Standards of Delivery: On the OTP’s Continuing Questionable Complementarity Standards in the Situation in Libya for Crimes Against Migrants

[Teresa Quadt is a PhD student at the University of Malta researching crimes against humanity in the context of migration. She works for the Syria Justice and Accountability Centre on universal jurisdiction cases and is a member of the expert commission on asylum at Amnesty International, Germany.]

Since 2019, the Central Mediterranean migration route, including the transit through Libya, has been the subject of several communications to the OTP (Office of the Prosecutor) at the ICC (International Criminal Court), providing compelling evidence for crimes against humanity against migrants by Libyan and EU actors. Despite the allegations, the OTP continues to apply complementarity standards that undermine a meaningful engagement with the crimes migrants face in Libyan detention facilities and related to restrictive border control practices of the EU. This concern has been previously articulated on this blog and reinforced by OTP’s most recent report to the United Nations Security Council (UN SC).

The first communication was submitted in June 2019 by the lawyers Branco and Shatz and invoked institutional inquiry in the European Union (EU). Following this submission, according to the senders, the OTP confirmed that the case was being processed and subsequently admitted. In an official statement, the EU rejected the accusations that the crimes were following EU policies, which is an essential aspect of the submission and a legal element of crimes against humanity (‘pursuant to or in furtherance of a State or organizational policy’). In 2021, the European Centre for Constitutional and Human Rights (ECCHR) further submitted extensive information concerning alleged crimes against humanity in Libya against migrants to the OTP. Moreover, in 2022, Adala for All, StraLi and UpRights, a coalition of NGOs, also argued that war crimes and crimes against humanity were committed against migrants in Libya. A second ECCHR submission from November 2022 concerned interceptions at sea as crimes against humanity related to Libyan sea rescue operations and returns. Although the OTP engages in investigations in Libya, it remains unclear whether it adequately considers the extent of the crimes migrants face and the critical question of the EU’s alleged involvement.

The OTP’s investigation into the Situation in Libya since 2011 predominantly focuses on war crimes and crimes against humanity in the context of the conflict, yet indeed acknowledges the ‘plight of refugees forced to flee the violence’. In August 2023, the OTP’s 26^th report to the UN SC stressed that ‘[i]mpunity for crimes against migrants has been a consistent feature in Libya which continues to this day’ (para. 44). In presenting the 27^th report to the SC, in May 2024, Prosecutor Karim Khan reiterated that crimes against ‘the most vulnerable individuals [must be] properly investigated and prosecuted’. Prosecutor Khan further stated that the OTP ‘continued to provide concrete, tangible, and meaningful support in relation to national proceedings involving crimes against migrants’. Regrettably, no information about national proceedings or convictions would suggest that the crimes migrants face are addressed domestically nor did the Chief Prosecutor provide further insights. What is more, the crimes committed in Libyan detention centres and elsewhere by Libyans continue to be committed.

Moreover, as the communications have partly brought forward, the involvement of EU actors has not been addressed in any of the OTP reports. While the 26^th report detailed the interceptions, returns, and drownings in brief, no reference to potential perpetrators and more specific crimes was made (paras. 53-55), which raises concern about whether these crimes exist in a ‘vacuum’, as argued by several scholars (Mann, Minetti), and are not subject to examinations. On the contrary, referring to national proceedings implies the potential inadmissibility of ICC activities related to migrants based on complementarity. 

Such an interpretation of the complementarity principle (Art. 17 ICC Statute) would be regrettable. The OTP defines its ‘positive complementarity’ approach as ‘a proactive policy of cooperation aimed at promoting national proceedings’ (para. 16). Whereas positive complementarity may have beneficial effects, and it is recognised that domestic prosecutions always have the prerogative, it only applies when the crimes are adequately and genuinely investigated and prosecuted domestically (para. 147). Although ongoing investigations may be confidential, there is no public record of completed prosecutions or convictions in Libya related to the crimes against migrants. Quite the contrary, the domestic legal framework against illegal immigration criminalises people on the move and justifies unlawful detention and forced labour practices contrary to international law. Libyan Law No. 19 of 2010 punishes illegal entry by detention, forced labour, and fines. A positive complementarity approach should entail that the Libyan authorities repeal or change that law. Whether the OTP demands such actions is not discernible from its reports.

