Bad Judges Make Bad Law: How Refugee Victims Were Expelled from the First Trial Concerning Their Victimization

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 […]