On 22 September 2020 Wayamo Foundation Senior Consultant Mark Kersten gave the following remarks to the Fact-Finding Mission (FFM) on Libya, which was established by the United Nations Human Rights Council in June 2020. The talk focused on the need to investigate the nexus between international crimes (crimes against humanity, war crimes, genocide) and transnational organised crimes (human trafficking, extortion, drug trafficking, etc.).
It is an honour to speak with you on behalf of the Wayamo Foundation, an NGO that works on advocating for global justice and building the capacity of national authorities to investigate and prosecute international and transnational organised crimes.
I would like to use my time to stress the importance of an issue which we believe continues to receive too little attention, namely the interaction and intersection between the perpetration of international crimes and the commission of transnational organised crimes in Libya (and beyond).
Wherever we look at conflicts over the last thirty years, we can see that the same perpetrators of atrocities have also perpetrated transnational organised crimes.
This is now a common thread of political conflicts, the blurring between organised criminality, atrocity, and warfare.
To name but a few examples:
- Liberian President Charles Taylor aided and abetted crimes against humanity while engaging in the plunder and illegal sale of diamonds in Sierra Leone.
- In East Africa, the Lord’s Resistance Army survives to perpetrate atrocities for another day by trading Ivory through Sudan.
- Members of the Kosovo Liberation Army have been accused of not only committing counter-ethnic cleansing against the Serb population, but of human organ harvesting and trafficking.
- In Syria, the Islamic State not only perpetrated war crimes, crimes against humanity, and genocide, but sustained itself through illegal markets, selling oil through Turkey and cultural artefacts around the globe.
Libya tragically follows this same pattern. It seems almost too obvious to say: Those involved in the perpetration of crimes against humanity and war crimes are likewise engaged in complex networks of organised crime.
The evidence is overwhelming. And yet too little effort is dedicated to acknowledging the fact that transnational organised crimes and international crimes are fundamentally linked and that, therefore, the investigation and prosecution of these two crime sets should be linked as well.
Libyans experience transnational organised crimes via extortion, arms trafficking, and drug trafficking.
But the most obvious and well-known expression of the intersection between transnational organised crimes and international crimes relates to human trafficking and the concomitant crimes committed against migrants by branches of the Libyan government, including the coast guard, and various militias.
These crimes are well documented.
The Prosecutor of the International Criminal Court, Fatou Bensouda, has repeatedly declared that her office would investigate the trafficking of persons in Libya and that “crimes, including killings, rapes and torture, are alleged to be common place in Libya’s holding centres” where those who are trafficked often toil for months, even years.
We now know that such camps, including Tajoura, have been targeted in bombing campaigns that are likely to constitute war crimes.
The United Nations Special Rapporteur on Torture, Nils Melzer has stated that:
“States and the ICC-Prosecutor should examine whether investigations for crimes against humanity or war crimes are warranted in view of the scale, gravity and increasingly systematic nature of torture, ill-treatment and other serious human rights violations suffered by millions of migrants in all regions of the world, as a consequence of corruption and crime, but also as a direct or indirect consequence of deliberate State policies and practices.”
It has not yet happened, but the ICC can – and in the view of many, including myself – should investigate human trafficking as a crime against humanity under the Rome Statute.
But given the constraints facing the court and the size of the problem, this would not be nearly enough. More needs to be done.
To be sure, there are issues and root causes of the situation in Libya that the FFM cannot address. It is important to keep expectations in check.
The FFM cannot alone address ongoing issues of poor governance, underdevelopment and inequality, ongoing insecurity, or porous borders.
But the FFM can help in highlighting and pushing states and courts to think creatively to address the nexus between transnational organised crimes and international crimes.
We must of course think carefully about how to do this.
All too often, victims of human trafficking are victimised once again when their traffickers are arrested and detained. Even in the most developed states, little support exists for victims of human trafficking. Simply prosecuting traffickers while abandoning their victims is not good enough. It is not justice.
Tackling human trafficking and smuggling – and understanding the difference – must not be done in order to merely address and assuage European concerns over migration.
We believe it must rather be a means to address the violence committed against these migrants and to achieve a degree of justice and accountability where there is so little.
More must also be done to demonstrate to global publics that human trafficking is not the same as human smuggling. The former is a crime. The latter is an often desperate cry for help.
We must also, as a matter of justice, push back on vocabulary that is too often used to delegitimise migrants.
The term “illegal migrant”, for example, continues to be popular and feeds into derogatory and dangerous stereotypes, ideas of a border-crashing criminal. We must fight back against such terminology. Some migrants may be irregular or undocumented or have violated regulations, but as Louise Arbour has said: we would not call someone an “illegal taxpayer” for not paying their taxes.
Likewise, it may be time to undermine the idea of migrant “detention centers”. Migrants should not be detained but protected and processed.
All of this is work that the FFM can do.
Likewise, states and international bodies, including the ICC, should be encouraged by the FFM to work together to pool evidence and implement investigation techniques that effectively respond to the fact that international crimes and transnational organized crimes are committed by the same networks, and the same people. And that their victims are often the same too.
The investigation of transnational organised crimes and international crimes is still conducted in distinct silos. But that no longer reflects the reality on the ground for thousands facing either being trafficked or becoming victims of crimes against humanity, or both.
The FFM can help to pinpoint where the overlaps and intersections between transnational organised crimes and international crimes exist in Libya. There are many.
I hope that the FFM can also do some work to ‘follow the money’.
Perpetrators of international crimes and transnational organised crimes too rarely fear being arrested or prosecuted by international courts for war crimes or crimes against humanity. But they absolutely despise having their goods and their wealth taken away.
The promise of linking the investigation and prosecution of transnational organised crimes and international crimes is significant. Properly linking the investigation of these crime sets could breathe new life into the promise of deterring mass atrocities.
Done effectively, potential perpetrators of international crimes could be prosecuted for human trafficking, extortion, arms trafficking, and so on before they commit further atrocities.
It would take a committed, concerted, and coordinated effort. But it is not impossible.
Thank you for your time. I emphasise that Wayamo and I personally remain at your disposal and I look forward to staying in touch.
Follow Mark Kersten at Justice in Conflict.
