Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute EU Migration Policies in the Central Mediterranean and Libya (2014-2019) “[S]erious and widespread crimes allegedly committed against migrants attempting to transit through Libya…I am deeply alarmed by reports that thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane conditions. Crimes, including killings, rapes and torture, are alleged to be commonplace… I am similarly dismayed by credible accounts that Libya has become a marketplace for the trafficking of human beings… The situation is both dire and unacceptable… my Office is carefully examining… opening an investigation into migrant-related crimes in Libya... We must act…” Fatou Bensouda, ICC Prosecutor, in a statement to the UNSC, 9 May 2017 2 Omer Shatz, Adv.1 Dr. Juan Branco, Adv.2 __________________ __________________ Students of the Capstone on Counter-Terrorism and International Crimes PSIA – Sciences Po (Paris) 2017/2018, 2018/2019:3 Paula STUURMAN, Joanna PICKERING, Elise LAURIOT DIT PREVOST, Maxine BOTH, Matthew ABBEY, Jeanette TRANG, Milena Reig-AMETTE and Francesco PINOTTI 1 Israel Bar (2009), Lecturer in International Law at Sciences Po (Paris), Yale Law School (LLM) 2 Paris Bar (2017), École Normale Supérieure (PhD) 3 This communication is the result of a pro-bono clinical project on international law and migration policies during the academic years 2017/2018 and 2018/2019, part of the Capstone on Couther-Terrorism and International Crimes, the Master Degree in Human Rights and Humanitarian Action, Public School of International Affairs, Sciences Po (IEP). We would like to thank the students for their significant contribution, as well as the scholars, lawyers and organizations that provided assistance and advice during the work on the case. 3 Executive Summary ___________________________________________________________ 8 1. Facts __________________________________________________________________ 14 1.1 Background: The Rise and Fall of EU’s Gatekeeper (1998-2015) ______________________ 14 1.1.1 The rise (1998-2011) _________________________________________________________ 14 1.1.2 The fall (2011-2015) __________________________________________________________ 18 1.2 1st policy: The Mediterranean (2013-2015) ________________________________________ 22 1.2.1 Background: Mare Nostrum ____________________________________________________ 22 1.2.2 Policy: Triton _______________________________________________________________ 26 1.2.3 Cases: The Black Week of April ________________________________________________ 35 1.2.4 Post-April 2015 evidence: Triton upgraded ________________________________________ 36 1.3 2nd Policy: Libya (2015-2019) __________________________________________________ 42 1.3.1 Background: The renaissance of Border Externalization ______________________________ 42 1.3.2 The NGOs __________________________________________________________________ 46 1.3.3 The Libyan Coast Guard _______________________________________________________ 64 1.3.4 Cases ______________________________________________________________________ 88 1.4 Human Rights of Migrants in Libya ______________________________________________ 92 2. Law ________________________________________________________________________ 103 2.1. Procedure _________________________________________________________________ 105 2.1.1. Jurisdiction ______________________________________________________________ 105 2.1.2. Admissibility ____________________________________________________________ 113 2.1.3. Interests of Justice ________________________________________________________ 119 2.2. Substance _________________________________________________________________ 124 2.2.1 1st Policy: High Seas (2013-2015) ________________________________________________ 124 2.2.1.1 Widespread, Systematic Attack, Pursuant to an Organizational Policy __________________ 124 2.2.1.2. Underlying Crimes __________________________________________________________ 134 2.2.1.3 Modes of Liability ___________________________________________________________ 148 2.2.2 2nd Policy: Libya (2015-2019) ___________________________________________________ 151 2.2.2.1 Widespread, Systematic Attack, Pursuant to an Organizational Policy __________________ 151 2.2.2.2 Underlying crimes ___________________________________________________________ 161 2.2.2.3 Modes of Liability ___________________________________________________________ 193 3. Summary 213 4 4. Annexes _______________________________________________________________________ 216 4.1 Victime Statement _____________________________________________________________ 216 4.2 2nd policy cases ________________________________________________________________ 