The Unfinished Case: Crimes Against Refugees and Migrants

The movement of the El Hishri case towards trial is a major development, but it does not resolve the accountability gap that has shaped our engagement with the ICC for years. The proceedings concern serious crimes committed within Mitiga and include victims who were refugees and migrants, yet they do not amount to a dedicated prosecution of the wider system of violence directed specifically against people on the move across Libya. That distinction matters because the structures through which refugees and migrants are detained, transferred, exploited, intercepted and returned extend far beyond one prison, one commander or one period of time.

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For years, the Office of the Prosecutor has recognised crimes against migrants and refugees as a priority within the Libya Situation. The difficulty is no longer whether those crimes have been identified as serious enough to warrant investigation. The difficulty is that recognition has not yet produced a public case capable of addressing the broader system in which refugees and migrants are subjected to arbitrary detention, torture, rape and other forms of sexual violence, enslavement, forced labour, extortion, killings and other forms of inhumane treatment across official facilities, informal places of captivity and trafficking structures.

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The absence of such a case is increasingly difficult to separate from the way violence against refugees and migrants is framed. The same conduct is often fragmented into categories that make the underlying criminality appear narrower than it is. A person can be abducted and the discussion becomes trafficking. A person can be detained indefinitely and the language becomes migration management. A boat can be intercepted at sea and returned to Libya, while the legal analysis focuses on border control without fully confronting what happens after disembarkation. Those categories may describe parts of the reality, but they do not necessarily describe the whole crime. Where the evidence points to widespread or systematic attacks on a civilian population, international criminal law must be capable of examining the conduct at that level.

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For refugees and migrants in Libya, captivity itself has become embedded in systems of profit and control. People may be arrested in the street or taken from their homes, transferred between detention facilities and armed actors, forced to pay for release, compelled to work, subjected to violence or sold onward, only to be detained again after another arrest or interception at sea. The boundary between state detention, armed-group control and trafficking is often not experienced by the person detained as a meaningful distinction. What matters is that the same body can move repeatedly through institutions and networks in which confinement, exploitation and violence remain constant.

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That is why the investigative stream concerning refugees and migrants cannot be satisfied by prosecuting isolated acts while leaving the structure itself untouched. Accountability must be capable of asking who controls detention sites, who profits from captivity, who authorises or facilitates transfers, who commands those carrying out violence, who finances or sustains the relevant structures and how different actors interact across formal and informal systems. The legal categories may differ from case to case, but the investigation must be broad enough to capture the relationships through which the violence is organised.

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The contradiction is especially stark because refugees and migrants in Libya are not an invisible population in evidentiary terms. Their experiences have been documented repeatedly by survivors, United Nations bodies, journalists, civil society organisations, researchers and international investigators. Testimonies describing detention, torture, sexual violence, enslavement, deaths and extortion have accumulated for years. The problem is not that nobody knows. The problem is that people can become extensively documented without becoming meaningfully represented in prosecutions.

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For survivors, that creates a particular form of exhaustion. People are repeatedly asked to describe what happened to them, identify those involved, remember dates and places, recount forms of violence and explain the structures they encountered. Their testimonies may appear in reports, investigations, legal submissions and advocacy materials, yet the path from documentation to accountability can remain unclear for years. A system in which survivors continually supply evidence while prosecutions remain absent risks reproducing another imbalance: institutions gain knowledge, while affected communities are left waiting for consequences.

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The unfinished nature of this work is also visible in the fact that the crimes continue. Refugees and migrants are still arrested without meaningful judicial process, detained in abusive conditions, transferred between facilities and networks, subjected to extortion and violence and intercepted at sea before being returned to Libya. The structures adapt, personnel change, armed groups reorganise and official arrangements evolve, but the underlying vulnerability produced by detention, criminalisation and blocked escape routes remains. Accountability delayed in such a context does not only leave past crimes unanswered; it can help preserve the conditions in which new crimes become possible.

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This is why the progress in El Hishri strengthens rather than weakens our demand for a dedicated prosecution strategy concerning crimes against refugees and migrants. His case demonstrates that evidence from Libyan detention structures can be organised into charges, tested before judges and moved towards trial. That achievement raises the expectation that the same seriousness will be applied to the broader systems affecting refugees and migrants across Libya, rather than allowing those crimes to remain permanently acknowledged but insufficiently prosecuted.

