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ELSPETH GUILD
humanity committed by European Union and EU Member State officials in the
context of the death, torture and other treatment of migrants seeking to flee Libya
to go to the EU.* The communication which is the result of two years of research,
presents evidence implicating European Union and Member States’ officials and
agents in crimes against humanity committed as part of a premeditated policy to
stem the flows of persons from Africa to the EU from 2014 to the present time.
The communication is specific about the engagement of officials of the EU and
Member States in the commission of crimes within the jurisdiction of the ICC.
The ICC is no stranger to the situation in Libya and has had an investigation open
in respect of crimes against humanity and war crimes committed in Libya since
2011.° However, the ICC investigation has been mainly focused on international
crimes committed within Libya by Libyan authorities. The allegation that European
authorities had been profiting from the chaotic political situation and civil war
in Libya to plan and put into effect a border crossing deterrence policy in full
knowledge of the murderous effects in terms of death in the Mediterranean which
would ensure was new to the file. However, concern in international institutions
particularly at the UN and Council of Europe regarding the impacts of EU non¬
entre policies on death in the Mediterranean was increasingly widely disseminated.
The ICC prosecutor gave a statement to the Security Council on the situation in
Libya in which she described it as “a marketplace for the trafficking of human
beings”.° Two UN Special Rapporteurs, Callamard,’ and Melzer,’ in 2017 called
on the ICC to consider a preliminary investigation into atrocity crimes against
refugees and migrants. What Schatz and Branco do, is they tie the treatment of
refugees and migrants in Libya directly to specific EU policies to prevent people
from getting to the EU from Libya. These policies were based on the fight against
trafficking and human smuggling but had the direct consequence, according to
Schatz and Branco, of creating the conditions for trafficking and smuggling and
did so in a premeditated way. According to them this result was not a mistake
but the acknowledged outcome of EU policies between 2014 and the present.
* Submission to ICC condemns EU for ‘crimes against humanity’, https://www.youtube.com/
watch?v=A MGaKDNxcDg. Statewatch: monitoring the state and civil liberties in Europe,
https://www.statewatch.org/eu-med-crisis-archive-19-06-jun.htm.
5 International Criminal Court, https://www.icc-cpi.int/libya.
° Statement to the United Nations Security Council on the Situation in Libya, pursuant
to UNSCR 1970 (2011), https://www.icc-cpi.int/Pages/item.aspx?name=180508-otp¬
statement-libya-UNSC.
7 UN Special Rapporteur on extrajudicial, summary or arbitrary executions, https://undocs.
org/A/72/335.
® UN Special Rapporteur on torture, cruel, inhuman or degrading treatment or punishment,
interviewed in https://www.ejiltalk.org/time-to-investigate-european-agents-for-crimes¬
against-migrants-in-libya/.
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