EU migrant policy: Lawyers call it a crime against humanity

Juan BrancoThe Associated Press
In this April 11 2019 file photo, Lawyer Juan Branco who co-authored a legal document alleging crimes against humanity by the European Union as he speaks during an interview with The Associated Press in Paris, France. Human rights lawyers are accusing the European Union of committing crimes against humanity in its treatment of migrants who hope to cross the Mediterranean Sea from Libya. (AP Photo/Michel Euler, File)

More than 40,000 people have been intercepted in the Mediterranean and taken to detention camps and torture houses under a European migration policy that is responsible for crimes against humanity, according to a legal document asking the International Criminal Court to take the case Monday.

The request filed with the ICC alleges that European Union officials are knowingly responsible for migrant deaths on land and at sea, as well as culpable for rapes and torture of migrants committed by members of the Libyan coast guard, which is funded and trained at the expense of European taxpayers.

The filing names no specific EU officials but cites an ongoing ICC investigation into the fate of migrants in Libya .

Officials with the European Union's executive commission, and the German and Spanish governments defended the EU's strategy to curb migration and efforts to help migrants in Libya. France dismissed the accusations as "senseless" and lacking "any legal foundations."

The legal document cites public EU documents, and statements from the French president, the German chancellor and other top officials from the bloc.

"We leave it to the prosecutor, if he dares, if she dares, to go into the structures of power and to investigate at the heart of Brussels, of Paris, of Berlin and Rome and to see by searching in the archives of the meetings of the negotiations who was really behind the scenes trying to push for these policies that triggered the death of more than 14,000 people," said Juan Branco, a lawyer who co-wrote the report and shared it with The Associated Press. He was referring to the deaths and disappearances at sea, which come on top of the interceptions by the Libyan forces.

The ICC is a court of last resort that handles cases of war crimes, crimes against humanity and genocide when other countries are unwilling or unable to prosecute. It is up to the prosecutor, who receives many such requests, to decide whether to investigate and ultimately bring a case.

The EU spokeswoman in charge of migration, Natasha Bertaud, declined to comment directly on the court filing but said the EU's overall approach to intercepting migrants was directed at saving lives.

"The EU's track record on saving lives in the Mediterranean speaks for itself, saving lives has been our top priority and we have been working relentlessly to this end," Bertaud said.

The first crime, according to the document, was the decision to end the Mare Nostrum rescue operation near the end of 2014. In one year, the operation rescued 150,810 migrants in the Mediterranean as hundreds of thousands crossed the sea.

The operation cost more than 9 million euros a month, nearly all paid for by Italy. It was replaced by an operation named Triton, financed by all 28 EU nations at a fraction of the cost. But unlike the earlier operation, Triton ships didn't patrol directly off the Libyan coast, the origin of most of the flimsy smuggling boats that were taking off for Europe.

Deaths in the Mediterranean then soared. In 2014, around 3,200 migrants died in the sea. The following year, it rose to over 4,000, and in 2016 peaked at over 5,100 deaths and disappearances, according to figures from the International Organization for Migration.

Omer Shatz, the other lead lawyer responsible for the document, said internal EU documents showed officials hoped that ending Mare Nostum would create a deterrent effect.

"Deterrent effect - what does it mean? It means sacrifice the lives of some, in this case of many, to change the behavior of others, to discourage others from doing the same thing," Shatz said.

Bertaud said the EU quickly realized its mistake in ending the Mare Nostrum operation and tripled its rescue capacity in 2015, helping save the lives of 730,000 since that year.

But EU countries leaned heavily on the Libyan coast guard to do so, sending money and boats and a degree of training to units of the loosely organized force linked to various factions of Libya's militias. For Alpha Kaba, a Guinean detained in slave-like conditions in Libya before ultimately making the crossing in 2016, that decision is a travesty.

Kaba was rescued by a ship operated by humanitarian organizations. Those are all but gone now from the Mediterranean, after Italy, Malta and other countries repeatedly refused to allow them to dock with migrants on board.

And in the past two years migration has dropped considerably to Europe. The total for the first four months of 2019 was around 24,200 for irregular migration, 27% lower than a year ago, according to Frontex, the EU's border agency.

"Yes, there's no more migration, but where are all those young people that they picked up? They're in the prisons. They're in Libya and in prisons, and they're being tortured over there. If they aren't allowed in Europe, then let them go back to their countries quickly and under good conditions," said Kaba, who has received asylum in France. "There are no more entrances or exits."

Spanish Foreign Minister Josep Borrell said Libya's migrant holding cells "cannot be referred to as torture detention centers."

"We are trying all means to help Libya provide migrants with the best possible conditions," Borrell, who is maneuvering to become the EU's next foreign policy chief, told reporters in Morocco on Monday,

Libya's role in the migrant crisis and the conditions in the detention centers are already on the radar of the court's chief prosecutor, Fatou Bensouda.

The court receives many similar requests every year for formal investigations into war crimes and crimes against humanity.

"The more detailed the communication, the more likely the prosecutor will take it seriously," said Dov Jacobs, a defense lawyer at the ICC who is not connected to the 243-page request.

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Associated Press writers Masha Macpherson in Paris, Mike Corder in The Hague, Frank Jordans in Berlin, Sylvain Plazy in Brussels; and Amira El-Masaiti in Rabat, Morocco contributed to this report.