By: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL
Abuses committed or tolerated by authorities against foreigners with an unauthorized stay, also referred to as “irregular migrants,” are common. Cases like these have mostly been litigated by civil organizations under human rights law. However, there are situations where international criminal law can also serve as a tool to seek justice. An example of this is Libya, where NGOs have denounced militias’ practices of targeting irregular migrants through torture, kidnappings, forced recruitment, and killings.
In order to seek accountability for this situation, NGOs have asked the International Criminal Court (ICC) to investigate the situation in Libya. On January 17, 2022, a group of NGOs, composed of Adala for All, StraLi, and UpRights, presented a communication under Article 15 of the Rome Statute to the ICC, asking the Office of the Prosecutor to investigate potential crimes in Libya. This contribution examines the turn from international human rights law (IHRL) to international criminal law (ICL) in light of this particular situation in Libya.
The situation in Libya
Libya has become one of the predominantly cited examples of abuse committed with impunity as a result of pushback policies, aimed at deterring migrants from reaching Europe through unauthorized sea routes. Due to its geographical location, Libya is a transit state through which each year an estimated 180,000 people from multiple states, mainly Eritrea, Somalia, Ethiopia, Sudan, Syria, Palestine, and Iraq, travel on their way to Europe. In order to keep these individuals from reaching the European Union (EU), the EU Agency known as “Frontex,” as well as the Italian and the Maltese governments, provide funds, training, and boats to the Libyan Coast Guard. However, the armed conflict that has taken place in Libya for a decade has complicated and worsened the situation, as militias have become involved in these border control operations.
According to the latest report of the UN Support Mission in Libya, “more than 12,000 detainees are held in 27 prisons and places of detention across Libya.” However, thousands of additional detainees do not appear in official statistics and are held illegally and often in inhumane conditions in facilities controlled by armed groups, or “secret” facilities, unable to challenge the legal basis for their continued detention. It has been well-documented that serious abuses occur in these detention centers, such as ill-treatment, torture, sexual violence, forced labor, forced disappearance, and murder, all in the context of indefinite detention in inhuman conditions. According to Alessandro Pizzuti, co-founder of UpRights, in Libya the parties to the conflict target migrants because they perceive them as a crucial resource for carrying out their political and military objectives.
Human rights violations or international crimes?
IHRL and ICL are part of public international law, and their scope covers the relationship between individuals and the state. Both of them deal with abuses committed by state officials, either through their acquiescence, their omission to comply with their obligations or through their direct actions. Their enforcement is primarily the responsibility of national authorities. ICL’s scope is, in fact, broader and also imposes obligations on non-state actors. The application of IHRL and ICL is not mutually exclusive; on the contrary, these specialized branches of law converge and are interdependent on each other. However, IHRL relates to the responsibility of the state, while ICL is concerned with individual criminal responsibility. Therefore, there are different mechanisms through which they can be enforced whenever domestic remedies have failed to be effective.
Under IHRL, several international judicial bodies have been created around the world: the European Court of Human Rights, the African Court of Human Rights, and the Inter-American Court of Human Rights are the main examples of these. The United Nations has also developed ten quasi-judicial treaty bodies that observe the enforcement of their corresponding human rights treaties, such as the United Nations Committee Against Torture, the Human Rights Committee, and the Committee on the Elimination of Discrimination against Women, among others. These are the main regional and international mechanisms through which individuals can seek redress when they believe there has been a violation of their human rights.
Under ICL, the main judicial body is the International Criminal Court (ICC). The ICC is an independent tribunal governed by the Rome Statute with jurisdiction over war crimes (WC), crimes against humanity (CAH), and genocide committed or tolerated by state and non-state actors from states party to the Rome Statute, or committed on the territory of a state party. Other ad hoc courts have previously been created to investigate specific situations in a state, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
Trying to access redress under ICL has important consequences, both practical and symbolic. On the practical side, it can be much more difficult to access justice at the ICC, in contrast to other international human rights judicial bodies. In the history of the ICC, the Office of the Prosecutor has opened twelve official investigations and is currently conducting an additional nine preliminary examinations, and only 46 individuals have been indicted. On the other hand, in 2021 alone the European Court of Human Rights released 1,105 judgments. Additionally, the heightened burden of proof in ICL means that cases tend to focus on specific incidents, perpetrators, and victims, whereas IHRL cases can be much broader in scope. Even if a case is brought, victims under ICL may be excluded just because there is less evidence concerning the specific incident in which they were victimized, which may not be the case in a court of human rights. However, on the symbolic side, justice is reached in different terms under IHRL and ICL. Whereas human rights judicial bodies reach judgments that condemn states in abstract terms, ICL has the potential to point to the individual responsibilities of the persons who commit the crimes.
Until now, the abuses committed in Libya against irregular migrants have been addressed under IHRL. In the case of Hirsi Jamaa and Others v. Italy of the European Court of Human Rights, the situation in detention centers was recognized to amount to ill-treatment under Article 3 of the ECHR, enough to condemn Italy for returning people at sea to Libya. This has been a positive development for migrant and refugee rights in Europe; however, under the framework of IHRL, only the state of Italy was condemned for the push-back operation, and not the individual officers who participated in the operation nor the authorities in charge of the detention centers where abuses were being committed. The victims of this case did not get to see the people who mistreated them on trial, nor do they have any assurance that they faced any consequence for their actions.
The group of NGOs that presented the communication to the ICC argue that the case of the situation in the Libyan detention centers amounts not only to a mass violation of human rights but also to crimes against humanity and war crimes. Under this logic, the situation now also falls under ICL. If the situation in Libya is to be investigated by the ICC, individual responsibilities could arise for the authorities implicated in the operations of migrant detention centers.
Conclusion
The consequences of shifting from international human rights law to international criminal law to seek accountability for the ongoing situation in Libyan detention centers could be many, but one stands out: having the ICC criminally investigate the people responsible for the crimes being committed at the gates of Europe.