Is the European Union responsible for crimes against humanity?
OPINION. “If you think that too many people are being killed, perhaps you should supply fewer weapons”, said the EU’s chief diplomat; Josep Borrell should also put his own house in order, writes Alain Werner, of Civitas Maxima, as the EU provides support for the repression of illegal immigration from North Africa to Europe, at the center of several international complaints.
In response to a letter from South Africa, and in the light of events on the ground, on February 16 the International Court of Justice (ICJ) issued a ruling on Palestine after receiving Israel’s observations. Like the United Nations, the ICJ noted the risk of an “exponential worsening of what is already a humanitarian nightmare with unfathomable regional consequences”. It therefore demands the immediate and effective implementation of the precautionary measures indicated in its order of January 26, 2024, which are applicable to the entire Gaza Strip, including Rafah.
In addition – as expected – the situation in Gaza is now of concern for judges in Europe and the United States, as they are being asked to intervene in their countries’ policies towards Israel.
For the Dutch judiciary, a clear risk of serious violations
In early February, a judge in the United States dismissed an action brought by Palestinian groups against President Joe Biden, Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin. The action was aimed at halting US military support for Israel. California Judge Jeffrey White ruled – apparently reluctantly, given the tone of the decision – that he had no jurisdiction in this case, as he was being asked to question a political decision taken by the executive branch of the US government.
Last week, on the other hand, the Court of Appeal in The Hague ordered the Dutch state to cease – within seven days after the judgement was rendered – all export and transit of F-35 fighter jet parts to Israel. It considered that there was a clear risk of serious violations of humanitarian law being committed in the Gaza Strip with Israeli F-35 aircrafts. The Dutch Minister of Trade and Development has indicated that his country will appeal against the Court of Appeal’s decision, but that the government will respect and implement the ruling in the meantime.
EU resources to combat illegal immigration called into question
Regarding the situation in Palestine, head of European diplomacy Josep Borrell stated last week: “If you think that too many people are being killed, perhaps you should provide fewer weapons to prevent so many people from being killed. Isn’t that logical?”. When I heard this, it occurred to me that, just like Josep Borrell, most members of the European Union (EU) probably consider that the large-scale crimes against humanity committed in recent years are attributable to others, but not to them. And yet…
Less than a year ago, a fact-finding mission of the United Nations Human Rights Council in Geneva concluded that the EU was responsible for complicity in the detention, murder, torture, rape, and abduction of migrants. The EU is funding a project worth around 750 million euros to stop illegal immigration from North Africa to Europe by providing money, equipment, and training to Libyan armed groups to intercept and detain migrants.
This report considers that there are reasonable grounds to conclude that crimes against humanity are being committed against Libyans and migrants, including several crimes committed on a widespread basis including murder, torture, rape, and enforced disappearance. “We are not saying that the European Union and its member states have committed these crimes. The fact is that the support provided constitutes complicity in the commission of these crimes” said one of the members of the fact-finding mission at a press conference. The mission’s report also concludes that “the practices and patterns of gross violations continue unabated, and there is little evidence that significant steps are being taken to reverse this disturbing trajectory and offer relief to victims“. Since the agreement with the Libyan coast guard came into force in February 2017, it is believed that tens of thousands of migrants have ended up in detention centers in Libya.
This question on the responsibility of the EU and/or its member states in large-scale crimes is no longer only mentioned in UN reports that only a few people read. It has also found its way into courts, both in Europe and internationally.
In February 2022, the non-governmental organization front-LEX lodged a complaint against Greece with the European Court of Human Rights in Strasbourg, following the refoulement by the Greek authorities of a French student sentenced on political grounds to 6 years’ imprisonment in Turkey. After crossing the Evros river, this European national was sent back to a military zone in Turkey, where she was captured by soldiers. She is currently serving a 6-year prison sentence in Turkey for political offenses which, according to the NGO, she did not commit.
In March 2022, the same NGO sued the European Border and Coast Guard Agency (Frontex) before the Court of Justice of the EU for kidnapping a Syrian national from a Greek island and abandoning him at sea, putting his life at risk. According to this complaint (and others filed with the same body), at least 43,000 people have been forcibly and illegally turned back this way since January 2020, in joint operations by Frontex and Greece.
Finally, in 2019, lawyers, including the founder of front-LEX, Israeli lawyer Omer Shatz, submitted a communication to the International Criminal Court (ICC), providing evidence that they believe proves the involvement of the EU, European officials and agents, in the commission of crimes against humanity since 2014. The communication focuses on three main aspects of European migration policies adopted between 2015 and 2019: the transition from Italian rescue operations (Mare Nostrum) to Frontex operations known as “Triton”; the evacuation of NGOs conducting rescue operations at sea; and cooperation with the Libyan coastguard.
According to the lawyers, the direct consequences of these three European policies were:
- The drowning of more than 20,000 people since 2015;
- The refoulement of tens of thousands of people attempting to flee Libya;
- And because of this refoulement, complicity in numerous crimes suffered in Libya by 120,000 people since 2016, including murder, rape, and torture.
Of course, all these procedures also raise a moral question for Europeans.
As lawyer and international law professor Zachary Douglas wrote in the columns of Le Temps in 2022, we cannot knowingly create the conditions for human beings to drown at sea by invoking the complexities of migration governance or securing borders. Nor can we invoke this same argument to knowingly facilitate torture in Libyan camps, places that Pope Francis has compared to “concentration camps”.
The crimes committed since 2016 against migrants in Libya are therefore solidly established, notably by UN reports. Yet, on the subject of an eventual responsibility from Europe, the same Josep Borrell – who today dispenses lessons in moral values – declared, in June 2019, then in his capacity as Spanish Foreign Minister, that the Libyan camps “could not be called torture detention centers“.
One might expect that European leaders who call out the rest of the world on matters of human rights and the imperative need to protect them to also question how Europe is living up to its own moral and legal obligations. And in doing so, question the meaning of our own European values.
The article first appeared in French on Le Temps on the 20th of February, 2024.
Photo: Inside room of the European Parliament. Wikimedia Commons.