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The question before the Court is therefore no longer whether refugees and migrants have suffered grave crimes in Libya. That has been documented too extensively to remain in doubt as a general factual reality. The question is whether the institutions of international justice are prepared to move from recognition to cases that identify responsibility at the level the violence demands.

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For Refugees in Libya, that is the unfinished case. It is unfinished because the system remains active, because the evidence has not yet been matched by equivalent prosecutorial action, and because people whose suffering has been repeatedly documented are still waiting to see whether international criminal law will treat their lives with the same seriousness it claims to apply elsewhere.

No Double Standards: European Responsibility

The accountability gap does not end at Libya’s borders. If the violence against refugees and migrants is understood as part of a system rather than as a series of disconnected abuses, then responsibility must also be examined beyond the places where detention, torture or interception physically occur.

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For years, European governments and institutions have supported policies designed to prevent refugees and migrants from reaching European territory by strengthening Libya’s capacity to intercept people at sea and keep them within the country. That cooperation has developed while the consequences of return to Libya have been repeatedly documented. The legal question is therefore not simply who commits the final act of violence inside a detention centre or aboard an interception vessel, but whether other actors knowingly contribute to structures through which those crimes are made possible, sustained or repeated.

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This is one of the reasons our work with ECCHR has consistently looked beyond the immediate perpetrators. In its Article 15 Communication to the International Criminal Court, ECCHR presented material concerning the role of European Union institutions, agencies and Member States in the interception of refugees and migrants at sea and their return to Libya. The Communication examines forms of political, financial and operational cooperation involving Libyan actors and European authorities, including support for interception capacity, surveillance and the transmission of information used to locate boats. It advances the argument that these relationships must be examined in connection with what follows interception: return to a country where refugees and migrants face a documented risk of arbitrary detention, torture, sexual violence, enslavement and other grave abuses.

Our own engagement has taken that question further through survivor-led documentation, legal cooperation and the June 2025 joint position paper with ECCHR. There we called on the Office of the Prosecutor to investigate European actors where the evidence raises credible questions about their contribution to crimes within the Court’s jurisdiction. This is not the same as asserting that any particular European official, institution or agency has already been found criminally responsible. No such conclusion should be presumed in advance of an investigation and judicial process. But the absence of a conviction cannot become a reason not to investigate. Where evidence points towards possible forms of assistance, facilitation, coordination or other contributions recognised by international criminal law, those questions should be examined according to the same legal standards applied elsewhere.

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The distinction matters because international criminal responsibility does not necessarily end with the person physically carrying out an abusive act. Mass violence can depend upon decisions taken elsewhere: resources can be provided, operations coordinated, surveillance shared, policies designed and capacities built by actors who never enter the place where the eventual crime occurs. Whether such conduct reaches the threshold of individual criminal responsibility is a legal question that must be determined through evidence. What we reject is the assumption that this inquiry should stop automatically once the chain of conduct reaches European institutions or officials.

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The system of interception and return makes that problem particularly visible. European migration policy has increasingly relied upon preventing departures or ensuring that people intercepted in the Central Mediterranean do not reach European territory. Libya has become central to that strategy. European resources, training, equipment and technical support have helped strengthen Libyan interception capacity, while European surveillance systems can identify boats and communicate their location to Libyan actors. The people intercepted are then returned to Libya, where the risk of detention and serious abuse has been known for years. The geographical separation between European decision-making and violence inside Libya cannot by itself resolve the question of responsibility. Distance does not erase causation, knowledge or contribution where the legal elements of responsibility can otherwise be established.

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This is why we have repeatedly challenged the language through which interception is presented as protection or rescue when its predictable consequence is return to captivity. Whether a particular operation meets the legal definition of rescue cannot be determined by the fact that people were removed from a boat alone. The destination, the actors involved and the foreseeable consequences of return also matter. A policy designed principally to prevent arrival in Europe cannot be insulated from scrutiny merely because another authority carries out the physical interception.

