The following is the second installment of a two-part guest post on atrocities against migrants by Alessandro Pizzuti and Alice Giannini. 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.
In the first part of this post, we reconstructed some of the challenges behind the International Criminal Court (ICC) Prosecutor’s conclusion that the abuses against migrants in Libya may qualify as war crimes and crimes against humanity. This second post will focus on some of the implications underlying such a conclusion in terms of responsibility and duties of states to prosecute such crimes.
The war crimes and crimes against humanity suffered by migrants in Libya’s Department for Combating Illegal Immigration (DCIM) Detention Centres are the result of a cyclical violence. From a purely causal perspective, such crimes are predicated on the contributions of multiple actors, which include: (i) traffickers and smugglers facilitating the journey to Libya; (ii) armed groups in charge of DCIM detention centres directly responsible for abuses; (iii) staff of Libyan Coast Guard (LCG) ensuring the interception and transfer of migrants to detention centres; and (iv) European actors assisting the LCG to redirect migrants to Libya.
The contribution of European actors – including Italian and Maltese authorities – in bolstering the ability of the LCG to intercept migrants at sea through the provision of assets, equipment, maintenance, and trainings, has been attested to by multiple reports of international organisations and NGOs. These include the UN Secretary-General (here, paras.18-21, here, para.21), OHCHR (here, p.23), UNSMIL (here, pp.14-15), the COE Commissioner for Human Rights (here, pp.20-21 and here, pp.23-24), Amnesty International (here, pp.9-14 and here, pp.11-13, 22-24), and ECCHR/FIDH/LFJL (here, pp.41-46). Official documents from the Italian MFA confirmed the role of Italian officials in coordinating the LCG during rescue missions (here, p.24).
State responsibilities and duties to punish international crimes
While the qualification of the crimes committed against migrants in Libya as war crimes and crimes against humanity has symbolic value, it also carries very specific practical implications. Once these abuses are elevated – qualitatively or quantitatively – to the status international crimes, they are no longer confined within the sometimes artificial schemes of (extra)territorial jurisdiction and admissibility that govern human rights violations. This is especially important when such crimes are the result of conduct that is committed across national borders or which occur in failed States.
Since it engages personal, rather than State responsibility, international criminal law transcends state borders. It reconstructs the fragmented picture offered by the jurisdictional paradigm of human rights obligations of States into a more composite and plain dynamic. This dynamic is based on the effects of individual contributions to specific crimes, considered as whole. Under the ICC legal framework, such contributions are articulated through the modes of liability set out in Article 25(3) of the ICC Statute.
In the case of the crimes committed against migrants in Libya, specific emphasis should be put on Article 25(3)(d)(ii) of the ICC’s Rome Statute, which criminalises any form of contribution to the commission of a crime under the ICC Statute by a group with a common purpose provided in the knowledge of the group’s intention to commit the crime. Considered a residual form of accessorial responsibility, Article 25(3)(d) focuses on the assistance, either internal or external, to a group of persons acting with a common purpose. In terms of the actus reus and mens rea, the requirements of Article 25(3)(d) of the Statute are lower than the other forms of liability set forth in Article 25(3).
As to the actus reus, as confirmed by the jurisprudence of the ICC, any level/degree of contribution engages liability under this provision (Al Hassan CD, para.948). It needs simply to have had an effect on (or influence on) the commission of the crime in terms of strict causation, thus capturing remote or limited conduct which contributed to the crime. It is irrelevant whether the accused acting under Article 25(3)(d) is a member of the group (Katanga TJ, para.1631) and the contribution to the crime does not need to be made through the material perpetrators themselves, i.e., a direct nexus between the conduct of the accessory and that of the material perpetrator need not be established (Al Hassan CD, para. 945). As to the mens rea, Article 25(3)(d)(ii) does not require the intention to commit the underlying crime, but only the mere knowledge of the group’s intention to commit it (Katanga TJ, para. 1638).
With that in mind, the Communication filed by UpRights, StraLi, and Adala for All relied on Article 25(3)(d)(ii) to assess Italian and Maltese authorities’ assistance to the LCG (Communication, paras.432-512). As noted above, this form of support has been a crucial factor in the ability of the LCG to operate and redirect migrants to DCIM detention centres where they have then been subject to war crimes and crimes against humanity. Their support and was provided in the knowledge of the intention of the armed groups to commit such crimes. In light of the causal connection with the crimes migrants suffered in the detention centres, the contribution of Italian and Maltese authorities may attract relevant responsibilities under Article 25(3)(d)(ii).
Similar arguments can be made for any other form of assistance following a similar scheme, whether provided by private individuals, State authorities, or officials of international organisations, including agencies of the European Union. The qualification of the crimes committed against migrants as international crimes necessitates greater scrutiny, and eventually a review, of any kind of conduct of assistance, even if it took place in other States or on the high-seas. This point is necessary to understand the effects of said conduct on the atrocities committed against migrants once disembarked in Libya. Potentially, they may be qualified as a form of contribution to the crimes. In this regard, the announcement of the German Government to suspend its training program to the LCG staff due to the “unacceptable behaviour by individual units of the Libyan coast guard toward refugees and migrants” is notable.
States’ duty to investigate and punish international crimes renders such scrutiny compelling and obligatory, considering the fact that war crimes and crimes against humanity are not subject to a time-bar or immunities. The fact that the ICC Prosecutor indicated his intention to pursue an investigation concerning crimes against migrants in Libya in cooperation with national authorities should not and cannot be used as way to by-pass this exercise. As a matter of fact, under the complementarity framework of the ICC (Article 17), inaction or unwillingness/inability of States to assess relevant responsibilities in this regard may push the ICC to consider cases admissible and start a direct investigation of such conduct.
Accordingly, the Prosecutor’s conclusion that migrants in Libya may be the victims of international crimes puts European States and actors on notice. They must scrutinise their previous practices and review their cooperation with Libyan authorities in migration matters consistently with their international obbligations, as recommended repeatedly by the COE Commissioner for Human Rights (here, pp.42,44 and here, pp,26-26), OHCHR (here, pp.13, 18, 24), the UN Committee against Torture (here, paras.22-23), and the UN Fact-Finding Mission on Libya (here, para.46).
Implications in term of universal jurisdiction.
Qualifying abuses committed against migrants in Libya as international crimes also has implications in terms of States’ exercise of universal jurisdiction. As reflected in the Prosecutor’s Report of November 2021 to the UNSC, several national jurisdictions are currently engaged in investigating crimes committed against migrants targeting specifically Libyan actors and international traffickers.
Once these crimes are also characterised as crimes against humanity and war crimes, universal jurisdiction can become a tool to broaden the factual and legal spectrum of domestic investigations, permitting consideration of conduct that otherwise would not be fall within the framework of ordinary crimes. Such considerations may provide different options and new impetus to domestic proceedings and enlarge the area of accountability for such crimes.
As noted in the preceding post, the Prosecution’s qualification of crimes against migrants in Libya as crimes against humanity and war crimes is the result of a cultural shift in approaches to international criminal law, reflecting a progressive understanding of how this area of law can expand in parallel with the evolution of scenarios arising from new and complex geopolitical dynamics.
At the same time, the Prosecution’s conclusion opens new opportunities for assessing the abuses committed against migrants and refugees in Libya, broadening the scope of conduct surrounding such acts that can be scrutinised and that can potentially trigger criminal responsibility. Understanding the abuses against migrants as international crimes is a necessary starting point in reassessing and recalibrating European cooperation policies with Libyan authorities in the field of migration, in compliance with States’ international obligations.