On 28 April 2022, during a regular briefing to the United Nations Security Council on the situation in Libya, the Prosecutor of the International Criminal Court (ICC) reported that crimes committed against migrants in Libya may amount to crimes against humanity and war crimes and fall within the ICC jurisdiction. Never before had the Prosecutor been so clear on the nature of these crimes or his Office’s intention to pursue such a line of investigation.

These conclusions are fully consistent with the Article 15 Communication on War Crimes and Crimes Against Humanity Committed Against Migrants and Asylum Seekers in Libya filed on 17 January 2022 by UpRights, Adala for All, and StraLi. In his report the Prosecutor confirmed that the communication assisted his work and inquiry concerning relevant crimes committed against migrants in Libya.

The Article 15 Communication filed on 17 January 2022 – and now publicly available – concerns war crimes committed in Libya between 2017 and 2021 against migrants and asylum seekers. The Communication requests the ICC to investigate international crimes committed by Libyan armed groups against thousands of migrants, including women and children, trapped in detention centres in Libya following their interception at sea. Once returned to Libya, the victims were routinely and systematically subjected to various forms of mistreatments and abuse including murder, torture, rape, forced labour and forced conscription. The Communication underlines that the ICC Prosecutor must investigate war crimes against migrants and asylum seekers detained in Libya committed by Libyan armed groups and officials with the support of Italian and Maltese Authorities.

In a blog post published today on Justice in Conflict, UpRights co-founder Alessandro Pizzuti and Alice Giannini from StraLi discuss the ICC Prosecutor’s report to the United Nations Security Council and the content of the Article 15 Communication filed on 17 January 2022. The post reconstructs some of the challenges, in terms of qualification and jurisdiction, which are behind the ICC Prosecution’s conclusion that the abuses against migrants in Libya may qualify as war crimes and crimes against humanity.

The International Criminal Court must investigate war crimes against migrants and asylum seekers detained in Libya committed by Libyan armed groups and officials with the support of Italian and Maltese Authorities

(The Hague, Paris, Turin) 18 January 2022 – Yesterday, Adala for All, StraLi, and UpRights filed a Communication to the International Criminal Court (ICC) concerning crimes committed in Libya between 2017 and 2021 against migrants and asylum seekers which may amount to war crimes within the jurisdiction of the court. The Communication requests the ICC to investigate international crimes committed by Libyan armed groups against thousands of migrants, including women and children, trapped in detention centres in Libya following their interception at sea. Once returned to Libya, the victims were routinely and systematically subjected to various forms of mistreatments and abuse including murder, torture, rape, forced labour and forced conscription. The Communication underlines that the ICC Prosecutor should scrutinize, in addition to Libyan actors, the potential criminal conduct of Italian and Maltese authorities and officials for the support they provided to Libyan actors.

Since the Revolution of 2011, Libya has been subject to ongoing armed conflict and political instability. Armed groups have dominated smuggling and trafficking throughout the country and developed a predatory economy in which migrants are intercepted at sea during their journey to Europe, returned to Libya and placed in detention centres in which they are systematically subjected to serious abuses. Actors involved in the commission of these alleged crimes include members of armed groups in control of detention centres, acting under the nominal authority of Libyan authorities, as well as the Libyan Coast Guard and the Department Combatting Illegal Migration under the Ministry of Interior.

The crimes committed against migrants and asylum seekers qualify and should be investigated as war crimes under Article 8 of the ICC Statute. Members of armed groups, taking direct part in ongoing hostilities in Libya, have subjected migrants intercepted at sea to numerous abuses in detention centres under their control including murder, torture and/or cruel treatment, forced labour, hostage-taking, and various forms of sexual violence including rape and sexual slavery. The Communication submits that these acts meet the threshold necessary for war crimes as they took place in the context of and were associated with the ongoing armed conflict in Libya. Additionally, these crimes qualify as crimes against humanity under Article 7 of the ICC Statute.

The need to investigate and ensure accountability is heightened by the fact that a number of European authorities, including Italian and Maltese nationals, have facilitated the return of migrants to Libya leading to their detention and subsequent mistreatment. As observed by Ramadan Amani from Adala for All, “Crimes committed against migrants in Libya represent an emerging ‘pocket of impunity’ at the border of Europe which has become increasingly and openly accepted by the international community despite the massive amount of evidence of pervasive international crimes on Europe’s doorstep. Available evidence clearly points to responsibilities within Europe.”

