In June this year two law- yers filed a complaint at the International Criminal Court (ICC) naming european Union member states’ migration policies in the mediterranean as crimes against humanity. the court’s prosecutor, Fatou bensouda, must decide whether she wants to open a preliminary investigation into the criminality of europe’s treatment of migrants.
eU’s mediterranean migrant
policy is set out in a 245-page document pre- pared by Juan
branco and Omer shatz, two
lawyer-activists working and
they argue that eU migration
policy is found-
ed in deterrence and that drowned migrants are a deliberate element
of this policy. the international law that they allege has been violated – crimes against humanity – applies to state policies practiced even outside of armed conflict.
Doctrinally and juridically, the ICC
can proceed. the question that remains is political: can and should
the ICC come after its founders on their own
turf? there are two
rea- sons why the
answer is emphatically
yes. First, the complaint addresses what has become a rights impasse
in the eU. by taking on an area stymying other supranational courts, the ICC can fulfil its role as a judicial institution of last resort. second, by turning its sights on its founders (and funders), the ICC can redress the charges of neo-colonialism in and around Africa that have dogged it for the past decade.
the ICC is the world’s first perma- nent international criminal court. Founded in 2002, it currently has 122 member states.
so far, it has only prosecuted Africans. this has led to persistent critiques that it is a neo-colonial institution that“only chases Africans” and only tries rebels. In turn, this has led to pushback against the court from powerful actors like the African Union, which urges its members to leave the court.
the first departure from the court occurred in 2017, when burundi left. the philippines followed suit in march of this year. both coun- tries are currently under investiga- tion by the ICC for state sponsored atrocities. south Africa threatened withdrawal, but this seems to have blown over.
In this climate, many cheered the news of the ICC prosecutor’s 2017 request to investigate crimes com- mitted in Afghanistan. As a member of the ICC, Afghanistan is within the ICC’s jurisdiction. the investigation included atrocities committed by the taliban and foreign military forc- es active in Afghanistan, including members of the Us armed forces. the Us, which is not a member of the ICC, violently opposes any possibility that its military personnel might be caught up in ICC charges. In April 2019 the ICC announced that a pre-trial chamber had shut down the investigation because Us opposition made ICC action impos- sible. Court watchers reacted with frustration and disgust.
An estimated 30,000 migrants have drowned in the mediterranean in the past three decades. International attention was drawn to their plight during the migration surge of 2015, when the image of 3-year-old Alan Kurdi face-down on a turkish beach circulated the globe. more than one million people entered europe that year. this led the eU and its member states to close land and sea borders in the east by erecting fences and completing a euro 3 billion deal with turkey to keep migrants there. NAtO ships were posted in the Aegean to catch and return migrants. migrant-saving projects, such as
the Italian mare Nostrum programme that collected 150,000 migrants in 2013-2014, were replaced by border guarding projects. political pressure designed to reduce the number
of migrants who made it to european shores led to the revo- cation and non-renewal of licenses for boats registered to NGOs whose purpose was to rescue migrants at sea. this has led to the current sit- uation, where there is only one boat patrolling the mediterranean.
the eU has handed search and rescue duties over to the Libyan coast guard, which has been accused repeatedly of atrocities against migrants. european countries now negotiate mediterranean migrant reception on a case-by-case basis.
A rights impasse
International and supranational law applies to migrants, but so far it has inadequately protected them. the law of the sea mandates that ships collect people in need. A series of refusals to allow ships to disembark collected migrants has imperilled this international doctrine.
In the eU, the Court of Justice oversees migration and refugee pol-icies. such oversight now includes a two-year-old deal with Libya that
some claim is tantamount to “sen- tencing migrants to death.” when states cannot or will not act
For its part, the european Court of Human rights has established itself as “no friend to migrants.” Although the court’s 2012 decision in Hirsi was celebrated for a pro- gressive stance regarding the rights of migrants at sea, it is unclear how expansively that ruling applies.
european courts are being invoked and making rulings, yet the journey for migrants has only grown more desperate and deadly over the past few years. existing european mechanisms, policies, and interna- tional rights commitments are not producing change.
In this rights impasse, the intro- duction of a new legal paradigm is essential.
Fulfilling its role A foundational element of ICC pro- cedure is complementarity. this holds that the court only intervenes on their own. Complementarity has played an unexpectedly central role in the cases before the ICC to date, as African states have self-referred defendants claiming that they do not have the resources to try them themselves.
this has greatly contributed to the ICC’s political failure in Africa, as rights-abusing governments have handed over political adversaries to the ICC for prosecution in bad faith, enjoying the benefits of a domes- tic political sphere relieved of these adversaries while simultaneously complaining of ICC meddling in domestic affairs.
this isn’t how complementarity was supposed to work.
the present rights impasse in the eU regarding migration showcases what complementarity was intended to do – granting sovereign states pri- macy over law enforcement and step- ping in only when states both violate humanitarian law and refuse to act.
the past decade of deadly migra- tion coupled with a deliberately wastrel refugee policy in europe qualifies as just such a situation.
Would-be migrants don’t vote and cannot garner political repre- sentation in the eU. this leaves only human rights norms, and the inter- national commitments in which they are enshrined, to protect them.
these norms are not being enforced, in part because questions of citizenship and border security have remained largely the domain of sovereign states. those policies are resulting in an ongoing crime against humanity.
the ICC may be the only insti- tution capable of breaking the cur- rent impasse by threatening to bring europe’s leaders to criminal account. this is the work of last resort for which international criminal law is designed. the ICC should embrace the progressive ideals that drove its construction, and engage.
Mohamud hure, education officer with unhcR kakuma, contributed to the research for this article.