Libya is simply where the crimes are committed, but the impact cascades over to other countries
Alessandro Pizzuti is a lawyer with significant experience in international criminal law, human rights law and international humanitarian law. He was previously a legal officer with the Special Tribunal for Lebanon Office of the Prosecutor as well as Chambers of the International Residual Mechanism for Criminal Tribunals, International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda. Alessandro has also practiced in Italy with the Studio Legale Bauccio & Associati where he specialised in litigation concerning counterterrorism and human rights before Italian courts, the European Court of Human Rights and the UN Ombudsperson to the Security Council.
In 2020, he co-founded UpRights, a non-profit organisation whose mission is to assist and help civil society organisations develop investigations and legal proceedings concerning human rights violations and international crimes. The organisation adopts a cooperative approach, by providing technical support and helping design investigative strategies. UpRights was established by Alessandro, Valérie Gabbard and Asa Solway. The three were former colleagues at the International Criminal Tribunal for the Former Yugoslavia.
Interview conducted by Emma Hutchinson Sakai (2022)
The interview was conducted in the spring of 2022 and has been edited for clarity
Background: On 18 January 2022, UpRights, Adala for All and StraLi filed an Article 15 Communication to the International Criminal Court (ICC) concerning crimes committed against migrants and asylum seekers in Libya between 2017 and 2021. Specifically, the Communication requests the Prosecutor to investigate crimes amounting to crimes against humanity and war crimes committed by Libyan armed groups against migrants and trapped in detention centres, under the nominal control of the Department for Combating Illegal Migration (DCIM).
Update: Several months after the interview, on the 7 September 2022, the Office of the Prosecutor announced their formal membership to the Joint Team aimed at supporting investigations into crimes against migrants and refugees in Libya, joining relevant national authorities from Italy, the Netherlands, the United Kingdom of Great Britain and Northern Ireland, and Spain. This Team is also supported by Europe. By joining the Joint Team, the OTP seeks to further strengthen the basis for independent investigations.
Libya is not a State Party to the Rome Statute, but on 26 February 2011, the United Nations Security Council unanimously referred the situation in Libya since 15 February 2011 to the ICC in Resolution 1970 (2011). Therefore, the ICC may exercise its jurisdiction from this date onwards. Could you please explain why 2017 was identified as a starting point in the Communication submitted to the ICC by UpRights, Adala for All and StraLi?
As most of what we did in the Communication, it was a matter of selectivity. The way migration was governed in Libya and how the smuggling sector operated changed over time, experienced radical changes. Under Gaddafi, the migrant smuggling sector was basically a protected market. Gaddafi allowed certain families to carry this market, which allowed migrants to reach the coast, then helped them reach Europe and sometimes detain them, after the Law No.19 of 2010 was passed. Due to this law, illegal migrants could be subject to detention simply due to illegal entry into Libya. So then, after the fall of the Gaddafi regime, the sector opened to everybody and everybody tried to take a piece of it, especially with the influx of Syrian refugees. At this point, armed groups were trying to take control over the market in different ways. First, by creating a protected market as Gaddafi had previously done, but obviously it was more dispersed. Initially, each armed group allowed smugglers to pass through their area of control by paying a fee, but little by little, these armed groups gained total control of the market and resources.
In 2017, the situation changes. A new government, the Government of National Accord (GNA) is pressured by Europe to stop the influx of migrants. Within the armed groups, there was an understanding that there was a shift in the governance of migration. This led to the armed groups who were working in the migrant smuggling sector to adopt an anti-smuggling stance. The armed groups wanted to be linked to the government, so they offered services to participate in the governing of migration and this resulted in the famous DCIM detention centres. DCIM is an institution under the Libyan Minister for Interior Affairs, but in reality, these detention centres are operated by armed groups who also participated in various phases of the war in Libya.
Also from 2017, there is a shift in the way European states govern migration flows. From 2017 onwards, some European states began cooperating with the Libyan Government and empowering the Libyan Coast Guard to intercept migrants at sea and take them back to Libya. In 2011, there was a case at the European Court of Human Rights, the case of Hirsi Jamaa and others v. Italy, which determined that the return of migrants by European states was a violation of Article 3 of the European Convention on Human Rights. So instead of performing the rescue missions themselves, European states now go around and support the Libyan Coast Guard to intercept migrants in the Mediterranean. Taking into consideration these various shifts, we saw that 2017 was a little bit of a game changer for many reasons.
