Complementarity Is No Excuse: Why the ICC Investigation in Libya Must Include Crimes Against Migrants and Refugees

[Chantal Meloni is International Criminal Law Professor at the Law Faculty of the University of Milan (Italy) and Senior Legal Advisor at ECCHR (Germany). In this capacity she has worked at the Communication that was submitted to the ICC on the crimes against migrants and refugees in Libya. Xuchen Zhang is a Research Fellow at ECCHR. In this capacity she has worked at the Communication that was submitted to the ICC on the crimes against migrants and refugees in Libya.]

On 23 November 2021, the Prosecutor of the International Criminal Court (ICC), Karim Khan QC, presented his Office’s report on the Situation in Libya to the United Nations Security Council (UNSC), pursuant to UNSC Resolution 1970 (2011). In fact, it has been almost 11 years since the ICC opened an investigation into the Situation in Libya in February 2011, and 22 reports (one every six months) have been presented by now. In his first appearance and statement before the UNSC, the new Prosecutor demonstrated his determination to forge ahead with the investigation into Libya. He stated his intention to prioritize investigations opened pursuant to UNSC referrals – as these referrals, including Libya, rightly deserve – while maintaining independence and impartiality in reviewing the evidence. It is also commendable that the Prosecutor demanded stronger commitment from the UNSC and States both in terms of increased budget and cooperation in arresting wanted suspects. 

Nevertheless, the Prosecutor’s report raises points of concern, in particular vis-à-vis the strategy that the OTP appears to be following since 2017, regarding grave crimes against migrants and refugees that continue to be committed in Libya. While, on the one hand, the Prosecutor appears to be willing to pursue new cases in Libya, as indicated also by the OTP proposed 2022 budget, on the other hand, the Prosecutor’s statement and language suggest that the new cases will not include crimes against migrants and refugees. On the contrary, it appears that with regard to these crimes, complementarity and State cooperation will continue to be the reference. The Prosecutor called for “imaginative and nuanced” responses and “a new era of engagement” with the UNSC and States, which implies heavy reliance on domestic investigations and prosecutions. Furthermore, together with past reports from the Office, there seems to emerge a consistent narrative that frames crimes against migrants and refugees as “smuggling and trafficking”, which is not to be neglected but fails to account for the exploitative nature and the severity of violence and abuse to which migrants and refugees are subjected. 

Rather, these crimes warrant being characterized as crimes against humanity and war crimes. Indeed, on 19 November 2021, just a few days before the Prosecutor’s briefing at the UNSC, the European Center for Constitutional and Human Rights (ECCHR), the International Federation for Human Rights (FIDH), and Lawyers for Justice in Libya (LFJL) submitted a communication pursuant to Article 15 of the Rome Statute to the ICC (see press release and executive summary). Based on the account of 14 witnesses as well as public information from various UN bodies, civil society organizations, individual experts, and domestic and regional courts, the 250 page-long Communication describes and analyzes the extreme violence committed against migrants and refugees, particularly in detention settings, in terms of crimes against humanity (and possible war crimes) under the ICC’s jurisdiction. In this regard, a jurisdictional link can be established to the situation, as referred to the Court by UNSC Resolution 1970, via a direct connection between the armed conflict in Libya and the commission of crimes against migrants and refugees. Firstly, the conflict fostered increasing instability and a security crisis in the country that exacerbate discrimination and hostility against migrants, and an extreme worsening of their living conditions. Secondly, migrants are forced to work for armed groups, including by transporting weapons and even directly participating in hostilities. Moreover, there are clear links and overlap between the main actors involved in the armed conflict and the perpetrators of these crimes. The same actors that took advantage of the political instability and security crisis following the armed conflict – State and non-State parties alike – also engage in the commission of crimes against migrants and refugees. Finally, there is an economic link between the conflict and the systematic exploitation of migrants and refugees that has become a revenue-generating business central to the conflict economy. As such, the cycle of abuse against the migrants and refugees perpetuates the conflict. The Communication thus urges the ICC to investigate and prosecute Libyan armed groups, militias, and State actors involved in the commission of crimes such as murder, enslavement, torture, persecution, and sexual and gender-based violence.

As the Communication argues, the alleged crimes do not occur on an isolated or incidental basis. Rather, they reflect a clear pattern of violence and abuse aimed at exploiting migrants and refugees. Libyan authorities’ endorsement of these criminal acts is evident in several domestic laws – most prominently Law No. 19 of 2010 that enables the indefinite detention and forced labor of migrants. These circumstances further evince the presence of a State-policy of violence against migrants and refugees, thus qualifying the crimes as crimes against humanity. Since most of these crimes took place in the context of an ongoing armed conflict, they constitute war crimes as well.

