Andrea Preziosi | AMP711@student.bham.ac.uk
The cooperation between Italy and Libya with the objective of curbing migratory pressure on Italian shores and EU external borders has attracted a great deal of criticism in light of the widespread pattern of human rights violations against migrants taking place on the war-torn territory of the African state. It was inaugurated in the early 2000s and strengthened by way of the 2017 Memorandum of Understanding. The former UN High Commissioner for Human Rights has condemned the assistance provided by Italy (backed by the EU) to the Libyan Cost Guards to intercept migrants at sea and prevent them from leaving the country, where they are confronted with “unimaginable horrors”, including torture, rape and killing. The Italian strategy has sought to involve not only internationally-recognised actors, but also local tribes that control Libyan territorial borders and, reportedly, armed groups implicated in the trafficking of migrants. Despite rising criticism, the newly elected Italian government has adopted an even more restrictive policy to tackle migration, as demonstrated by the frequent episodes of boats carrying hundreds of migrants coming from Libya being prevented entry to Italian ports.
In the midst of this concerning situation, in May 2018 the Prosecutor of the International Criminal Court (ICC) stated before the UN Security Council that investigations are also focusing on the crimes allegedly committed against migrants in Libya.
The need for a thorough investigation into the role played by European states with respect to the crimes allegedly committed against migrants has been noted by many. Given the current crackdown on migrants by the Italian government and the frontline position of Italy in handling the migratory flow coming from Libya, I will examine whether high-ranking Italian officials can be held accountable for the crimes against humanity committed in Libya and tried before the ICC.
Establishing ICC Jurisdiction
Should the Prosecutor decide to investigate Italy for complicity in the crimes committed in Libya, she will have a number of potential avenues to pursue.
First, the Prosecutor may decide to launch proprio motu a new preliminary investigation focusing on the alleged crimes committed by Italian officials, without formally linking this situation to that under investigation in Libya since 2001. Italy is a state party to the Rome Statute, hence the ICC can exercise its jurisdiction over crimes committed on Italian territory (including on board an Italian vessel: Art.12(2)(a) Rome Statute) or by Italian nationals (Art.12(2)(b)). This is, however, somewhat unlikely. Since potential criminal conduct carried out by Italian officials would be accessory to the commission of migrant-related crimes by Libyan authorities, it is uncertain whether the Prosecutor would seek to investigate complicity crimes separately from any investigation into the principal crimes.
Therefore, it would seem more likely that the Office of the Prosecutor (OTP) would choose to investigate Italian authorities in the context of the on-going investigation into the situation in Libya. While this solution would seem more logical, it is in itself potentially problematic. Libya is not party to the Rome Statute, therefore investigations were initiated by the Prosecutor following a referral by the Security Council in February 2011. Although the OTP has seemed willing to expand the scope of the investigation as to include crimes against migrants, it is far from clear whether those crimes can still fall under ICC jurisdiction. According to the referral, the OTP can investigate alleged crimes in Libya committed since 15 February 2011, without establishing a temporal limit. At the time of the referral, Libya was ruled by the Gaddafi regime, but circumstances have changed dramatically since then. Hence, the question is whether the referral has extended ICC jurisdiction to include crimes committed in Libya at any point in time. On this matter, the Pre-Trial Chamber has clarified that the Court’s jurisdiction can be exercised insofar as the crimes “are sufficiently linked to the situation of crisis referred to the Court as on-going at the time of the referral” (Mbarushimana, §6; see also Al-Werfalli, §23). Following this approach, the Prosecutor could argue that crimes against migrants, including those committed by Italian officials, stem from the same situation of instability that triggered the referral back in 2011.
A third way could be for the Security Council to issue a new referral (a “Situation in Libya II”, so to speak) covering the crimes against migrants, as advocated elsewhere. However, it seems unlikely that the Security Council would open the Pandora’s box by allowing investigations of crimes allegedly committed not only by Italy, but potentially other EU States alike.
