By Omer Shatz
The case against Khaled Mohamed Ali El-Hishri, currently pending at the International Criminal Court, is one of the most significant cases concerning the rights of migrating people in recent years. Over the last decade, more than 150,000 civilians have been abducted at sea, forcibly transferred to and detained in Libya, where they were subjected to heinous crimes – some of which were committed by the prison commander El-Hishri. And yet, many of those responsible for these crimes are not and likely never will be on trial before the court. In his op-ed, Omer Shatz, one of the victims’ defendants, argues that the International Criminal Court helps shield the European Union from accountability.
It was a particularly sunny day in Courtroom 1 of the International Criminal Court (ICC) in The Hague when the first trial in history concerning crimes against humanity committed against refugees began. Everyone seemed to be in good spirits. The Prosecutor called the case against El-Hishri a huge milestone. Judge Iulia Motoc, in one of her many social-media posts, also spoke of a huge milestone. Lawyers, NGOs, and journalists crowded into the cafeteria, held press conferences, and agreed that this was, indeed, a huge milestone.
I, too, should have been pleased. Seven years after I co-submitted to the Prosecutor the first case concerning crimes against humanity committed against refugees on the Central Mediterranean route, the first such trial had finally opened. The cases I and my organization front-LEX co-submitted in 2019 and 2025 [crimesagainsthumanity.eu] exposed actors beyond the usual suspects – the Libyan executors – namely the policymakers who designed the policies, the politicians who initiated the campaign, and the bureaucrats who developed the required legal, financial, and operational frameworks under the aegis of an unprecedented apparatus of power, composed of no less than 28 European countries in addition to the EU’s own institutions. In 2023, the UN corroborated my allegations (FFM press conference/final report at 22:40 > 24:37), finding that, for the first time since the Nuremberg trials, European officials are participating in these crimes.
Deconstructing this joint criminal enterprise enabled the identification of the principal authors of the crimes. This is a mandatory task since the ICC was established to prosecute those most responsible: superiors, not subordinates; high-level politicians, bureaucrats, and commanders, not low-level militiamen, functionaries, or soldiers. Yet these senior actors were completely absent from the written indictment on which the El-Hishri hearings were based. The Prosecutor did not mention them in her oral pleadings. Judge Motoc remained silent on both Facebook and LinkedIn. The Defendant’s lawyers refrained from using what would have been a rather good line of defence. Even the so-called victims’ lawyer did not dare to explicitly name the large animal standing, calmly and expensively, in Courtroom number 1.
But that is not why I could not be pleased. I could not join the party because I was not allowed to perform my job: representing my client, Meryam, as an attorney in this case’s pre-trial hearings. Meryam is a young woman from West Africa who was abducted from her home and brought to Libya, and had never dreamed of migrating anywhere. In twenty years of lawyering, I have represented hundreds of victims of international crimes, and I have never heard a story marked by such sadism as Meryam’s.
I could not represent Meryam because the Court had refused to permit designated lawyers to represent victims in the proceedings against their victimizer. Victims’ participation equates to their legal representation, and without representation, there is no participation. One should not accept a judicial institution abusing its power to exclude those whose suffering it had gathered to adjudicate.
Thus, once the refugees’ lawyers were deported from the Courtroom to the cafeteria, I found myself hastily drafting a request to appeal the Court’s baseless decision.
In front of the ICC in The Hague during the Hearings
When Meryam’s case was referred to me, I knew she was a victim of Al-Masri, a Libyan militiaman who raped and abused her. Al-Masri was arrested in Italy pursuant to an ICC arrest warrant. But instead of surrendering him to The Hague, the Italian government released him and smuggled him back to his country as a free man. In response, I submitted an ICC case against the Italian Prime Minister and two ministers in her government for obstruction of justice. That case concerns European, not African suspects, and hence, like the case against the elephant in Courtroom number 1, is still sitting on the Prosecutor’s desk, like a potted plant waiting to be watered.
