Crimes Committed Against Migrants and Refugees in Libya
The joint report and communication to the International Criminal Court by three non-governmental organizations call for investigations on crimes against humanity
On 10 December 2021 the European Center for Constitutional and Human Rights (ECCHR) hosted the event “Crimes against migrants and refugees in the context of the ICC Libya investigation”, among the side initiatives of the twentieth Assembly of States Parties of the International Criminal Court (ICC) (link to the video recording here). During the event panelists presented and discussed the communication and joint report filed to the ICC on 23 November 2021 by non-governmental organizations ECCHR, International Federation for Human Rights (FIDH) and Lawyers for Justice in Libya (LFJL). Both documents focus on the grave crimes committed against migrants and refugees in Libya and are based on the findings of international organizations and the civil society, as well as on the statements by 14 victims. The communication to the Office of the Prosecutor of the ICC (OTP) under art. 15 ICC Statute highlights how thousands of migrants and refugees in Libya are subject to a cycle of systematic and widespread abuse and violence. Conducts committed against migrants and refugees in Libya, such as arbitrary detention, torture, murder, persecution, sexual violence and enslavement, amount to crimes against humanity under the definition of art. 7 ICC Statute (or even war crimes under art. 8 ICC Statute). These conducts need, in fact, to be put into the broader context of widespread violence and systematic abuse aimed at the economic exploitation of migrants and refugees; these conditions fulfill as such the contextual element required for crimes against humanity. The communication identifies 19 alleged perpetrators of international crimes, including well-known militia chiefs and high-ranking perpetrators belonging to Libyan armed groups and State actors. The jurisdiction of the ICC in relation to the alleged crimes is based on the United Nations (UN) Security Council’s Resolution 1970 (2011), in light of the direct connection between the armed conflict and the commission of crimes against migrants and refugees. The Libyan conflict not only worsened discrimination and hostility towards them, but it also contributed to their exploitation for the implementation of armed groups’ activities. The great majority of State and non-State actors involved in the political crisis and situation of instability are, in fact, at the same time responsible for the violence against migrants and refugees. The nature of the crimes in question is furthermore proven by the significant impact of migrants’ exploitation and extortion, through their detention and enslavement, on Libyan economy and political crisis.
Non-governmental organizations therefore urged the ICC Prosecutor to open investigations against those responsible of crimes against migrants and refugees, in order to put an end to the cycle of violence and to fight the widespread impunity for international crimes in Libya. Since United Nation Security Council Resolution 1970/2011, the OTP has been carrying out investigations on the Situation in Libya, without however focusing on crimes committed against migrants and refugees. On 23 November the Prosecutor presented to the UN Security Council the twenty-second report on the progress of investigations in Libya. The Prosecutor stated his determination to prioritize investigations in Libya, at the same time demanding a greater commitment by the UN Security Council and the States, in terms of both funding and cooperation in the arrest of suspects. Nonetheless, the Prosecutor's statement seems to exclude crimes against migrants and refugees from future investigations, as they appear to be relegated to States’ cooperation and to the implementation of the complementarity principle. This confirms the position of previous reports, which framed crimes against migrants and refugees as trafficking and smuggling, without considering the nature of exploitation and the gravity of violence and abuse.
"Despite strong calls by the former ICC Prosecutor to finally address the impunity in Libya, the crimes continue”, stated Chantal Meloni, Senior Legal Advisor at ECCHR and Professor of International Criminal Law at the University of Milan. “We strongly believe that only the ICC can address the complexity of the criminal system aimed at exploiting the human suffering of the migrants and refugees in Libya. We therefore call the current Prosecutor, Mr Karim Khan, to finally take the necessary steps to bring the perpetrators to justice.”, she added.
The joint report, entitled "No way out: Migrants and refugees trapped in Libya face crimes against humanity" also puts into perspective the analysis of crimes against humanity contained in the communication with migration and border externalization policies adopted by the European Union. Despite the awareness of the international nature of crimes committed against migrants and refugees in Libya, the measures adopted by the European Union aim to push back migrants from the European borders and to relegate them in Libyan camps, thus contributing significantly to the grave situation described. “While this problem is not new, since the overthrow of the Gaddafi regime in 2011 and the outbreak of the conflict, the scale of abuses against refugees and migrants in Libya has reached shocking proportions,” stated Marwa Mohamed, Head of Advocacy and Outreach at LFJL, adding that “The Libyan state must take responsibility for these grave crimes committed against those on its territory and take serious steps to bring an end to the cycle of abuse that prevails and remains unaccounted for in Libya”. The report calls on the European Union and the Member States to comply with their international obligations and immediately stop pushbacks of migrants to Libya, and to suspend all funding and assistance to Libyan authorities for migration policies. Any support to the Libyan authorities (such as the funding of the Libyan Guard Coast) must necessarily be conditional upon sufficient guarantees of human rights protection of migrants and refuges, and the establishment of an adequate asylum system to ensure their right to international protection in Libya.
 Statement of ICC Prosecutor, Karim A.A. Khan QC, to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), 24 November 2021, available at the following link.
 For a more detailed analysis see C. Meloni, X. Zang, Complementarity Is No Excuse: Why the ICC Investigation in Libya Must Include Crimes Against Migrants and Refugees, Opinio Juris, 1 December 2021 (available at the following link).