ICC Situation on Libya: The ICC Prosecutor Should Look into Libyan Criminal Proceedings Concerning Crimes Committed Against Migrants

[Alessandro Pizzuti is co-founder of UpRights. Prior to forming UpRights, Alessandro worked as a legal officer at the Special Tribunal for Lebanon as well as at the International Residual Mechanism for International Criminal Tribunals, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.]

On 14 October 2020, the Libyan Government of National Accord (GNA) announced the arrest of a coast guard commander, Abd al-Rahman al-Milad (aka ‘al-Bidja’), for charges related to human trafficking and oil smuggling. The arrest of Abd al-Rahman al-Milad is, in principle, a positive step towards strengthening Libya’s national accountability mechanisms for crimes committed against migrants. Al-Milad’s arrest, however, has broader implications and relevance given the ICC Prosecutor’s ongoing investigation on the situation in Libya.

This post examines how crimes allegedly committed against migrants, in which al-Milad is implicated, may amount to war crimes falling within the scope of the ICC’s jurisdiction pursuant to the UNSC referral in Resolution 1970. Such consideration suggests that the ICC Prosecutor may have an important role to play vis-à-vis proceedings against al-Milad.

Involvement of Abd al-Rahman al-Milad in crimes against migrants

Numerous sources allege that Abd al-Rahman al-Milad has played an instrumental role in the commission of crimes against migrants. According to the UN Panel of Experts on Libya (annex 17), al-Milad is linked to the Shuhada al-Nasr Brigade, an armed group controlling the Zawiya Oil Complex and a migrant detention centre, al-Nasr Detention Centre (al-Nasr DC), in al-Zawiya, situated on the Libyan west coast. Reportedly, migrants intercepted at sea by al-Milad, as a coast guard commander in al-Zawiya, were taken to the al-Nasr DC, where they were reportedly held in brutal conditions and subjected to a range of serious abuses. Since 2018, al-Milad has been subject to UNSC sanctions for his involvement in human trafficking and violence against migrants.

Crimes committed at the al-Nasr DC have been widely documented. A 2018 joint report of UNMSIL/OHCHR identified the al-Nasr DC among the detention centres with the most problematic human rights records, highlighting that migrants held there have been systematically subjected to torture and ill-treatments and recommending the closure of the centre. Similarly, the UN Panel of Experts found that, at the al-Nasr DC, migrants, including minors, were subjected to different types of inhuman and degrading treatment including extortion, sexual exploitation, violence, and starvation (annex 21). Women, especially from sub-Saharan countries and Morocco, were sold as sex slaves (here, annex 30). Such allegations have been echoed by NGOs, including Amnesty International, MEDU and ASGI, which have similarly described the dire living conditions and the mistreatment that migrants suffered in the al-Nasr DC.   

Qualification of the crimes against migrants as war crimes

The alleged abuses committed against migrants held in the al-Nasr DC appear to meet the elements of war crimes under Article 8 of the ICC Statute: a non-international armed conflict (NIAC) is ongoing in Libya since 2011, the alleged abuses committed against migrants held in the al-Nasr DC meets the requirements of relevant underlying acts under Articles 8(2)(c) and (e) of the ICC Statute and are sufficiently linked to the conflict.

Existence of a NIAC. There is no question that the violence occurring to date in Libya since 2011 between government forces and armed groups and/or between armed groups amounts to a NIAC – this setting aside the additional possible existence of a parallel international armed conflict given the involvement of various states in the conflict.  

As confirmed by ICC Pre-Trial Chamber I (PTC I) in the two arrests warrants issued in Al-Werfalli, respectively on 15 August 2017 and 4 July 2018, the hostilities did not cease with the fall of the Gaddafi regime, as the rebel forces continued to engage in military confrontations. Specifically, PTC I relied on incidents including: the armed clashes in Tripoli between 2013 and 2014, the Operation Dignity launched by Khalifa Haftar’s Libyan National Army (LNA) between 2014 and 2018, and the fighting in Tripoli between GNA-aligned armed groups against militias supporting the LNA in 2017 and 2018. The violence connected to the conflict between the GNA-aligned factions and the groups supporting the LNA notably continues to date.

