Will The Hague Really Look North? The ICC and EU Crimes Against Migrants

 

 

Adrian Gjoshi*

Photo credit: Justflix, via Wikimedia Commons

 

Europe and the International Criminal Court (ICC) stand at a pivotal moment. For the first time, EU migration policies and senior European officials are subject to direct international criminal scrutiny regarding the treatment of migrants in the Mediterranean. Following a six-year investigation, Front-Lex and international lawyers Omer Shatz and Juan Branco submitted a 700-page communication (communication II) to the ICC, alleging that 122 officials from the EU institutions and several Member States committed crimes against humanity against migrants on the Central Mediterranean route between 2014 and 2020. The submission is based on testimony from 77 witnesses and potential suspects, including several Heads of State, and provides a detailed mapping of agencies and their involvement. The comprehensive collaboration between lawyers, scholars, and students from a Parisian public university highlights the gravity of the allegations.  As a doctoral researcher and lawyer focused on migration-related crimes as potential crimes against humanity, this case is particularly resonant.

The communication builds on an earlier filing from 2019, which contended that these crimes are not incidental but result from EU migration policies that intentionally cause deaths at sea and delegate refoulement to third countries. This recent communication is both explicit and specific: it identifies alleged perpetrators; maps agencies involved and supplies extensive evidence. The communication alleges that more than 25,000 migrants drowned during 2014-2019, and over 150,000 were intercepted and forcibly transferred to Libya, where they were systematically subjected to arbitrary detention, torture, sexual violence, enslavement, and other inhumane treatment.

In its 23^rd report to the UN Security Council on April 28, 2022, the ICC Prosecutor acknowledged the suffering of migrants in Libya and that crimes committed against them may amount to crimes against humanity and war crimes under ICC jurisdiction. Similarly, on October 8, 2021, a member of the Independent Fact-Finding Mission on Libya stated at a media conference: “[…] it’s quite clear that the pullback policies and pushback policies at sea have led to huge violations of human rights on the part of migrants […] and as our report indicates this is one of the areas where we think that  crimes against humanity have been committed”(here). Yet, despite these acknowledgments, no concrete steps toward accountability have been taken.

High-ranking Individuals Allegedly Involved

One striking element of the filing is the public exposure of those accused. The online database of suspects created by the Front-lex names and profiles high-ranking officials, including former German Chancellor Angela Merkel, French President Emmanuel Macron, former EU foreign policy chief Federica Mogherini, and former European Council President Donald Tusk. They are accused of either directly committing or indirectly enabling “mass killing by drowning” and “refoulement by proxy.” Interestingly, all 122 suspects are color-coded to indicate their alleged degree of liability: yellow-green for the highest, violet for high, light purple for medium, and gray for low. Merkel and Mogherini are yellow-green, signaling the highest alleged liability, while Macron and Tusk are violet, indicating high liability. While these remain allegations, the communication pressures the ICC to examine power in the north, rather than continuing its focus exclusively on southern conflicts. To date, regardless of its duties to initiate investigations and investigate all relevant facts, the ICC Prosecutor has never brought a European national to trial.

EU Institutions and Border Policies

Europe’s border regime prioritises securitisation over humanitarian protection (here, here, and here). According to the communication at hand, the European Commission and the Council of the European Union have shifted control to third countries such as Libya and deprioritised search and rescue. Operation Sophia, initiated by the Council, exemplifies this strategy. Front-Lex notes that the Council was a forum “in which the perpetration of crimes against humanity in the Mediterranean and Libya were planned and carried out.”

Frontex, the European Border and Coast Guard Agency, has become central to these policies. Once merely a coordinating body, it now operates with expanded mandates and unprecedented funding. According to the communication, its operations have affected over 175,000 migrants in the past decade and demonstrates the EU’s prioritisation of enforcement over protection. Similarly, EMSA, the European Maritime Safety Agency, was established to ensure maritime safety and prevent pollution. In practice, it also appears to contribute to deterrence-focused migration policies. The communication argues that EMSA aids in the capture, detention, and endangerment of migrants, describing it as part of a “criminal enterprise of deterrence-based policies of mass killing by drowning.”