After El-Hishri, another Libyan militiaman, was arrested in Germany and this time surrendered to The Hague, I gave up my Christmas holiday and travelled to meet Meryam. I had an intuition that she might also know El-Hishri. Little did I know. When I showed Meryam El-Hishri’s photograph, she collapsed. After she recovered, it became clear that Al-Masri’s acts paled in comparison with the sexual abuse she had suffered at the hands of El-Hishri. The violence was so extreme that her only friend during those months of rape and torture died in her arms due to the abuse. To this day, Meryam, a victim of sexual and gender-based violence, remains under medical and psychological treatment in her European country of asylum.
Because the Libyans who harmed her are white, she has no trust in white people. Even when she was drowning in the Mediterranean, she hesitated to reach out to the white hands that came to rescue her. When I explained to her the system of participation and representation before the Court, Meryam told me she wanted to ensure the man who had destroyed her life would spend the rest of his own behind bars. She was eager to participate in the proceedings against Al-Hishri. But she had one condition: that only the two white people she trusts in this world would be her legal representatives: the local lawyer who had taken her under her wing in her country of asylum and had become like a mother to her, and me. Before we parted, Meryam signed two standard documents. One was a power of attorney. The other was an ICC form seeking recognition as a victim. In the section dedicated to legal representation, the victim was asked whether she would agree to representation appointed by the ICC. Meryam refused: I trust only my lawyers, she reiterated.
The ICC allows victims of the most heinous crimes mankind has invented to participate in proceedings against their victimizers. Yet most victims are unaware of these proceedings. They do not have the means to leave their countries, travel to and from The Hague, and regularly attend trials that last for years. In the case of refugees, they may even be unable to do so for legal reasons. Living with trauma, the trial may reawaken everything they want to forget. It may collapse the fragile lives they are painfully rebuilding in a new place. They are too busy surviving. Moreover, it is unlikely that they are familiar enough with the Court for such participation to be legally meaningful. This is why, when the ICC allows victims to participate in proceedings, that participation is attached to, and can only be realized through, legal representation by experienced lawyers admitted to the ICC List of Counsel. I am one of them.
The victim application was submitted to the ICC Victims Section. An application for participation in the trial was submitted to the Court’s Registry. The Prosecutor’s Office was approached so that the smoking gun, called Meryam, could testify and serve as evidence against the accused. I was certain that the various organs of the ICC would quickly recognize the evidentiary value of her story and the need to consolidate her trust in the Court by letting her participate and be represented. The Court reacted differently. First, it attempted to exclude her from the trial by doubting the duration and location of her detention. After I showed why those doubts were misplaced and she was authorized to be one of 64 out of 5,000 victims to participate in the trial, the Court moved to exclude her designated ICC counsel, me, from the trial.
In the Al-Hishri case, there are two distinct groups of victims: one group of non-Libyans, or “black migrants” as the Prosecutor shamefully calls them, and another group of Libyans. The ICC Registrar proposed that both groups be represented by one Common Legal Representative team, composed of three NGO lawyers, including myself, and the ICC’s own Public Counsel for Victims. The Registrar requested our consent to recommend this to the Court, which usually accepts such proposals as a matter of practice. It seemed that everyone had agreed to collaborate in this huge milestone case. Only then did I receive a request for an urgent call.
On the other end of the line were ICC officials. I was informed that, because one of the three nationalities I hold is Israeli, because I was one of the four lawyers supposed to represent both groups of victims, and because Libya has a law penalizing contact with Israelis, ‘someone’ had objected to my membership in the team, claiming that the Libyan victims would be exposed to risk. The Registrar, therefore, intended to make no recommendation to the Court regarding legal representation for the victims.
My response to the Court’s officials was that, in my view, making no recommendation at all is inconsistent with their role of doing everything possible to facilitate victims’ participation and representation. I reminded them that an Israeli ICC counsel had represented Ms. Gaddafi. I reminded them that denying representation to a victim based on the nationality of her lawyer may amount to prohibited discrimination.
Half of the ICC is under US sanctions, and now the ICC sanctions its own counsel? In Israel, legislation is being advanced threatening me with life imprisonment for working with the ICC, and now the ICC itself is abiding by the rule of another oppressive regime, hindering the right to legal representation?