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The Almasri case made the contradiction between European containment policy and European cooperation with international justice especially visible. Italy had spent years participating in policies aimed at preventing refugees and migrants from leaving Libya and reaching Europe. In January 2025, however, the direction of movement was reversed: an alleged perpetrator sought by the International Criminal Court was already in Italian custody, and the Italian state organised his return to Libya rather than completing the process that could have led to his surrender in The Hague. The circumstances of that case have their own legal history and should not be collapsed into the wider question of European complicity, but politically the contrast was impossible to ignore. European states have developed significant operational capacity to control the movement of refugees and migrants across the Mediterranean, yet state cooperation proved fragile when international criminal justice required an alleged perpetrator to move in the opposite direction.

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Our concern therefore extends beyond individual operations to the policy structures that shape them. Agreements between Italy and Libya, European funding for Libyan migration control, support for interception capacity, aerial surveillance and the externalisation of border enforcement all form part of a larger architecture that should be examined in light of its consequences. Different legal proceedings address different parts of that architecture. Our case concerning Frontex before the Court of Justice of the European Union raises questions about the Agency’s aerial surveillance and the transmission of information used in interceptions. Y v. Italy before the European Court of Human Rights concerns the consequences for a survivor of Italy’s handling of the Almasri arrest. Our engagement with the ICC raises a different and more specific question: whether conduct by European officials or other actors may, where the evidence and legal requirements are met, amount to participation in crimes falling within the jurisdiction of the Court.

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These proceedings should not be confused with one another, nor should the existence of litigation be treated as proof of criminal responsibility. Their significance lies in the fact that accountability is beginning to examine different levels of the same broader system rather than limiting scrutiny to those at the point where violence becomes most visible. International criminal law is concerned precisely with structures of responsibility, and those structures can cross institutions and borders.

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For us, equality before international justice requires that this possibility be taken seriously. We do not demand that European actors be prosecuted because they are European. We demand that they not be protected from investigation because they are European. The distinction is essential. The purpose of an investigation is to determine responsibility, not to assume it, but the decision about who is worthy of investigation cannot itself be governed by political convenience.

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The credibility of international criminal justice would be gravely weakened if accountability repeatedly travelled towards African detention centres, armed groups and commanders while the conduct of institutions and officials outside the continent remained beyond comparable scrutiny. The Rome Statute does not contain one standard for a Libyan commander and another for a European official. If the evidence points towards conduct capable of engaging individual criminal responsibility, the same law must be applied irrespective of nationality, institutional affiliation or the political influence of the state involved.

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Our demand is therefore not for an expanded form of justice directed against Europe. It is for the ordinary promise of international justice to be applied consistently: follow the evidence, determine individual responsibility according to law and allow neither geography nor political power to decide in advance where accountability must stop.

What We Are Asking of the International Criminal Court

The concerns set out above lead to a clear set of expectations. Our engagement with the International Criminal Court is not only about identifying failures or pointing to unresolved areas of the Libya Situation. It is also about insisting on what the Court should do next. In our June 2025 joint position paper with ECCHR, we set out four central demands that continue to guide our position: the Libya investigation must remain open while serious crimes continue; the Office of the Prosecutor must build cases concerning crimes committed against refugees and migrants; credible evidence concerning European actors must be investigated; and complementarity must lead to genuine accountability rather than becoming another route through which responsibility is deferred.

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The first of these concerns the future of the Libya investigation itself. The Court should not move towards an artificial completion of investigative activities while the circumstances that gave rise to its intervention remain present. Libya’s acceptance in May 2025 of ICC jurisdiction over alleged Rome Statute crimes committed through the end of 2027 widened the temporal space in which the Court can act. That should strengthen the possibility of accountability, not coincide with a retreat from investigation. New evidence may emerge, structures of command may change, alleged perpetrators may acquire or lose power, and continuing crimes may reveal relationships that were not previously visible. The Office of the Prosecutor must retain the capacity to respond to those developments rather than treating the Situation as if its essential questions have already been answered.

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The second demand is that the investigative stream concerning crimes against refugees and migrants must move from recognition towards cases. This is not a call for symbolic attention or another acknowledgement that serious abuses have occurred. It is a demand for prosecutorial action where the evidence meets the requirements of the Rome Statute. The years of documentation surrounding detention, torture, sexual violence, enslavement, forced labour, killings, extortion and other abuses cannot remain indefinitely within an investigative category that produces no dedicated public case. The Court should identify those most responsible, examine the structures through which these crimes are organised and seek warrants where the evidentiary and legal thresholds are met.

