Could the ICC prosecute European officials over Libya migrants?

In 2017, then Prosecutor of the International Criminal Court Fatou Bensouda delivered a message to the global powers assembled at the UN Security Council: Libya had become a “marketplace for the trafficking of human beings”, and that those states with influence and resources must address the horrific atrocities being committed against migrants.

Ms Bensouda added that she was prepared to investigate crimes committed against migrants in Libya. Her announcement piqued the interest of many advocates around the world: could the ICC help to address atrocities committed against migrants in Libya and on the Mediterranean Sea?

As Libya descended into civil war in 2011 and the regime of Col Muammar Qaddafi threatened to “exterminate” those who rose in opposition to his rule, the UN Security Council referred Libya to the ICC. In response, the Court opened an investigation the situation in Libya, focusing on the alleged atrocities committed by the regime against civilians. Three arrest warrants were ultimately issued: for Qaddafi, his intelligence chief Abdullah Al Senussi and his son, Saif Al Islam Qaddafi.

Other warrants have been issued since, but no Libyan national has ever faced ICC justice. Muammar Qaddafi was killed in 2011. Al Senussi is toiling in a Libyan prison, having been convicted of crimes committed during the war. And Saif Al Islam disappeared from the public eye for a decade, only to resurface this year as a candidate in the country’s upcoming presidential elections.

The ICC has thus been left empty-handed, with no Libyan suspects surrendered to The Hague. In the meantime, Libya has experienced significant turmoil as varying factions vie for power and carve out regional spheres of influence.

The instability has been a boon to the militias and criminal networks operating in the country, including those who identified human trafficking as a lucrative business. They operate by trafficking migrants from sub-Saharan Africa to the shores of Libya. Asylum seekers are sold on the prospect of safely making the journey across the Mediterranean and into Europe. Many don’t make it. Many others are abused – tortured, raped, assaulted or arbitrarily detained – along the way.

The cost of being trafficked is exorbitant. Migrants pay thousands of dollars for the chance to reach Europe. While a flight would cost a fraction of the amount migrants pay to traffickers, European states penalise any airline carrier that allows undocumented migrants onto their aircrafts and into Europe. It is worth taking stock of the consequences of this approach: European migration-control policies drive asylum seekers into the hands of the very traffickers they widely condemn.

For many, the injustice is untenable. A number of experts and NGOs have thus submitted filings at the ICC claiming that the abuses against migrants constitute international crimes and pleading with the Court to make good on its pledge to open an investigation.

Demands to open an investigation focus on two geographical areas – Libya and on the Mediterranean – as well as Libyan actors and authorities from the EU who are widely viewed as being complicit in abuses against migrants.

Libya is not a member state of the ICC. But it is argued that the Court retains jurisdiction in the country because of the referral of the country by the Security Council in 2011 and the purported connection between the current violence against migrants and the 2011 Libyan civil war. Should the ICC intervene, leaders of militias and networks engaged in trafficking and abuses could be targeted. So, too, could government authorities.

Numerous reports, for example, show that the Libyan Coast Guard is responsible for capturing migrants off the coast of the country, detaining them in deplorable facilities and leaving them vulnerable to traffickers.

The Coast Guard’s alleged responsibility for migrant crimes is also the connection to the responsibility of European actors for migrant abuses. For years prior to the Libyan civil war, European authorities worked with Qaddafi to stem migration flows into Europe from Libya. Italy, for example, paid billions of dollars to Qaddafi to stem migration through Libya and across the Mediterranean Sea.

The EU continues to co-operate with Libyan authorities, helping to fund the Coast Guard and equip it with the means to capture thousands of migrants attempting to cross the Mediterranean and return them to Libya through a controversial policy called “pushbacks”. The reason that EU authorities use the Libyan Coast Guard, as opposed to their own border control agencies, is precisely because the practice of capturing and returning migrants to Libya without processing their asylum claims is prohibited under international human rights law. The EU outsources this nasty bit of work to Libyan actors.

Should it be determined that migrant abuses are being committed on a large and systematic scale, the ICC could investigate numerous crimes – torture, arbitrary detention, sexual violence, forced labour and so on – as crimes against humanity. In addition, the Court can investigate and prosecute human trafficking as an international crime. While it has generally focused on those directly involved in atrocities, the ICC can also investigate those who aid and abet or are otherwise complicit in committing international crimes.

Are EU and Libyan authorities in the ICC’s crosshairs? Despite the steady stream of requests that the Court’s Prosecutor investigate these crimes, it is far from clear that they are. During a recent speech at the Security Council, the new ICC Prosecutor Karim Khan appeared to stress co-operation between states and international bodies like the Court rather than an investigation into migrant abuses. The ICC also works with European actors to address human trafficking and it would appear, on the surface at least, unlikely that it would investigate some of those same authorities for crimes against humanity.

Just because the Court has had no success in affecting justice in Libya to date, however, does not mean it should not try to address the litany of atrocities migrants face. Over its 20-year history, the institution has often focused on crimes that resonate with global audiences: the use of children in hostilities, sexual and gender-based violence and the destruction of cultural heritage sites as a war crime. Few scourges deserve greater attention than the ongoing abuse of migrants.

The ICC will not solve this problem alone; it offers no panacea. But it has an opportunity to play a meaningful role, by expressing solidarity with migrants, changing the narrative around migration and focusing attention on the harms experienced by refugees. Above all, it might bring a degree of justice for those who wantonly abuse those taking massive risks for the hope of what many of us take for granted: a life of dignity.