Alessandro Pizzuti and Alice Giannini join JiC for this two-part guest post the International Criminal Court and its possible investigation into crimes committed against migrants in Libya. Alessadro is the co-founder of UpRights. Alice is a lawyer and PhD student in criminal law at the Universities of Florence and Maastricht and the Head of StraLi’s Cyber Team and a member of the International Criminal Law team.

On 28 April 2022, during a regular briefing to the UNSC 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 consistent with the Article 15 Communication filed on 17 January 2022 by UpRights, Adala for All, and StraLi, referred in the Prosecutor’s report. In this two-part blog post we first address the key role of the nexus between the crimes and the conflict in Libya. This will serve to assess, on one hand, the qualification of the crimes committed against migrants as war crimes and, on the other hand, the ICC’s jurisdiction. In our second piece, we address the potential implications of the identification of such conduct as international crimes.    

As reflected in our January 2022 Communication, the Libyan conflict has deeply affected the migration dynamics in the country (Communication, paras.24-117). Originating from the 2011 revolution, the conflict has been characterized by a lack of a functioning government and the proliferation of armed groups. The specific characteristics of the Libyan crisis have been fuelled continuous unrest, which enabled armed groups to perpetrate crimes against migrants in detention centres.

It is in this context that the mass migration through Libya towards Europe has allowed for an already vulnerable population to become the subject of international crimes. Indeed, the fragmentation of power shaped the smuggling/trafficking industry in Libya. Between 2012 and 2017, armed groups used their position to gradually take over the business of operating detention centres, including those under the nominal control of the Department for Combatting Illegal Migration (DCIM). From 2017 onwards, with growing pressure from European States to stem migration flows from Libya, the same armed groups re-focused their activities on migration control, using DCIM detention centres to prevent migrants from crossing the Mediterranean Sea.

War crimes

The abuses committed against migrants in DCIM Detention Centres between 2017 and 2021 qualify as war crimes (Communication, paras.129-402). The Communication identifies as concrete examples six DCIM Detention Centres where such crimes have allegedly been committed: Abu Salim, Tarik al-Matar, Tarik al-Sikka, Al-Mabani, Tajoura, and Al Nasr. These centres are under the effective control of armed groups and have hosted thousands of migrants, a large part of whom were intercepted at sea by the Libyan Coast Guard, and who have been subject to regular violence and abuses. Being closely linked to the conflict in Libya, these abuses meet the requirements provided under Articles 8(2)(c) and (e) of the Rome Statute.

Since the 2011 revolution, Libya has been the scene of persistent clashes between various armed groups. The conflict has been qualified as a continuous armed conflict not of an international character by the ICC and the UN Fact-Finding Mission on Libya.  Between 2017 and 2021, the armed groups in charge of the above-mentioned six detention centres subjected migrants detained therein to multiple atrocities. Victims were held in unacceptable living conditions, in overcrowded spaces with no ventilation, poor hygiene, and inadequate food. Many were murdered and systematically tortured/ill-treated. The armed groups regularly obliged migrants to pay ransoms to ensure their release. Available information also indicates instances of rape and sexual slavery. Furthermore, migrants were forced to perform military-related activities, such as moving or maintaining weapons. In some cases, they were also forced to participate in the hostilities.

The link between crimes against migrants in detention and the conflict for the purpose of their qualification as war crimes was a major focus of the Communication. Traditionally, the war crime nexus was applied to crimes committed either against civilians aligned with the warring factions or combatants hors de combat, or during the fighting.