Underlying acts. There is also little doubt that the alleged crimes committed against migrants in the al-Nasr DC, as described in UN and NGO reports, fit within the definition of a number of underlying acts provided under Articles 8(2)(c) and (e) of the ICC Statute, which criminalise war crimes committed in the context of a NIAC. The conditions of detention together with the torture and serious mistreatment of the migrants appear to be encompassed by Articles 8(2)(c)(i) and (ii) of the ICC Statute. Further, the extortion of migrants by the members of Shuhada al-Nasr fit the parameters of taking of hostages under Article 8(2)(c)(iii). Finally, the various forms of sexual exploitation of migrants in the detention centre fall within the scope of Article 8(2)(e)(vi), which covers, inter alia, rape, sexual slavery and enforced prostitution as a war crime.

Nexus with the armed conflict. To satisfy the nexus requirement, a crime must be closely related to the hostilities, meaning that the armed conflict must have, at a minimum, played a substantial part in the perpetrator’s ability to commit the crime, decision to commit it, the purpose of its commission, or the manner in which the crime was committed (Afghanistan Appeal Judgment, paras.69-70). The armed conflict need not have been causal to the commission of the crimes, nor do the crimes need have occurred in the midst of battle. Rather, it is sufficient that perpetrator acted in furtherance of or under the guise of the armed conflict. Factors indicating the existence of a nexus may include: (i) the fact that the perpetrator is a combatant; (ii) the fact that the victim is a non-combatant or is a member of the opposing party; (iii) the fact that the act may be said to serve the ultimate goal of a military campaign; and (iv) the fact that the crime is committed as part of or in the context of the perpetrator’s official duties (Judgment on Appeal of Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction’, para.68).

In the present case, there are at least three factual considerations suggesting that the crimes committed against migrants in the al-Nasr DC are indeed sufficiently linked to the ongoing hostilities in Libya. First, Shuhada al-Nasr and its members took active part in the ongoing conflict. The UN Panel of Experts observed that the brigade is among the armed groups aligned to the GNA (Appendix A to Annex 6). Shuhada al-Nasr participated in the armed conflict, and specifically in some of the armed clashes identified in Al-Werfalli. Shuhada al-Nasr took part in Operation Libyan Dawn in 2014, engaged in armed clashes in 2016 and 2017 in Zawiya (here, para.157; here, Annex 21) and, according to media articles, participated in the more recent hostilities against Haftar-aligned troops. Second, the victims of the relevant alleged conduct (i.e. migrants detained in the al-Nasr DC) are non-combatants, there is no evidence or information that they took active part in the hostilities. Third, the UN Panel of Experts has alleged that “trafficking and extortion of migrants is another income source for individuals within the [Shuhada al-Nasr] brigade’s network” (Annex 21, para.3). The fact that the crimes committed in the al-Nasr DC, and in particular the extortions of migrants, constitute a source of financial revenue for the armed group suggests that such crimes are instrumental to financing its military engagement, as to serve the ultimate goal of its military campaign (Luigi Prosperi, p.255).

ICC jurisdiction over the crimes

The crimes also appear to fall within ICC jurisdiction as conferred by the UNSC pursuant to Resolution 1970. 

In her regular reporting to the UNSC, the ICC Prosecutor, Fatou Bensouda, herself has indicated that serious crimes committed against migrants in Libya may fall within the Court’s jurisdiction, repeatedly affirming that her Office is investigating such crimes (see e.g. here, here, here, here, here and here). Of note, no member of the UNSC has apparently objected to such approach.

The stance of the ICC Prosecutor appears to be consistent with the rationale behind  Resolution 1970 whereby the UNSC referred “the situation in the Libyan Arab Jamahiriya since 15 February 2011” pursuant to Article 13(b) of the ICC Statute. While clearly providing open-ended temporal jurisdiction to the ICC (from 2011 onward), admittedly, the factual parameters of the situation referred to in the Resolution 1970 are framed in a much less clear manner. The only reference to such parameters can be detected in the resolution’s preamble which mentions the ‘gross and systematic violation of human rights’ that occurred in the context of the Libyan civil war originating through the demonstrations held against the Ghaddafi regime in 2011. In this regard, any attempt to construe such reference in the preamble as to narrow the scope of the ICC’s jurisdiction only to the crimes perpetrated by members of the Ghaddafi regime against civilians taking part in the demonstrations would lead to the conclusion that the UNSC gave the Court the authority to investigate and prosecute the conduct of only one party to the conflict. This would be inconsistent with the very notion of ‘situation’ as elaborated in Articles 13 and 14 of the ICC Statute, which in principle should prevent the referring body from restricting the ICC Prosecutor’s discretion to investigate a “particular conduct, suspect or party” (Rod Rastan, p.422).      