Furthermore, domestic prosecutions, if there are any, would have to concentrate on relevant and genuine proceedings (paras. 131-146). Relevant proceedings entail that alleged perpetrators are investigated or prosecuted ‘for substantially the same conduct as that alleged in proceedings before the Court’ (para. 134). In Libya, if the full range of alleged crimes were accepted, this would require the Libyan authorities to investigate crimes against humanity against migrants, in particular, torture, beating, rape, and other cruel treatment (27^th report, para. 57), although still lacking behind the crimes alleged in the submissions (e.g. ECCHR, paras. 436-655). While it remains controversial which standard is required from national investigations as to the charged crimes, the ICC sets minimum standards (for instance, for the contextual elements in crimes against humanity, see Venezuela I Resumption of Investigation Judgment, paras. 9-14). It is further uncertain what ongoing activities by the Libyan authorities might entail; if there are any. Currently, it appears that only a fraction of the crimes would be addressed.

Meloni and Zhang already raised this concern in 2021 when they rightly critiqued the OTP for reducing the crimes against migrants in Libya to mere ‘smuggling and trafficking’. Karim Khan’s UN SC briefing in May 2024 reinforces this criticism. The crimes migrants are facing are manifold and continue to remain unaddressed. Moreover, the dire situation in the Central Mediterranean has rather exacerbated, also due to the intensified border defence by the EU.  The OTP’s genuine endeavour to address the crimes against the Libyan civilian population connected to the conflict and the cooperation with the Libyan state, under high-security concerns for all OTP personnel involved, must be complemented. Yet, the OTP seems to have delegated the investigation of crimes against migrants based on promises by the Libyan authorities to conduct the investigations, however, most likely for smuggling and trafficking, not for crimes against humanity. Close cooperation (‘partnership’, paras. 2-3), as well as trust, are undoubtedly necessary in practice. Still, regarding the legal requirements, the OTP seems to fail to adequately reflect the multitude and severity of the crimes committed against migrants in its complementarity assessment.

Although the Office’s 27^th report on Libya details the necessity to address a multitude of crimes, including extortion, beating, torture, and starvation, these crimes are allegedly committed by smugglers and militias (paras. 53-57). This is symptomatic of the failure to address the crimes allegedly committed by Libyan actors and facilitated by EU actors. Interceptions at sea and returns to Libya most likely causally contribute to the crimes committed in the detention camps upon return. The reduction to a handful of potential perpetrators and crimes coincides with reducing the standard for domestic prosecutions. Had the OTP included all crimes in its own agenda, it would have delegated that standard to the Libyan authorities. However, it appears that the decreased standard, i.e. predominantly smuggling and trafficking at the international level, corresponds to that at the domestic level, creating an impunity gap for the remaining crimes and actors. 

This invokes a complicated dialectic. The narrower the OTP’s own prioritisation of cases, the narrower the expectations towards the Libyan authorities regarding ‘relevant and genuine prosecutions’. Furthermore, the narrower the expectations on Libya, the lower the OTP’s self-imposed standard of caution towards the genuine prosecution (‘vigilance’, paras. 2-3 and 17). Complementarity, as an important principle in the relationship between nation-states and international courts, should not be diluted by reducing, materially speaking, the crimes allegedly committed. This bears not only the risk of misusing the admissibility rules by pre-empting substantive law issues but also contributes to the impunity for such crimes. 

Indeed, the OTP cannot prosecute all crimes committed everywhere. Still, it has not brought forward any comprehensible reason why the crimes against Libyans committed during the conflict and the crimes against migrants should be treated distinctively. If the Libyan authorities were willing and able to prosecute crimes against migrants adequately, it is not convincing why they should not be genuinely able to prosecute conflict-related crimes. And suppose they are unwilling or unable to prosecute the conflict-related crimes against Libyans, resulting in admissibility before the ICC, why should they be adequately capable of prosecuting the crimes against migrants?

In his briefing to the UN SC, Karim Khan held that the ‘most vulnerable’ (i.e. migrants) deserve redress and concluded with a powerful statement, namely that ‘[i]f we are real and sincere that every human life matters equally, the rule of law must apply in Libya as it must in every other situation.’ There is compelling information indicating that serious crimes are systematically committed against migrants equally severe to those against Libyan civilians. There is likewise sufficient prima facie credible material that challenges the sole responsibility of Libyan actors but instead demands genuine investigations into the role and potential liability of EU agents and decision-makers. Reducing the OTP’s standard for engagement in investigative activities related to crimes against migrants thus equally reduces the potential remedy for the victims on the domestic level – purportedly in order to comply with complementarity. In particular in light of the planned completion of the investigation by 2025, the OTP’s disparate treatment of the crimes against Libyans and crimes against migrants, without providing substantive arguments, further raises concern about the perception of the equal recognition of the plight of all groups of victims of this protracted conflict.