221 4.3 Expert Opinion on Migration Situation in Libya and the Central Mediterranean ______________ 233 5 “…Once they left their homeland they remained homeless, once they left their state they became stateless; once they were deprived of their human rights they were rightless, the scum of the earth.”4 4 Hannah Arendt, 1951, The Origins of Totalitarianism, New York, Harcourt, Brace and Co. 6 7 Executive Summary 1. The present communication provides the Prosecutor with evidence implicating European Union and Member States’ officials and agents in Crimes Against Humanity, committed as part of a premeditated policy to stem migration flows from Africa via the Central Mediterranean route, from 2014 to date. 2. The evidence establishes criminal liability within the jurisdiction of the Court, for policies resulting in i) the deaths by drowning of thousands of migrants, ii) the refoulement of tens of thousands of migrants attempting to flee Libya, and iii) complicity in the subsequent crimes of deportation, murder, imprisonment, enslavement, torture, rape, persecution and other inhuman acts, taking place in Libyan detention camps and torture houses. 3. Relying on agreements concluded with Muammar Gaddafi, the European Union’s border externalization policy thus collapsed together with his regime in 2011. Consequently, in 2014 the European Union resorted to a deterrence-based migration policy, which ignored the plight of migrants in distress at sea, in order to dissuade others in similar situation from seeking safe haven in Europe (EU’s 1st Policy). 4. The EU’s 1st Policy turned the central Mediterranean to the world’s deadliest migration route. Between January 1st, 2014 and end of July, 2017, over 14,500 people died or were reported missing. Two incidents in one week in April 2015 alone cost the lives of 1,200 people.5 5. While migrant crossings were not reduced the death toll drastically increased. Gradually, Search and Rescue (‘SAR’) operations operated by NGOs took on the activities previously carried out by the EU. Consequently, in 2015 the EU renewed its border externalization policy. 5 IOM, Central Mediterranean route : Migrant fatalities, online, https://missingmigrants.iom.int/sites/default/files/c-med-fatalities- briefing-july-2017.pdf, accessed 16/04/2019 8 6. The EU’s second policy (EU’s 2nd Policy) ousted the NGOs from the Mediterranean and dramatically deepened cooperation with the Libyan Coast Guard (‘LYCG’). In a context where the European Union (‘EU’) and its Member States (‘MS’) accepted that push-backs to Libya are strictly unlawful this new configuration effectively enabled the outsourcing of this new policy to the LYCG. 7. In lieu of the lawful rescue and safe disembarkation previously operated by rescue NGOs, the LYCG became a key actor in the interception and unlawful refoulement of migrants attempting to flee Libya. 8. Through a complex mix of legislative acts, administrative decisions and formal agreements, the EU and its MS provided the LYCG with material and strategic support, including but not limited to vessels, training and command & control capabilities. 9. To maximize the number of migrants disembarking at Libyan ports the EU and its MS channeled their policies through the LYCG by directly commanding, instructing and providing them with information, such as the location of migrant boats in distress. 10. Without the involvement of the EU and its MS, the LYCG had no capacity or will to intercept migrants seeking to exit Libya and detain them in camps. Without the implementation of EU’s 2nd Policy, therefore, the crimes against the tarGeted population would not have ever occurred. 11. Through the EU’s 2nd Policy the commission of these crimes amount to a widespread and organised attack against a civilian population designed to deter immigration, the deadliest campaign the ICC has ever had jurisdiction over. 12. This widespread and systematic campaign was (and still is) directed against persons in need of international protection, at their most vulnerable moment: when they were in distress at sea, facing death by drowning. 13. In order to avoid duties arising under maritime law and human rights law, the EU orchestrated a policy of forced transfer to detention facilities, where crimes were (and still are) committed. 9 14. Between 2016 and 2018, more than 40,000 victims were intercepted and transported to detention facilities, where various crimes within the meaning of the Rome Statute would be committed. The attempts by migrants to cross the Central Mediterranean continue, as do the disastrous consequences.6 15. EU and MS officials and agents carefully designed and meticulously implemented a highly coordinated