EJIL: Talk | 29.03.2018
In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.
These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.
During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a “dark web of collusion”, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:
“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”
In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”
European Agents and the Alleged Crimes
On September 13, 2017, UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, Agnes Callamard, published her report to the UN General Assembly, on the “Unlawful Death of Refugees and Migrants”. The report meticulously documents border control practices with horrible impacts on the world’s most disempowered populations: mass deaths by drowning, an epidemic of mental illness and self-harm in refugee camps, and indefinite detention periods in harrowing conditions. One of the main concerns the report presents is with the population of migrants trying to find their way out of Libya through Mediterranean routes.
Callamard’s report does not absolve human traffickers in Libya from responsibility. In that sense, it goes hand in hand with Bensouda’s investigation. Yet it casts a much wider net for a future international criminal investigation focusing on crimes against migrants, including indictments of agents of “developed” countries. She observes that non-governmental organizations offering rescue services for migrants and refugees attempting to escape Libya “are under increasing pressure from the European Union, which is undermining, if not preventing, their efforts.” She condemns the underlying “policies based on deterrence, militarization and extraterritoriality which implicitly or explicitly tolerate the risk of migrant deaths as part of an effective control of entry”. In her eyes, it is simply “not acceptable” to “deter entry” (or discourage exit from unsafe countries) “by endangering life”. And in her recommendations, she spells out the practical implications:
“The International Criminal Court should consider preliminary investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met.”
A few weeks ago, on 1 March, 2018, Nils Melzer, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, joined many of Callamard’s conclusions about the treatment of migrants. He too argues for personal criminal responsibility. As Melzer writes,
“States and the ICC-Prosecutor should examine whether investigations for crimes against humanity or war crimes are warranted in view of the scale, gravity and increasingly systematic nature of torture, ill-treatment and other serious human rights violations suffered by millions of migrants in all regions of the world, as a consequence of corruption and crime, but also as a direct or indirect consequence of deliberate State policies and practices of deterrence, criminalization, arrival prevention, and refoulement” (emphasis added).
Both Callamard and Melzer do not set the preferences in terms of what particular situation should be investigated. Elsewhere, a group of international legal scholars working with a clinic at Stanford Law School and the Global Legal Action Network (GLAN) have argued that “Deliberate state practices of deterrence, criminalization, arrival prevention, and refoulement” have been central to Australian policies. The group (including one of us) sent a communication to the prosecutor, alleging that Australian agents would be good candidates for a preliminary examination by the prosecutor. But, as scholars have long demonstrated, deterrence, arrival prevention and refoulement policies are also a key feature of policies led by European countries. The ongoing investigation into the situation in Libya must therefore examine these practices as well. If we believe Melzer, severing the acts of traffickers from Italian aiding and abetting (under Article 25(3) of the Rome Statute) is artificial, and would likely miss investigating the main reasons migrants are abused in the first place. The role of the EU, through its missions and agencies operating in Libya and at sea, should also be scrutinized. Assisting, training or funding organs of countries that disregard human rights may trigger international responsibility. In fact, in the face of gross and systemic human rights violations, no aid or assistance should be rendered that contributes to “maintaining that situation”.
Highlighting Structure
In recent years, news media has often circulated disturbing photographs of the abuse migrants suffer in the hands of their captors in Libya. We have seen mutilated bodies, and the exposed torsos of shackled men. The scenes could have just as easily been taken from the 2013 box-office hit by director Steve McQueen: 12 Years a Slave.
Yet, as Melzer adds – echoing Callamard:
“[t]he primary cause for the massive abuse suffered by migrants … including torture, rape, enslavement, trafficking and murder, is neither migration itself, nor organised crime, or the corruption of individual officials, but the growing tendency of States to base their official migration policies and practices on deterrence, criminalisation and discrimination, rather than protection, human rights and non-discrimination.”
Investigating exclusively crimes occurring in Libya by human traffickers – awful as they may be – reflects an unacceptable bias, and would likely amount to selective prosecution. An alternative decision to also investigate the collusion of European actors would more adequately address the entire situation, its systemic nature and programmed design. It will expose the “industrial” character of smuggling and trafficking for what it is: The consequence rather than the cause of suffering, in a system that traps migrants in a “vicious circle” of more control, more danger, and more dependence on facilitators to escape life-threatening perils. Such a decision is likely within the Prosecutor’s mandate under the UN Security Council referral and is called for by Callarmard’s and Melzer’s important conclusions.
A finding that European actors were involved in such crimes would highlight structural aspects of the situation in Libya, and not only serve to lay blame on a few relatively powerless actors. It would show that militia and trafficking agents are often working at the service (or for the ultimate benefit) of European principals, precisely for the purpose of preventing poor and black populations from access to European sources of wealth – sources of wealth that are, moreover, typically located in countries that were previous colonizers in some of the places migrants are now coming from. Human rights violations can indeed be perpetrated by action or omission. Practices of “consensual containment” and “contactless control” can be deemed equivalent to active forms of abuse where the end effect is the same. Libya has fallen to militia rule following military intervention by a U.S.-European coalition. Exclusively investigating Libyan actors would be bitterly ironic.