Be that as it may, I reminded them that in such a situation, as with a potential conflict of interest between groups of victims, the relevant ICC law prescribes not the absence of representation but its separation. That my representation allegedly threatened the “Libyan” group could, at best, hinder me from representing them together with the rest of the team, but not from representing my non-Libyan client, Meryam. I was then asked whether I agreed to do so pro bono, and once I did, this proposal was put before the Court.
The Court, however, rejected this recommendation. Instead, it appointed the in-house ICC lawyer, the Public Counsel for Victims, to represent all the victims, including my client. The legally dubious reasons given for denying the victims’ right to participation through representation by their chosen lawyers were the low number of victims and the short time remaining: only three working days until the hearings. The number of victims (64) is indeed tiny, especially compared with the number of persons allegedly victimized by the accused (5,000). But if anything, this is a reason to allow representation by chosen and, if necessary, separated lawyers, not a reason to reject it. By comparison, in the Duterte case, judged by the same Chamber, hundreds of victims (539) were approved to participate in the trial, and the Court adopted the Registrar’s recommendation to allow them to be represented by a common legal representative team.
The second justification advanced by the court – the short time remaining until the hearings – is even more embarrassing. The investigation in this situation lasted fifteen years. Yet the Court decided on the victims’ representation three working days before the hearings. If time was too short for proper representation, this lay with the Court, not with the victims. If time is too short, it is too short for any lawyer, irrespective of his or her identity, and there is no logical connection to the victims’ right to choose their representatives. Worse still, under ICC law, victims have five days to seek leave to appeal a decision concerning their representation.
The Court therefore not only issued its decision with intolerable delay, in a manner that frustrated proper representation regardless of who represented the victims; it did so in a manner that also frustrated their ability to appeal – namely, their right to judicial review, remedy, and due process – since they were not given the five days required under the ICC’s own rules to decide on whether to seek leave to appeal.
Unlike all the other victims, Meryam nevertheless decided to submit a last-minute appeal. Procedurally, she argued that a Court cannot issue an appealable decision that leaves no time to exhaust the legal period for appealing it. Substantively, she argued that since her willingness to participate depended on being represented by her designated ICC counsel, the Court cannot force another lawyer on her, let alone when the imposed lawyer is directly acting against her instructions and distinct interests.
The Court only responded after the hearings ended, when the remedy had already become a piece for the museum. It did not explain how a five-day right of appeal could survive a decision issued three working days before the hearing. Nor did it bother to explain why the Court’s own delay should be visited on the victim. And it also failed to explain how a victim who refused Court-appointed counsel could be represented by precisely such counsel – a counsel who had acted against her express requests and wishes. The arguments were not addressed and rejected. They were passed over in silence.
Instead of engaging with Meryam’s solid arguments, Judge Motoc played musical chairs. She first expelled her, a party to the proceedings as an authorized participating victim, from her appellant chair, only to substitute her with her counsel. She then dismissed the leave to appeal because the filer – brace yourself – was not a party to the proceedings. Although, as was clear from the application itself, it was Meryam who had submitted the application to the Court, the Court held that a victim’s lawyer is not a party to the proceedings and therefore has no right to seek leave to appeal a decision.
If one of my students wrote something like this in one of the courses I teach at Sciences Po, they would receive a failing grade. Since when is a lawyer a party to proceedings? A lawyer is never a party to proceedings. A lawyer represents a party to proceedings. I am not appealing to represent a party to the proceedings. A party to the proceedings is appealing to be represented by her lawyer. The application for leave to appeal was filed by Meryam through the same lawyer who had, over many months, held countless meetings with various organs of the Court, including the Prosecution, the Registry, and the Victims Section. These acts of representation were based not only on a signed power of attorney but also on various official ICC documents, such as Meryam’s victim form and her application to participate in the trial.
In this way, through judicial decisions with no discernible basis in law, Judge Motoc stripped the refugees of their right to representation and, thus, essentially expelled them from Courtroom 1, confining them to the cafeteria, where their lawyers marked the huge milestone represented by a trial they were excluded from.