Moreover, in Al-Werfalli, PTC I adopted a broad approach to the interpretation of the scope of  the UNSC referral, concluding that crimes allegedly committed in 2016/2017 in Libya by Al-Werfalli, commander of the al-Saiqa Brigade, were “sufficiently linked with the situation that triggered the jurisdiction of the Court” since they were associated with the hostilities and the al-Saiqa Brigade had been involved in the conflict since 2011 (para.23). Notably, in reaching this conclusion, PTC I relied on its previous decision in the Mbarushimana case, where it observed that the Court’s jurisdiction could encompass crimes committed years after a state referral, even by individuals who were not active at that time (paras.16, 42). Overall, Al-Werfalli importantly confirms that: (i) the situation of crisis at the basis of the UNSC resolution is still ongoing and covers, at least, the NIAC between the provisional government and/or the different insurgent groups; and (ii) the ICC may exercise jurisdiction over crimes committed in Libya provided that they are linked to such context.

These considerations equally apply to the crimes allegedly committed against migrants in the al-Nasr DC. Their connection with the ongoing armed conflict in Libya exposes such crimes to ICC jurisdiction. In this regard, considering the jurisdictional relevance of the armed conflict in Libya, the same three factual considerations underlying the nexus between the crimes committed at the al-Nasr DC and the armed conflict also in parallel establish the essential jurisdictional link. Indeed, in Al-Werfalli, PTC I’s assessment of the link between the situation of crisis is articulated along the same lines of the test to establish the nexus requirement vis-à-vis war crimes. It follows, thus, that the fact that Shuhada al-Nasr participates in the armed conflict that originated in 2011, the crimes allegedly committed in the al-Nasr DC are used as means to finance the brigade, and the victims of these crimes are non-combatants are sufficient indicators that such crimes fall within the Court’s jurisdiction.

Potential role of the ICC OTP in the proceedings against al-Milad

According to the information available, al-Milad is now detained in a detention centre situated in Tripoli, under the control of the Special Deterrence Force a GNA-aligned group. Given the current situation of instability, it is difficult to assess whether the Libyan national system will ultimately be able to conduct a comprehensive investigation into the conduct of al-Milad or to carry out effective legal proceedings. The challenges faced are compounded by the objective difficulty of collecting evidence from victims, intercepted at sea and detained/mistreated in the al-Nasr DC, who are not currently in Libya. It is also hard to envision that victims will have the possibility to meaningfully participate in the proceedings.

The ICC Prosecutor has consistently affirmed her commitment to closing the impunity gap with respect to crimes against migrants and supporting national investigations and prosecutions related to human smuggling and trafficking through Libya. The case of al-Milad provides an important opportunity for the ICC OTP to do just that. The OTP can potentially play a constructive (and essential) role in ensuring that justice is properly served, such as by sharing any relevant evidence it has collected, coordinating with international/national stakeholders to support and encourage the organisation and commencement of a trial, and closely monitoring and scrutinising the status and progress the domestic proceedings.

Concurrently, Libyan authorities must assess the realistic prospects for, or viability of, prosecuting al-Milad domestically, given the prevailing circumstances in the country and the difficulties inherent to this case. A different option would be to surrender him to the ICC. It is true that in the Gaddafi and Al-Senussi case, Libyan authorities vigorously opposed the idea of surrendering the suspects to the ICC, arguing that the country had the will and ability to prosecute them. However, this time, things may be different. There is a clear difference of standing and political value between Saif Al-Islam Gaddafi or Abdullah Al-Senussi and Abd al-Rahman al-Milad. Further, surrendering al-Milad would be not necessarily reflect upon the effectiveness of the Libyan judicial system. Rather such a course of action could be taken by Libyan authorities as an expedient solution under the circumstances, one that not only serves their interests but at the same time also those of victims.