However, the legal principles underpinning the war crime nexus are far broader than the factual application to which they have been applied so far. In order to satisfy the nexus requirement, a perpetrator’s conduct need not necessarily take place as part of the hostilities. Crimes can be temporally/geographically remote from the fighting (Ntaganda TJ, para.731). The armed conflict also need not have been causally related to the commission of the crime. Instead, it is sufficient that the conflict played a substantial part in the perpetrator’s ability or intention to commit the crime  (Afghanistan AJ, para.69). Factors indicating such a link include: (1) that the perpetrator is a combatant; (2) the victim is a non-combatant or is a member of the opposing party; and (3) the crime serves the goal of a military campaign. This list is not exhaustive. In the Al-Hassan case, the nexus requirement was considered satisfied for those crimes committed in Timbuktu after the perpetrators established their control over the city and had the ability to use force against the victims.

In Libya, migrants are neutral vis-à-vis the conflict, not associated with any factions, and the crimes to which they are subject, in most circumstances, are unrelated to the battlefield. Nonetheless, the war crime nexus is sufficiently flexible to capture these abuses. Indeed, the in-depth factual analysis of the crimes in question in the six detention centres contained in the Communication indicates the required link with the conflict in Libya (Communication, paras.214-224, 249-255, 283-290, 317-325, 349-353, 391-397). First, the armed groups in charge of the detention centres, and responsible for the crimes occurring therein, participated in the conflict. These groups have their headquarters in the same compounds as the detention centres or have military control of the area where the centres are situated. Without this control they would not be able to run the centres and commit the crimes. This establishes a clear link between the conflict and the commission of crimes.

Second, with respect to al-Mabani and Al-Nasr, the hostilities allowed the armed groups to establish and/or maintain military control over the respective centres. As to Al-Nasr, it was through fighting against another armed group that the armed group Shuhada al-Nasr maintained its control over the centre. Undoubtedly, after 2017, the ability of Shuhada al-Nasr’s members to commit abuses in Al-Nasr was directly linked to the fact that they had repelled this attack.

Third, the migrants/victims are persons taking no active part in the hostilities, other than limited moments when some were forced to fight.

Fourth, in some instances, migrants were forced to carry out military-related activities and to participate in the hostilities. This shows that the crimes served a military purpose.

Jurisdiction

The correlation with the conflict is also crucial to assess whether the alleged crimes fall within the ICC’s jurisdiction pursuant to the UN Security Council’s (UNSC) referral in Resolution 1970 (2011) (Communication, paras.513-534). The Resolution confines the scope of ICC jurisdiction to crimes committed in Libya since 15 February 2011 and excludes ICC investigations over the conduct of non-States Parties’ nationals related to UNSC operations. To limit a potential overly broad extension of the situation, judges in the Al-Werfalli case concluded that the exercise of the ICC’s jurisdiction was confined to the crimes associated with the armed conflict in Libya, identified as the situation of crisis underpinning the referral (para.23). Interestingly, this jurisdictional link echoes the war crime nexus. Thus, the considerations substantiating the war crime nexus also function to conclude that those crimes fall within the parameters of the situation.

The conflict in Libya is at the base of the manner, motives, ability, and causes underpinning the commission of such crimes which therefore fall within the jurisdiction of the ICC. They were perpetrated by members of the armed groups involved in the conflict (manner). Their commission served the purpose of the groups’ military campaigns (motives). The groups’ participation in the hostilities was pivotal in ensuring/maintaining control over the centres (ability). The conflict dynamics enabled the armed groups to dominate the smuggling sector and exert control over the centres (causes).

Conclusion

The Prosecutor’s conclusion that the atrocities committed against migrants in Libya may qualify as crimes against humanity and war crimes is welcome, as it reflects a shift in legal culture and approach to international crimes. In Libya, migrants are external to the hostilities, as they are not associated with any party involved in the conflict. They are not subjected to crimes because of their identity, but because they are perceived as a commodity to advance political and military objectives. Their neutrality and vulnerability are what lead to their victimisation.

Migration as a phenomenon has traditionally been the focus of international human rights law; but now it may be addressed through the lens of international criminal law. Such an exercise requires disentangling legal categories from the factual application to which they were previously confined, while reorienting them to a new set of facts. The international community’s ability to face this task will test whether international criminal law can meet the new challenges facing not only migrants, but the world.