This coordinated approach on deterrence is also reflected in EU naval operations. Operation EUNAVFOR MED was launched in 2015 with the mission to disrupt human smuggling networks, rescue migrants, enforce the UN arms embargo on Libya, and train the Libyan Coast Guard. The name of the operation was changed to Operation Sophia, after a baby girl, Sophia, born aboard the German frigate FGS Schleswig-Holstein on August 22, 2015, after her Somali mother was rescued in the Mediterranean. The name became a symbolic gesture, highlighting the mission’s humanitarian image, even as its primary focus in practice remained on migration control and border security. Operation Sophia ended in 2020 and was replaced by Operation Irini, which primarily enforces the arms embargo, but according to the communication, continues to influence migration control. The communication also notes that both operations have prioritised deterrence over rescue, contributing to the interception, detention, and endangerment of migrants.

Accountability and the Limits of the ICC

International law limits immunity. The ICC’s Al-Bashir decision (2019) reaffirmed that even sitting heads of state cannot escape accountability. The International Law Commission’s (ILC) work since 2007 also shows a shift away from absolute immunity. Its 2025 report and recent state comments reveal growing acceptance that immunity should not shield international crimes. This shift opens the door for accountability.

The legal action outlined in the communication is compelling, not just for its legal novelty, but for the hope it offers to victims who have long been denied justice. Though groundbreaking, the legal action faces formidable legal and political hurdles that test the ICC’s limits. Legally, it is difficult to attribute criminal intent to political decisions. Politically, the ICC faces intense pressure from congressional threats, executive sanctions, and expanded measures against ICC staff by the US, as well as moves from Europe, such as Hungary’s 2025 withdrawal from the Rome Statute.

This probably explains why the ICC has historically struggled to act against powerful states (here and here). For two decades, its investigations focused almost entirely on African states (here, here, and here), while powerful Western states faced no comparable scrutiny. More recently, though, there are signs of progress: the ICC, after issuing an arrest warrant, arrested former Philippine President Rodrigo Duterte in March 2025 on charges of crimes against humanity linked to his “war on drugs.” This case, while still in the pre-trial stage, shows that the Court can move against high-profile figures and look beyond Africa. Duterte was no longer in office at the time, reminding us that leaders often need to be out of power before the Court can act.

Nevertheless, high-profile officials from influential countries remain effectively immune from prosecution. The issuance of arrest warrants for Vladimir Putin and Benjamin Netanyahu, with no arrests or court appearances to date, demonstrates the persistent challenges of enforcement in such cases. Consequently, the Court has not succeeded yet in holding leaders of powerful states accountable.

Going for the Heads of State

International justice often concentrates on the actors who implement unlawful policies, while those who design, authorize, and legitimise them remain insulated from effective scrutiny. Accountability becomes harder to pursue the more political authority a person holds. Unless responsibility is traced to the architects of these policies, the system that enables widespread harm remains intact.

Research suggests that focusing solely on individual responsibility can be incomplete.  For example, vulnerability theory shows that violence against migrants stems from policies, institutions, and hierarchies that normalise exclusion. International criminal law, with its focus on personal responsibility, overlooks this complexity. Mark Drumbl argues that individual prosecution cannot address the collective, structural nature of mass atrocities, and that ordinary criminal law assumptions cannot simply be applied to extraordinary crimes. At the same time, Kathryn Sikkink’s influential work on the “justice cascade” shows how trials of state officials can shape state behavior and help build a broader, lasting culture of accountability. This supports the view that, because systems are created and maintained by people, this legal action can deter future violations. The ICC, therefore, has an opportunity to confront not only individual liability but also the structures of power that enable such crimes.

Regardless of the outcome, the significance of this legal action lies in how it emerged and the challenge it poses. The collaboration between lawyers and students demonstrates the power of coordinated research and advocacy. More than a procedural step, it constitutes a convergence of practice and academia, testing whether the promise of international justice effectively extends to actors in both the Global North and the Global South. At minimum, it stands as a call for justice showing that law alone may not dismantle oppression, but it can expose it. And at times, exposing the truth is the first step toward accountability.

 

*Adrian Gjoshi is a doctoral researcher at the Institute for Human Rights at Åbo Akademi University and a lawyer. His research focuses on international criminal law and migration law.

 

The author would like to thank the editorial team and reviewers at Talking Rights for their helpful feedback.