and Security Council (“AU PSC”) remains a potential body for intervention.

The African Union Peace and Security Council

The AU PSC is the standing decision-making organ of the African Union for the prevention, management, and resolution of conflicts.⁹The Peace and Security Council, African Union, https://au.int/en/psc (last visited Mar. 8, 2025). Given its mandate to uphold peace, security, and stability across the continent, the AU PSC has the authority to address the trafficking crisis in Libya. This authority derives from Article 4(h) of the African Union Constitutive Act, which allows intervention in cases of war crimes, genocide, and crimes against humanity.¹⁰Id. Libya’s human trafficking crisis, particularly the enslavement of migrants, can be classified as crimes against humanity under international law and the AU legal framework. Due to the lack of African Union specific laws on the trafficking of migrants, the most viable solution is the AU PSC’s intervention in the situation in Libya.

The systematic trafficking of sub-Saharan African migrants in Libya falls within the scope of the AU PSC’s Article 4(h) powers, providing a legal basis for AU action because it constitutes crimes against humanity, which is one of the key triggers for AU intervention under its legal framework.¹¹African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 4(h), July 9, 2002, https://au.int/sites/default/files/treaties/7784-treaty-0036_-_protocol_relating_to_the_establishment_of_the_peace_and_security_council_of_the_african_union.pdf. For example, in 2003, the AU PSC deployed groups to Burundi (AMIB) and Somalia (“AMISOM”) and conducted a successful military intervention titled “Operation Democracy” in the Comorian island of Anjouan.¹²Emma Svensson, The African Union’s Operation in Comoros MAES and Operation Democracy, FOI, https://au.int/sites/default/files/documents/39226-doc-176._the_african_union_operations_in_comoros-maes_and_operations_democracy.pdf. Most recently, in 2015, the AU PSC authorized the deployment of the African Prevention and Protection Mission in Burundi (“MAPOB”), which consisted of five thousand peacekeeping forces.¹³Oita Etyang, Taye Abdulkadir, Claudia Masah & Tatenda Mapiro, Evaluation of the African Union Peace and Security Council: Lessons from 20 years of interventions and recommendations for the future, Pol’y & Prac. Brief. However, the Heads of States and Government eventually overturned the mission.¹⁴Id.

Evidently, the PSC’s role in conflict prevention and response enables it to engage diplomatically, impose sanctions on trafficking networks, or even coordinate with international partners to facilitate the evacuation and protection of affected individuals. These inherent functions add to its credibility as the best body to curb the trafficking problem in Libya.¹⁵Id.

Given Libya’s judicial instability and lack of functional legal mechanisms, African Union intervention would be crucial in addressing this crisis. This is a chance for the AU PSC to show some teeth and right its wrongs of failure to protect African citizens. Libya may raise concerns of sovereignty, but the African leaders drafting the PSC’s mandate were concerned about the Organization of African Union’s (“OAU”) refusal to intervene in dire situations.¹⁶Ben Kioko, The right of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention, 85 IRRC 807, 812, https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/irrc_852_kioko.pdf (last updated 2003) (listing the excesses of Idi Amin in Uganda and Bokassa in the Central African Republic as reasons for the ‘intervention’ power in Article 4(h)). Despite Libya’s concerns, the AU PSC intervened after the ousting of Muammar Gaddafi, which created a power vacuum and humanitarian crisis,¹⁷Prof. Paul Jackson, Libya two years on: the African Union Perspective, https://www.birmingham.ac.uk/research/perspective/paul-jackson-libya-perspective (last visited Mar. 8, 2025). and has grounds to continue its work here.

In 2017, the African Union outwardly condemned the situation in Libya when CNN exposed Libyan slave markets.¹⁸Raja Razek & Lauren Said-Moorehouse, ’Where is the world?’: Libya responds to outrage over slave auction, CNN World (Nov. 23, 2017, 10:53 AM), https://www.cnn.com/2017/11/23/africa/libya-reaction-slave-trade/index.html. The African Union also worked with the European Union and the United Nations to evacuate over sixty thousand African migrants from Libya.¹⁹Press Release, EU-AU-UN Taskforce Meets to Revitalize Tripartite Cooperation to Enhance Protection of Stranded Migrants and Refugees in Libya, Delegation of the European Union to the African Union (Oct. 27, 2022), https://www.eeas.europa.eu/delegations/african-union-au/au-eu-un-taskforce-meets-revitalize-tripartite-cooperation-enhance-protection-stranded-migrants-and_en?s=43. However, there is still much to be done to ensure the long-lasting protection of sub-Saharan African migrants from trafficking in Libya. The recommendations section will flesh out some proposals.

Recommendations and Conclusions

Due to Libya’s political instability, any solution that requires the country’s cooperation would be weak at best. The AU PSC, if authorized, can deploy military or peacekeeping operations in Libya based on its Article 4(h) powers.²⁰African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 4(h), July 9, 2002, https://au.int/sites/default/files/treaties/7784-treaty-0036_-_protocol_relating_to_the_establishment_of_the_peace_and_security_council_of_the_african_union.pdf. Additionally, Article 7(e) of the AU PSC Protocol empowers the PSC to mandate peace support missions and approve force deployment.²¹Id. art. 7(e). This operation could mirror other African Union peacekeeping efforts like AMISOM in Somalis or MISCA in the Central African Republic.²²Svensson, supra note 12. In Nigeria, where Boko Haram kidnapped and trafficked citizens, the African Union fought Boko Haram through the Multinational Joint Task Force (“MNJTF”).²³Lieutenant Colonel Sagir Musa, BAGA: Multinational Joint Task Forces, BHTs and Host Communities by Lt. Col. Sagir Musa, Sahara Rep.’s, https://saharareporters.com/2013/05/07/baga-multinational-joint-task-forces-bhts-and-host-community-lt-col-sagir-musa (last visited Feb. 7, 2025) (explaining that the MNJTF consisted of soldiers from Chad, Niger, and Nigeria). The African Union could mobilize regional forces to counter organized crime in Libya.

The ongoing human trafficking crisis in Libya presents a grave violation of human rights, compounded by the country’s political instability and lack of effective legal structures. Despite existing frameworks like the Kampala Convention, there is a clear gap in addressing the trafficking of migrants, particularly in the context of Libya’s unique challenges. The AU PSC, with its mandate under Article 4(h) of the AU Constitutive Act, stands as the most viable body to intervene and tackle the crisis. However, for the AU PSC’s intervention to be sustainable, it must be part of a broader strategy that includes stabilization efforts on Libya’s end, legal reforms, and regional support for migrants trapped in Libya’s dangerous trafficking networks.