You have identified these abuses in Libya to constitute war crimes and crimes against humanity. How did you interpret the jurisdiction of the ICC and identify the crimes?
Libya is not a State Party, therefore the ICC Prosecutor can only operate within the perimeters of Resolution 1970. The question is to always ask how to interpret resolution 1970, because paragraph 4 simply says that the ICC has jurisdiction over crimes and the subject matter from 15 February 2011. It is open ended and doesn’t say when the jurisdiction ends, and it is also applicable to everybody except to nationals of non-State Parties who are operating under the guise of UN missions (paragraph 6 of the Resolution). Therefore, the resolution was referring to what was happening at the time in Libya in 2011.
Now, conceptually, when the Security Council conferred to the ICC jurisdiction over the situation in Libya, the question is to understand what the situation is about, generally being defined as a situation of crisis, an event that aggregates crimes around itself. In the preamble, there was a reference to the actions of Gaddafi, but there wasn’t an explanation of its geographical, personal, and temporal jurisdiction. In 2017, the Pre-Trial Chamber offered an interpretation of this resolution to say that the Security Council conferred jurisdiction to the ICC in relation to crimes linked to any ongoing conflict in Libya and excluding other potential international crimes not related to the conflict. Therefore, the conflict is pivotal to establish the jurisdiction. While the decision of the Pre-Trial Chamber does not provide extensive reasoning on this point, we understood that jurisdiction continues after the revolution, after the death of Gaddafi and therefore it applies to crimes committed in 2016 and 2017. But this extension is limited by the connection with the armed conflict.
When we understood that there needed to be a link with the armed conflict, we had a light bulb moment. A link with armed conflict is also an element of war crimes under the Rome Statute. Thus, in the specific situation in Libya, this link is important for the jurisdiction and at the same time, this link is also important to qualify the abuses of war crimes. So, we considered that an analysis of the correlation between the abuses of migrants and the conflict could establish the ICC jurisdiction and the qualification of the crimes at the same time. Therefore, as soon as we had this idea, we were able to identify war crimes, then automatically say that there is jurisdiction to investigate such conducts.
I want to explain our thought process, because in fact it was not so easy to identify all the elements. We identified crimes against humanity after we looked at war crimes as the crime base. Through our investigation, we were able to draw up a selection of crime bases and we saw that migrants in Libya were being subjected to different abuses which led us to look at the correlation between these abuses and the conflict. We then found that the instances at the DCIM detention centres were a good example to show this correlation. Why? Because we found evidence that these detention centres were controlled by armed groups, that these armed groups were participating in hostilities and we saw that these armed groups also use migrants for the purpose of the conflict. Migrants were forced to clean, move weapons, or sometimes they were also forced to participate in the conflict. In some cases, the armed groups also acquired control of the camp through conflict. Meaning, sometimes they have to defend themselves from other groups who want to gain military control over the detention centre and establish their control through fighting.
Following on from the previous question, were victims involved in the process of drafting the Communication?
We thought about including victims, but then we found that at this stage of our work, we had to present something to the ICC which we were not even sure the ICC would accept. Therefore, relying on the evidence from victims and witnesses, could be dangerous for the victims in terms of re-victimisation. We found that the available open source information was sufficient, and the information was evaluated according to our condition and standards. Furthermore, we didn’t want to raise expectations. Legally, it's also problematic, because the more a witness is questioned, their statements may change and impact the reliability of the evidence. It is better to avoid that unless you know what you want to do.
And who are the victims?
When working on the Libya Communication, we speak about migrants and I think this is slightly problematic, because the term ‘migrant’ has a dehumanising effect and obscures who these people are. I’m a technical person, but it’s terrible that each individual who has their own story, who comes from places such as Nigeria, Bangladesh, Eritrea, Mali are grouped collectively under the word ‘migrant.’ Also, in my opinion, the crime isn’t limited to Libya. Libya is simply where the crimes are committed, but the impact cascades over to other countries. Families and entire communities are victimised as a result of what is happening in Libya, for example, when they receive demands for ransom with videos of their son being tortured. This raises interesting questions of jurisdiction, but basically what I want to say is while this Communication is about Libya, in reality it’s about all these countries that migrants bring with them.