The factual circumstances revealing the widespread and systematic nature of such crimes are well-documented and undisputed. In its October 2021 report, the UN Independent Fact-Finding Mission on Libya found migrants and refugees to be “systematically subjected to a litany of abuses” as soon as they enter Libya. The Mission also expressly concluded that the scale of violence and abuse may amount to international crimes under the Rome Statute. Various international, independent organizations have likewise extensively recorded the widespread and systematic attack against migrants and refugees (see e.g., Amnesty International 2020 report “Between Life and Death”: Refugees and migrants trapped in Libya’s cycle of abuse). At the UNSC briefing, notably, not only the Prosecutor but also all State representatives acknowledged the existence of crimes against migrants and refugees in Libya and affirmed the need to end impunity for such crimes. 

Besides Libyan actors, the complicity of European actors has not gone unnoticed. Accompanying the above-mentioned Communication to the ICC, the ECCHR, FIDH and LFJL issued a public report for the audience beyond the ICC that details the relationship between European and Libyan actors. Other organizations also documented EU responsibility in relation to the violence against migrants and refugees in Libya (see e.g., Amnesty International 2017 report Libya’s Dark Web of Collusion; Human Rights Watch 2019 report No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya; and a communication to the ICC). 

As such, the question is not whether these crimes have been committed, but who should be investigating and prosecuting them. The ICC seems to be the most obvious answer for several reasons: (1) the ICC is able to fully capture the gravity and complexity of the crimes in a way that domestic courts cannot; (2) the ICC is not impeded by claims of immunity; and (3) the ICC is best suited to overcome potential political obstacles that may shield high-ranking perpetrators from accountability. 

With the legal framework established by the Rome Statute and its specific mandate to focus on the “most responsible ones” for the commission of international crimes, the ICC can properly deal with the complexity and systematicity of crimes against humanity and war crimes, the contextual elements of which involve the State apparatus. While commendable, the few domestic prosecutions, conducted by third States on crimes against migrants in Libya, often focused on individual crimes that fall short of addressing the larger contextual elements. The inadequacy of domestic proceedings is particularly evident in Italy, where no reference to crimes against humanity has been made due to the absence of appropriate legislation criminalizing conducts as such (see e.g., Corte d’Assise di Agrigento, Judgment 1/18 (12 June 2018) and Corte d’Assise di Milano, Judgment 10/17 (10 October 2017)). Even when prosecutors and judges recognize the presence of a larger system behind the individual crimes, they often lack the tools and opportunity to reach perpetrators higher up the chain of command (see e.g., Tribunale di Messina, Judgment 149/2020 (28 May 2020)). In contrast, the ICC can properly charge crimes against migrants and refugees as crimes against humanity and war crimes under the Rome Statute. It is also equipped to conduct larger investigations into the complex criminal networks which amount to a huge criminal business overseeing the exploitation and abuse of migrants and refugees in Libya and beyond. The ICC is the best forum to deal with perpetrators in command and control of the official Directorate for Combatting Illegal Migration (DCIM) and unofficial detention sites where migrants and refugees are unlawfully detained, as well as those profiting from the overall criminal business. This is particularly important in light of the specific situation of Libya, where militias and other criminal actors are sometimes incorporated into the State apparatus, blurring the line between State and non-State actors.

Indeed, not only can the ICC investigate perpetrators at higher echelons and charge them with the most-fitting crimes, but it can also bypass potential claims of immunity that could bar prosecution in domestic courts. As Article 27 of the Rome Statute explicitly provides, immunities or special procedural rules which may attach to the official capacity of a person – and which may still apply at the national level – do not bar the ICC from exercising its jurisdiction over such a person. Hence, high-level perpetrators, including Libyan authorities, cannot hide behind the shield of immunity.

The ICC is also better positioned to overcome political impediments that may affect domestic proceedings. As Libyan State actors, as well as non-State actors incorporated into the State apparatus, are involved in the crimes against migrants and refugees, domestic efforts in Libya, as well as in third States, to ensure accountability for high-ranking perpetrators could be a politically sensitive venture. Indeed, despite the gravity of these crimes, there has been near blanket impunity for the perpetrators. To date, Libyan authorities have failed to investigate and prosecute these crimes. Similarly, as several European governments are also involved in the commission of crimes against migrants and refugees, one could see the political challenges of holding State-level perpetrators accountable through domestic prosecutions in European countries.

It is a sad reality that the ICC investigation in the situation in Libya has not been very successful so far, with three warrants of arrest for five individuals not executed (see list of warrants here) and a case declared inadmissible. The fact that Saif Gaddafi, targeted by an arrest warrant by the ICC since 2011, is a candidate for the next elections in Libya is telling. Under the current Prosecutor’s renewed efforts and a stronger commitment from the UNSC and the States, it is hoped that the investigation into the situation in Libya would yield more visible and effective developments. Such progress must include crimes against migrants and refugees, as they constitute one of the essential components and most blatant form of violence in the conflict and crisis situation which was referred to the ICC back in 2011 by the UNSC as a threat to the peace and security of the world.