The Communication provides a thorough analysis of the evolution of EU and certain Member States’ border and migration management policies in relation to Libya (See Question What do EU and Member States’ policies have to do with the crimes ECCHR is
alleging in the Communication?). Since at least 2016, the cooperation between EU agencies, EU Member States, and internationally recognized Libyan authorities have focused on increasing the capacity of Libyan actors to conduct interceptions of migrants and refugees at sea.
The Communication describes how this cooperation plays out in reality by reconstructing 12 exemplary incidents of the interception of migrants and refugees at sea and their return to and detention in Libya between 2018 and 2021. The incidents were chosen because they present a particularly clear and detailed picture of the cooperation, on both policy and operational levels, between EU Member States, EU agencies, and Libyan actors in carrying out the interceptions and returns.
The incidents covered include interceptions that began on the dates: 28 February 2018, 7 November 2018, 10 April 2019, 2 May 2019, 18 October 2019, 12 February 2020, 13-14 April 2020, 14 July 2020, 10 February 2021, 28 March 2021, 21 April 2021, and 30 July 2021.
The presentation and analysis of these incidents is based on operational documentation and factual and legal research conducted by ECCHR and various organizations, including Sea-Watch, Initiative Watch the Med–Alarm Phone, Mediterranea, Open Arms, Border Forensics, Frag den Staat, Amnesty International, Human Rights Watch, and Lighthouse Reports. It also draws on additional information collected and analyzed from reliable public reports and open-source data, for example, from UN bodies such as the UN High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the Office of the UN High Commissioner for Human Rights (OHCHR), the Independent Fact-Finding Mission on Libya (FFM), the UN Special Rapporteur on the human rights of migrants, the UN Support Mission in Libya (UNSMIL), and the UN Panel of Experts on Libya. Data gathered by UNHCR and IOM, in particular, provides key insights into the disembarkation and transfer to detention centers of migrants and refugees in Libya, which, while not exhaustive, is indicative of the systematicity of migrants and refugees’ transfer to detention upon their disembarkations in Libya after interceptions at sea.
Other sources included EU internal reports, documents or datasets obtained through publicly available platforms or Freedom of Information Act (FOIA) requests. The findings of the report of the European Anti-Fraud Office (OLAF) investigating Frontex misconduct also provided helpful insight into Frontex’s general internal operation. Via Frag den Staat, ECCHR was able to obtain access to the Frontex Joint Operations Reporting Application (JORA) database, which documents events that took place at the EU’s external borders. Nonetheless, the opaque nature of the operation of several European entities (particularly Frontex) makes it difficult for civil society organizations to obtain information through publicly available sources and FOIA requests. This also highlights the crucial importance of the ICC’s investigative powers, through which it may be able to obtain confidential information that is otherwise unattainable.
Through the analysis of these incidents, the Communication argues that the interceptions at sea, returns to, and detention of migrants and refuges in Libya amount to the crime against humanity of severe deprivation of liberty (See Question What crimes are alleged in the Communication?). Therefore, ECCHR urges the OTP to investigate these allegations and to prioritize the collection and preservation of this documentation and data with a view toward its use as admissible evidence. In doing so, it should consider any associated risks and take necessary measures to protect victims and witnesses.