Did you also consult any previously submitted Communications?
There was another Communication filed in 2019 by Shatz and Branco that was a good starting point for us to read and understand the situation. However, their approach started from the responsibility, then the crimes. We did exactly the contrary, starting from the crimes, then going to the responsibilities.
And another feature which I found really interesting was identifying the responsibility of Italian and Maltese officials. And the term "pocket of impunity" has been used in referring to the practices of European officials. How, what do you think would be what will happen next if the prosecutor does decide to pursue an investigation?
First of all, as everything we wrote in the communication, these are potential abilities. This is simply a way to start an investigation and things might progress. The standard is very low in terms of Communications being submitted to the Prosecutor. It all depends on the interest and the opportunities available. And clearly, the margin of discretion that prosecutors have during an investigation is enormous.
I believe though that the possibility of an investigation or raising the question of responsibility may hopefully change the actions of the respective government institutions. As well as create a sensitivity to this issue, since there has been a recession [of sensitivities] at the domestic level. And to look at the current standards critically and articulate a standard that should be applied.
Historically, international criminal law addressed crimes arising in the context of ethnic conflicts and repressive dictatorships. But in this century, we are seeing harm and suffering as a result of deeply rooted structural failures, such as failed states and the mass movement of people. In Libya, we see both. Do you believe that the ICC and international criminal law are capable of responding to transnational challenges?
There is no clear answer. Legally, there are different ways of finding jurisdiction, as we have seen with Myanmar. There are many possibilities to have jurisdiction over transnational crimes, but there isn’t the possibility to scrutinise all at the same time and receive cooperation. But this is a political issue that countries won’t accept cooperation. There is another way to legally assess this sort of multi-state activities, like drug trafficking through transnational tracks, which is also considered an international trend. So especially with crimes against humanity, there is a contextual element.
For example, consider that there is a country with state oppression and the repression of individuals for political reasons. These crimes qualify as a crime against humanity because there are abuses like torture and killing being carried out in the context of a systematic or large scale attack against the population. If this country also seems interested in repressing the diaspora outside of their country or domain, or the abuse of one person that has escaped from this country, then the crime can be linked to the same crimes against humanity because it is part of the same context. Automatically, you have the possibility to explore this like a multi-jurisdictional crime.
Another example, what happened at the Bataclan could also be considered a crime against humanity because of its links with the crimes committed by ISIS in Syria. The attack was conducted by ISIS members trained in Syria. So we can say that this attack, although committed in another country, follows the same pattern as others and you can identify an international crime. To identify these crimes, I suggest never to be creative and look at the situation in a very narrow way and see whether you have leeway or not. You can think similarly for cyberattacks, which involve multiple countries.
So there are basically two ways. Firstly, looking at whether the conduct requires a transnational or cross border activity, such as in the case of the ICC Situation in Myanmar/Bangladesh. Secondly, to look at whether they are trying to identify similarities in crimes committed in multiple states, you still have the fog or the cloud of the contextual element that allows you to examine in that way.
There is also another way, which is to look at complicity in international crimes. So acts that occur in a State Party, which have direct relevance to crimes committed in a non-state party. In this case, the ICC may also have jurisdiction. That’s why in our Communication, we took this alternative and highlighted that if the OTP could not find that the crimes committed against migrants fall within the jurisdiction of the Court according to UNSC Resolution 1970, then the conducts of Italian and Maltese authorities should be nonetheless investigated as they have occurred in the territory of State Parties. So that’s why a form of complicity in my opinion is highly important. And possibly, through complicity, there is a possibility that we can ensure better cooperation from the State.
About the interviewer: Emma Hutchinson Sakai graduated from a Master in International Security at Sciences Po Paris, with concentrations in migration and human rights. Her research interests include, conflict, security, migration and technology, and their intersections. Previously, she worked at the International Institute for Strategic Studies and the United Nations University Centre for Policy Research.
Image: Some broken clandestine boats in Lampedusa harbor, on July 17, 2013 in Lampedusa, Sicily, Italy. Shutterstock: Natursports