Between 2017 and 2021, Italian authorities and officials provided crucial support to the Libyan Coast Guard to intercept migrants at sea and return them to detention centres including the provision of assets, equipment, maintenance and trainings. Italian and Maltese officials closely coordinated with the Libyan Coast Guard on rescue operations to ensure that migrants at sea would be intercepted and returned to Libya. The communication submits that the support provided by the Italian and Maltese authorities to the Libyan Coast Guard qualifies as a form of contribution to the crimes committed against migrants in detention centres and triggers international criminal responsibility under the ICC Statute.

Alessandro Pizzuti, co-founder of UpRights, underlines that “crimes committed against migrants in Libya differ from past atrocities generally addressed by international criminal courts and tribunals. In Libya the parties to the conflict target migrants because they are perceived as a crucial asset to advance their political and military objectives. To meet the new challenges that the world is facing, it is indispensable that the international criminal court provide robust responses to these new factual scenarios and dynamics”

The submitting organizations reiterate the need for investigation and potential prosecution of all relevant actors outlined in the Communication. As observed by Nicolò Bussolati, vice-President of StraLi, “the Communication requests the ICC to undertake an investigation and take an important first step to ensure that crimes related to migration, traditionally under the purview of human rights and refugee law, are scrutinized through the lens of international criminal law”.

For more information, please contact Alessandro Pizzuti: a.pizzuti@uprights.org

Read the Executive Summary of the ICC Communication and the Press Release.

About the Organizations

Adala For All is a not-for-profit organization, based in France, and composed of a network of dozens of Libyan human rights lawyers and jurists with expertise in the MENA region. Through its members, based in Libya, AFA works with victims and members of local CSOs in need of legal support to defend their cases in front of national courts and access to international accountability mechanisms.

StraLi is an Italian NGO aiming at the promotion and protection of human rights through the judicial system and, in particular, the use of strategic litigation tools. The organisation is mainly based in Turin, but has active members all over Europe. Although mainly composed of lawyers, it includes professionals from various fields – such as doctors, psychologists, social-media managers and journalists – to approach human rights protection from an holistic and multidisciplinary perspective.

UpRights is a non-profit initiative based in The Hague, Netherlands. UpRights strives for effective access to justice for victims of serious human rights violations and international crimes. UpRights works in collaboration with civil society and international organisations to promote victims’ rights, providing professional assistance on matters concerning international criminal law and human rights law. Our team includes professionals from international criminal Tribunals and UN Commissions of Inquiry with extensive knowledge of human rights and international criminal law.

In a blogpost published on OpinioJuris, UpRights co-founder Alessandro Pizzuti and Dr. Clare Frances Moran from Edinburgh Napier University discuss the human rights implications of the Memorandum of Understanding signed between Italy and Libya in 2017.

The support provided by Italy pursuant to the Memorandum of Understanding has enhanced the capacity of the Libyan Coast Guard to intercept migrants at sea and return them to Libya where they are subjected to systematic abuses including torture, sexual violence, and murder. These forms of abuses may amount to violations of the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the Convention against Torture (CAT). To the extent that Italy’s support to the Libyan authorities is instrumental to such violations, these instruments may apply extraterritorially, attracting Italy’s responsibility for such acts.

Read the full blogpost on OpinioJuris!

In July, Uprights released a concluding that Italy’s cooperation with Libyan authorities under the MoU is in violation of its human rights obligations and that the agreement needs to be reframed consistently in accordance with international law standards.

On 1 July 2021, the European Center for Constitutional and Human Rights (‘ECCHR’), with the support of UpRights, filed a Request to the Office of the Prosecutor of the International Criminal Court to review its decision of 9 December 2020 not to pursue an investigation with respect to the Situation in Iraq/UK.

In December 2020, the ICC Office of the Prosecutor announced that it would not pursue an investigation with respect to the Situation in Iraq/UK concerning alleged war crimes committed by UK armed forces in Iraq between 2003 and 2009. In its decision, the Office of the Prosecutor determined that there was a reasonable basis to believe that members of the UK armed forces committed war crimes in Iraq. However, under the complementarity assessment, the Office of the Prosecutor found that the relevant potential cases were inadmissible, concluding that the UK authorities are not unwilling to genuinely conduct investigations and prosecutions vis-à-vis the alleged crimes, pursuant to Article 17 of the Rome Statute.