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That investigation must be capable of reaching beyond the immediate perpetrator. A meaningful examination of crimes against refugees and migrants requires attention to command structures, detention authorities, financial and logistical relationships, trafficking networks where they intersect with international crimes, and the systems through which people are intercepted, returned, transferred and confined. Responsibility cannot be reduced to the person physically present at the moment of abuse if the evidence points towards others whose decisions, orders, assistance or control made the crime possible. The Court’s mandate is particularly important because those bearing the greatest responsibility may be the least likely to face effective proceedings through ordinary domestic mechanisms.

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The same principle applies where evidence leads outside Libya. We continue to ask the Office of the Prosecutor to examine the role of European actors without presuming in advance what that investigation should conclude. ECCHR’s Article 15 Communication and our subsequent joint work have raised serious questions concerning European financial, political and operational involvement in systems of interception and return. Those questions should be tested through investigation and law. If the evidence does not establish the elements of individual criminal responsibility, that conclusion should emerge from a genuine examination of the evidence. What cannot be acceptable is for politically powerful actors to remain outside meaningful scrutiny without that examination taking place.

Our fourth demand concerns complementarity. The ICC is a court of last resort, and national jurisdictions retain the primary responsibility to investigate and prosecute crimes falling within the Rome Statute. But that principle only has meaning where domestic proceedings are genuine. The existence of a national investigation on paper is not enough if it does not reach those responsible, if alleged perpetrators remain protected by institutions of power, or if proceedings are used principally to prevent international jurisdiction from being exercised. The Court must assess complementarity according to what national systems actually do, not according to declarations of intent.

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The Almasri case demonstrated why this matters. The presence of domestic processes, claims of Libyan investigative activity and procedural arguments in Italy did not produce his surrender to the ICC. Instead, he was returned to Libya and remains outside the Court’s custody. The El Hishri case demonstrated the opposite: when cooperation is carried through and a suspect is surrendered, judicial proceedings can move forward. These experiences show that complementarity and cooperation must ultimately be judged by whether they bring international crimes within the reach of justice rather than leaving them permanently suspended between jurisdictions.

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Across all of these demands runs another expectation that cannot be treated as separate from the substance of the cases: survivors must be able to participate meaningfully in the processes built partly upon their evidence. Participation does not mean that affected communities determine the outcome of a criminal case, nor does it remove the rights of the Defence or the independence of the judges. It means that people whose experiences form part of the factual foundation of proceedings should not remain at the margins of an institution acting in their name. Outreach, access to information, legal representation, interpretation and protection must be treated as integral parts of justice, particularly for refugees and migrants whose displacement and insecurity can make engagement with the Court exceptionally difficult.

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We also expect the Court to investigate upward. International criminal justice loses much of its purpose if it reaches only those easiest to arrest or those closest to the physical act of violence. Guards, interrogators and direct perpetrators may bear serious responsibility, but the structures in which they operate also require examination. Commanders, political authorities, those controlling detention systems, actors organising or financing criminal structures and others whose contributions meet the legal requirements of the Rome Statute must not disappear from view simply because their involvement is less visible than the violence itself.

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None of these expectations requires the Court to abandon legal standards or to prosecute in response to political pressure. The opposite is true. We are asking the ICC to apply its own standards consistently: to investigate where credible evidence exists, to seek warrants where the legal thresholds are satisfied, to assess national proceedings genuinely, to follow responsibility across institutional and geographic boundaries and to ensure that political difficulty does not determine the limits of prosecutorial attention.

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We continue to make these demands because the progress already achieved in the Libya Situation demonstrates that the Court can act. The El Hishri proceedings show what becomes possible when investigation, cooperation and survivor participation are brought together. That success should not become the endpoint of the Libya Situation. It should establish the standard against which the unfinished parts of the investigation are measured.

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Our expectation is therefore not that the International Criminal Court promise justice in the abstract. It is that the Court use the powers it already possesses with consistency, independence and equal seriousness across the entire Situation in Libya.

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