An opportunity for the ICC to investigate European crimes against humanity

At the end of November 2022 the ECCHR, a German NGO, has reported to the ICC some high-ranking officials from EU member States and agencies (most notably Matteo Salvini and Marco Minniti, former Italian interior ministers, Federica Mogherini, former European high representative for foreign affairs, and Robert Abela and Joseph Muscat, current and former Maltese prime ministers) for crime against humanity over their responsibility for the pushbacks of asylum seekers back to Libya between 2018 and 2021. The communication filed against them urges the Office of the Prosecutor to investigate on the return of migrants to Libyan detention centres, that in the ECCHR’s eyes constitutes a crime against humanity in the form of severe deprivation of physical liberty as stated by Article 7(1)(e) of the Rome Statute.  

To qualify as crime against humanity before the ICC, the alleged criminal conduct must occur as a part of a widespread or systematic attack against civilian population, involving multiple commission of acts pursuant to or in furtherance of a State or organisational policy to commit suck attack. It means that a State must have promoted or encouraged a policy aimed to directly attack civilians. Moreover, under Article 30 of the Rome Statute, to be held criminally responsible the mens rea requires intent to commit a crime and knowledge that the action would cause the commission of a crime. The mode of liability involved in this case is co-perpetration, requiring the existence of a common plan controlled jointly by persons that are aware of its consequences and that intentionally provide an essential contribution to the crime.

The ECCHR argues that it exists a pattern of systematic transfer of migrants to Libya which makes them subjected to relentless international crimes, involving a course of conduct by EU officials that is part of a broader system of exploitation. They assert that it exists a common plan between officials from EU member States and agencies and Libyan authorities to intercept migrants, with the aim of detaining them in Libya. In their opinion a criminal enterprise has been developed in Libya to exploit the asylum seekers, making them subjects of physical violence and abuses in detention centres: severe deprivation of migrants and refugees’ physical liberty, under the coordination of Libyan actors and officials of EU member States and agencies, begins when they are intercepted at sea, and continues as they are returned to Libya, where they are systematically transferred to detention facilities in violation of the principle of non-refoulement. [1]  

The essential contribution to prove co-perpetration is inferred from the institutional cooperation established between the EU and Libya, and the material and operational support provided to the Libyan coastguard. In 2017 Italy entered in a bilateral agreement with Libya (since then it has been periodically renewed) aimed at funding, equipping and training the Libyan coastguard to intercept migrants’ boats in the Central Mediterranean route and to bring them back to the African coast; the EU supported this deal, collaborating with Libyan actors to enhance their capacity-building. At the same time Libya pursues a policy, based on Law No. 19 of 2010, that authorises detention and forced labour of migrants and refugees: recently the OTP, which is investigating the situation in Libya since 2011, assessed that gross human rights violations perpetrated over migrants may credibly amount to crimes against humanity. [2] Therefore, Italian and Maltese politicians are accused of contributing to the attack against migrants because, through interceptions and returns of ships entered within their own SAR zones, they are acting in accomplishment to the commission of atrocities amounting to international crimes.

Italy has already been found in breach of international obligations for having returned people in distress at sea back to an unsafe location. As recognised by the Grand Chamber of ECtHR in Hirsi Jamaa et al. v Italy, the Italian authorities publicly declared the existence of a push-back policy in cooperation with Libya, with the intent of tackling irregular migration. In light of the institutional agreements in place between the States, the Grand Chamber concluded that interceptions and returns cannot be subsumed under legitimate border control operations, but amount to violations of the prohibition of collective expulsion of aliens enshrined in Article 4 of Protocol No. 4 to the ECHR.

Despite it would be challenging to hold accountable high-ranking officials, the ICC faces a unique opportunity. After all the criticism caused by the alleged double standard in the delivery of international justice, with a disproportionate focus on African countries, this time the court has the chance to enter into the merit of a case regarding a controversial topic such as migration that involves European nationals. Although Europe is among the best represented regions at the ICC, with all the EU member States as signatories to the Rome Statute, the OTP has never formally investigated any crime committed under their jurisdiction. Only one time it was opened a preliminary examination against nationals of an EU country, namely members of the UK armed forces accused of having committed war crimes during the Second Gulf War against prisoners under their custody in facilities on the Iraqi soil. Despite there were reasonable basis to believe that they committed the alleged abuses, the OTP decided not to open an investigation because the potential cases arising from the situation were deemed to be not admissible due to the principle of complementarity: it was concluded that the UK authorities had not been unwilling to genuinely carry out relevant investigations or prosecutions, although only one British soldier was convicted for the crimes perpetrated in Iraq.

However, considerations are different for what regards this case. Two factors play against a possible deferral to national courts: some officials enjoy immunities, and the fact that, for example, the Memorandum of Understanding between Libya and Italy is still in place indicates that the policy at the foundation of the alleged crimes continues to be pursued at the State level. The ECCHR’s communication makes a call for transparency, exhorting the ICC to investigate over EU agencies such as Frontex because it is the only institution that may obtain confidential information that is otherwise unattainable, with civil society and national prosecutors having no power of scrutiny over it. Delegating prosecution to national authorities, the preferred approach in relation to crimes against migrants, has proven to be insufficient. The OTP should therefore open an investigation not only to end impunity for gross violations against migrants, but also to send a powerful message to European actors: that nobody can implement unlawful policies without facing an individual scrutiny through the lens of criminal law. This might be a solid case that would strengthen the ICC credibility against its alleged endorsement of European imperial values, guaranteeing victims’ right to justice and determining a different way to address the management of migration flows.

By The European Institute for International Law and International Relations.