Shifting Gravity: Does Libya’s Treatment of Irregular Migrants Rise Beyond Human Rights Violations to Crimes Against Humanity and War Crimes?

15-08-2022

Ryan Haigh

International Justice and Human Rights Researcher

Global Human Rights Defence

Earlier this year, several NGOs including Adala for All, StraLi, and UpRights filed a communication with the International Criminal Court seeking an investigation into the treatment of irregular migrants and asylum-seekers in Libya.  “Irregular migrants” is a term which refers to individuals of foreign nationality who are not authorized by the local government to remain in the country.  Libya has introduced “pushback policies” which preclude migrants from gaining access to legal procedures and appropriate relief for harms they may have suffered.  The policies themselves are aimed at deterring additional migrants from entering the country. 

In Libya, militias are alleged to have been targeting irregular migrants, subjecting them to torture, kidnappings, rape, servitude, and killings.  This situation has been exacerbated by the decade-long conflict in the country.  Militias have allegedly been able to engage in atrocities against the irregular migrant population with impunity.   Moreover, the use of secret prisons, and the failure to provide an accurate accounting of those detained creates further risks.  The UN mission to Libya estimates that approximately 12,000 individuals are detained in 27 prisons across Libya, where they are subjected to inhumane conditions.

Traditionally, situations involving the mistreatment of migrants and refugees seeking relief in Europe via North Africa have been addressed as human rights abuses before the European Court of Human Rights.  The Article 15 communication issued by the aforementioned NGOs could precipitate the ICC looking at such conduct as criminal for the first time.  On 28 April 2022, while briefing the UN Security Council, Karim Khan reported that the crimes alleged by the NGOs against the irregular migrant population may indeed amount to crimes against humanity and war crimes, within the ICC’s jurisdiction.  These recent statements demonstrate that the assertions have at least passed an initial threshold of consideration by the Office of the Prosecutor.  If the investigation continues, related cases could present a fundamental shift with regard to how the international community holds those who mistreat and abuse migrants accountable.