Judge Motoc, however, was only a proxy of the elephant everyone had politely agreed not to see. Those who dared to look straight could make out his familiar features. The elephant that deported the refugees outside of the El-Hishri trial is the same one that had earlier deported them back to Libya and handed them over to El-Hishri.
Using proxies to avoid legal responsibility is hardly new for this European elephant. Be it on the Central Mediterranean route or in the courtroom, be they El-Hishri or Judge Motoc, the expulsion of refugees by proxies is designed to ensure the EU avoids any legal responsibility for co-perpetrating the crimes El-Hishri is accused of. This is why there was no room for an independent lawyer, meaning one not on the Court’s payroll, in Courtroom 1. For an independent victim’s lawyer would, God forbid, point to the animal and call it by name, or simply ask the forbidden questions: How did victims get from the high seas into the hands of the accused? Who supplied more than 150,000 human beings – toddlers, women, and men – to this industry of crimes against humanity in Libya over the past decade? Who financed the accused so that he could commit his crimes?
Over the past decade, the European Union paid the government under which El-Hishri operated nearly one billion euros in taxpayers’ money. During the same period, the European Union paid the International Criminal Court in The Hague a similar amount. Even one of the NGOs representing victims in this case is supported by the EU. This means that the EU paid the accused his monthly salary for committing crimes; the EU also paid the salaries of the Prosecutor and judges so that they prosecute and judge him for committing these crimes; and now the EU even pays the salary of the so-called victims’ lawyer. Like El-Hishri and Al-Masri, Judge Motoc, Prosecutor Nazhat Shameem Khan, and the Public Counsel for Victims are the EU’s useful proxies: each performs, in their institutional capacity, the work the EU demands: to prevent the arrival of refugees on its shores, whilst remaining unaccountable for the criminal means used to this end.
The use of proxies as executants is a typical form of a joint criminal enterprise. As is often the case in International Criminal Law, the paradigmatic example is World War II. My own grandmother, who lived and attended high school in The Hague, experienced it firsthand. Her theology teacher was a Protestant woman and a member of the resistance. When the interceptions and transfers of Jews and others to the camps began, my grandmother’s life was saved by that righteous and courageous person. She separately hid my grandmother, her sister, and her parents in various places; some never saw daylight, and some had false identities throughout the years of the war. My grandmother’s parents were caught and exterminated. My grandmother’s identity was exposed, but she managed to flee for her life. She suffered hunger but survived by the skin of her teeth.
My grandmother and her family
The ICC was established in The Hague as a lesson from everything that had happened to my family. Like millions of others, they were imprisoned, tortured, enslaved, and starved by Poles and Lithuanians. But it were Germans who conceived the plan and organized the machinery of their transfer to the camps. Today, refugees are imprisoned, tortured, enslaved, and starved by Libyans. But it is Germans and other Europeans who conceive the plans and organize the machinery of their transfer to the camps. Without EU involvement from the air, sea, and land in the interception at sea and deportation of countless asylees to concentration camps on land, the Libyans would have had few if any victims to victimize. Just as it was the Germans who conceived their criminal plan while Poles and Lithuanians carried it out, so too it was EU officials who conceived the plan while Libyans such as Al-Hishri and Al-Masri carried it out.
Had there been an International Criminal Court in my grandmother’s city, The Hague, to try those who planned to exterminate my grandmother, I would not have wanted her lawyer to be financed by them. I would have wanted them to stand trial before, or at the very least alongside, those who carried out their plan.
Dr. Omer Shatz is co-founder and co-director of front-LEX. He leads a team focused on strategic litigation challenging EU migration policies before international and European Courts. A Yale Law School graduate, he is also a lecturer in International Law at Sciences Po and is listed as ICC Counsel. In Israel\Palestine, he co-founded a law firm that specialized in Supreme Court litigation of high-profile human rights matters. He co-founded “We Are Refugees”, an NGO that provided pro-bono representation to detained asylees. In France, he was a senior associate at the international law firm Shearman & Sterling LLP.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