In any of these scenarios, for the Prosecutor to start an investigation of Italian officials it would first of all be necessary to demonstrate that Italy is unable or unwilling to prosecute the alleged perpetrators of the crimes (Art.17(1)(a)). While it would be difficult to maintain that Italy is unable or unwilling to bring proceedings for crimes against humanity against officials not holding ministerial ranks, a major obstacle to prosecute and try the Prime Minister and other ministers may exist. According to Art.96 of the Italian Constitution, the judiciary must obtain prior parliamentary authorisation before bringing proceedings against the Prime Minister and ministers (including those formerly in office) for crimes committed in the exercise of their functions. The parliament can refuse to grant the authorisation if it is believed that they acted to protect national interests (Art.9 of Law N.1/1989). Should the parliament decide not to grant said authorisation, a case could be made that Italy is indeed unwilling to prosecute its top-ranking officials for crimes falling within the jurisdiction of the ICC. The refusal to authorise might well be considered a sort of “immunity” preventing the prosecution of international crimes, and as such contrary to Art.27 of the Statute.
Modes of liability
Another problematic aspect is the determination of the mode of liability under which Italian officials would be held accountable. Ruling out the hypothetical of them having directly perpetrated or ordered, solicited or induced crimes (Art.25(3)(a) and (b)), a first possibility would be aiding and abetting under Art.25(3)(c). The actus reus of aiding and abetting, as interpreted by the ICC (Mbarushimana, §279) borrowing from the ad hoc tribunals’ case law, requires a “substantial contribution” to the principal crimes. It follows that the financial and technical support provided by Italy to Libya in order to prevent migrants from leaving the country and condemn them to suffer any kind of abuses may well constitute a substantial contribution to the crimes committed by the recognised Libyan government and the armed groups present in the country.
As for the mens rea of aiding and abetting, the Rome Statute requires – together with the knowledge that the acts will assist the perpetrators in the commission of the crimes – an additional element not contemplated in the ad hoc tribunals’ statutes, that is that the person has acted “for the purpose of facilitating the commission” of the principal crimes. However, while it can be easily argued that Italian officials were well aware of the widely-reported crimes occurring in Libya and that their assistance provided a substantial contribution, it cannot be maintained that they wished to facilitate their commission. On the other hand, the doctrine has been highly critical towards the purpose requirement, stressing that requiring the aider and abettor to act with purpose is tantamount to requiring shared intent (Cassese, International Criminal Law, p.195). As highlighted by others, it would be more correct to interpret it in a way that requires for the perpetrator to be aware that the consequence of his or her conduct (in this case, the principal crimes) will occur in the ordinary course of the events (in line with Art.30(2)). To argue otherwise, as convincingly illustrated, would mean requiring a higher degree of mens rea to convict an aider and abettor than the one required to convict the perpetrator of the principal crime. As argued by Schabas, reckless indifference may likewise constitute complicity. Following this critical doctrine, Italian officials may be held responsible since they could most likely be aware that, as a result of their assistance, in the ordinary course of the events, crimes against humanity will be committed against migrants in Libya.
As an alternative to responsibility under Art.25(3)(c), Italian officials may be held accountable under the “residual form of accessory liability” (Lubanga, §337) provided for in (d): “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”. As found in Mbarushimana (§283), the actus reus requires a “significant contribution” to the principal crimes that arguably can be found in the conduct of Italian officials. As for the mens rea, it may be maintained that Italian authorities acted “in the knowledge of the intention of the group to commit the crime” under (d)(ii).
The willingness of the Prosecutor to start focusing on crimes against migrants is certainly to be welcomed. However, it seems quite unlikely that the investigation will encompass the role of Italy, as well as other EU States, in contributing to the commission of the crimes occurring in Libya. As the scenarios analysed here with respect to Italy demonstrate, while from a legal perspective the involvement of the ICC may be envisaged, the Court would almost certainly lack the political support to carry out a thorough investigation in an historical moment when EU states seem overwhelmingly concerned about containing the perceived migratory pressure. Nevertheless, an investigation into the crimes allegedly committed by Western states would contribute to shift away the frequent criticism over the ICC targeting in particular African states. More importantly, it would contribute to keeping the spotlight on questionable migration policies promoted by EU Member States with the endorsement of EU institutions.
Andrea Preziosi is the Global Challenges PhD Scholar at Birmingham Law School and Teaching Associate in Criminal Law. His research focuses on the legal concept of security and its interplay with human rights. He holds an LLM in International Humanitarian Law and Human Rights from the Geneva Academy, as well as a MA in Political Science and a Law Degree from the Universities of Naples. He has worked with the International Criminal Court, the Council of the EU, and other international and non-governmental organisations.