International Criminal Court asked to investigate Maltese, Italian migrant pushbacks

Jurists from Dutch NGO Uprights, France’s Adala For Al, and Italy’s StraLi have filed a communication with the court in The Hague, Netherlands, alleging that Italy assisted the Libyan coast guard in intercepting migrants at sea.

Together with Maltese officials, they are accused of having “acted in a coordinated manner with the Libyan coast guard in the recovery of migrants to ensure that they were intercepted and returned to Libya.”

The NGOs are calling for an investigation and potential prosecution of all relevant actors – which could include Maltese nationals like former OPM envoy Neville Gafà – who  facilitated the return of migrants to Libya leading to their detention and subsequent mistreatment.

“The Communication requests the ICC to undertake an investigation and take an important first step to ensure that crimes related to migration, traditionally under the purview of human rights and refugee law, are scrutinized through the lens of international criminal law,” Nicolò Bussolati, vice-President of StraLi.

Gafà had confirmed to a magisterial inquiry into the deaths of migrants at sea, that he was asked by the Maltese government to coordinate a pushback of the boat migrants to Libya.

He confirmed that on Easter Sunday of 2020, he was involved in a mission so that a boat of 51 irregular immigrants, be taken to a port in Tripoli. The boat also had five dead bodies.

Neville Gafà has previously claimed that through his contacts in Libya, thousands of migrants would be saved at sea by the Libyan coastguard. The former official within the Office of the Prime Minister, told the Daphne Caruana Galizia public inquiry on Wednesday that “Malta was spared thousands of immigrants”.

Gafà was issued with a diplomatic passport because of his frequent travels to Libya as Joseph Muscat’s special envoy on migration-related matters with Libya.

The Communication requests the ICC to investigate international crimes committed by Libyan armed groups against thousands of migrants, including women and children, trapped in detention centres in Libya following their interception at sea.

The NGOs said that once returned to Libya, the victims were routinely and systematically subjected to various forms of mistreatments and abuse including murder, torture, rape, forced labour and forced conscription.

“The ICC Prosecutor should scrutinize, in addition to Libyan actors, the potential criminal conduct of Italian and Maltese authorities and officials for the support they provided to Libyan actors,” the NGOs said.

They also said the crimes committed against migrants and asylum seekers qualify and should be investigated as war crimes under Article 8 of the ICC Statute, and crimes against humanity under Article 7.

“The need to investigate and ensure accountability is heightened by the fact that a number of European authorities, including Italian and Maltese nationals, have facilitated the return of migrants to Libya leading to their detention and subsequent mistreatment,” said Ramadan Amani from Adala for All.

“Crimes committed against migrants in Libya represent an emerging ‘pocket of immunity’ at the border of Europe which has become increasingly and openly accepted by the international community despite the massive amount of evidence of pervasive international crimes on Europe’s doorstep. Available evidence clearly points to responsibilities within Europe.” 

Between 2017 and 2021, Italian authorities and officials provided support to the Libyan Coast Guard to intercept migrants at sea and return them to detention centres.

Italian and Maltese officials closely coordinated with the Libyan Coast Guard on rescue operations to ensure that migrants at sea would be intercepted and returned to Libya.

The NGOs said the support of Italian and Maltese authorities to the Libyan Coast Guard qualifies as a form of contribution to the crimes committed against migrants.

According to the NGO Alarm Phone, the Maltese authorities deliberately ignored a distress call and then coordinated the pick-up of a boatload of 63 people who were returned to Libya. Since the boat potentially carried asylum seekers, the act of returning the migrants to the place they were fleeing from would be illegal in the eyes of international law. Additionally, a boat belonging to Carmelo Galea, the Mae Yemanya, is believed to have been used to coordinate the pushback.