With the support of UpRights, ECCHR filed a request seeking the ICC Prosecutor to reconsider the decision to close the situation in Iraq/UK or, in the alternative, to seek a ruling from the Pre-Trial Chamber under Article 19(3) of the Rome Statute to review the approach adopted with respect to the complementarity assessment.

The ECCHR’s request articulates eight legal and factual errors that affected the outcome of the decision of the Office of the Prosecutor. According to the ECCHR, in addition to an inadequate analysis of the circumstances of the UK’s deficient domestic investigations, the Office of the Prosecutor also adopted an incorrect interpretation of the complementarity regime set by the Rome Statute and applied an excessively high standard of proof regarding the UK’s unwillingness to prosecute alleged war crimes. The request further submits new facts and evidence which warrant the reopening of the preliminary examination under Article 15(6) of the Rome Statute.

The ECCHR’s request represents a unique effort to challenge a decision by the ICC Prosecutor not to proceed with an investigation pursuant to Article 15(6) of the Rome Statute.

The Rome Statute does not provide victims and civil society organizations with a remedy to directly challenge the Prosecutor’s decision not to open a proprio motu investigation. Article 53(3) of the Rome Statute, instead, only gives referring States or the Security Council the power to request the Pre-Trial Chamber to review a decision of the Prosecutor not to proceed with an investigation. The lack of statutory remedies for victims and civil society organizations, who are essential information-providers for the Court, represents a problematic unbalance and can be seen as a gap in the Rome Statute. The ECCHR’s request attempts to fill this gap and UpRights is pleased to have contributed to this important effort to ensure justice for victims.

Read the ECCHR Press Release

The blogpost published on OpinioJuris, by UpRights co-founder Alessandro Pizzuti and entitled ICC Situation on Libya: The ICC Prosecutor Should Look into Libyan Criminal Proceedings Concerning Crimes Committed Against Migrants is now available in Arabic.

The article discusses the International Criminal Court’s (ICC) investigation in Libya and explains why the ICC Prosecutor should look into Libyan criminal proceedings concerning crimes committed against migrants.

In a blogpost published on OpinioJuris, UpRights co-founder Alessandro Pizzuti discusses the Prosecutor’s recent separate determinations concerning the proprio motu preliminary examinations of Ukraine and Nigeria.

In both situations, the Prosecutor concluded that the criteria for opening an investigation under Article 53 of the ICC Statute were met. However, the Prosecutor stated that she will not immediately proceed with a request to initiate investigations in the respective situations due to budgetary constraints and considerations related to prioritisation of the OTP’s workload.

While no doubt grounded on legitimate practical concerns, such considerations do not seem to form part of the Prosecution’s discretion on whether and when to file a request to open an investigation pursuant to Articles 15 and 53 of the ICC Statute. This post contends that instead the proper stage to make an assessment concerning the prioritisation of the OTP workload is during the investigation phase rather than during the preliminary examination.

Without any clear, set parameters, decisions prioritising between different potential investigations to be initiated following the preliminary examination phase can lead to a precarious path whereby situations ready for investigation are put indefinitely on hold (essentially left in limbo) without the possibility for such a course of action to be challenged or otherwise subject to external oversight. This seems to be inconsistent with the overall structure of the Statute and in particular of Articles 15 and 53 of the ICC Statute. If necessary, such selection (with clear and transparent prioritisation criteria) should instead be conducted at the investigation phase where the Prosecutor is in a better position to secure evidence for trial as well as reach a more informed determination regarding which situations (or cases) warrant prioritising over others.

At the same time, States Parties have a specific duty to match the budget requests (and needs) of the Prosecutor in light of the current and expanding workload, as in any domestic judicial system. The operational hurdles faced by the Prosecutor due to her office’s capacity are concrete and undeniable. To manage the challenges faced, the Prosecutor requires the support of States and other relevant actors. The ICC Chambers have frequently cited or referred to the decisions from human rights treaty bodies to emphasise the Prosecutor’s obligation to carry out an effective investigation. We should not forget that such decisions were directed at the States as a whole and not only the relevant Prosecutor that conducted the investigations.