A/HRC/37/50
59.
In sum, in the view of the Special Rapporteur, destination States cannot circumvent
their own international obligations by externalizing or delegating their migration control
practices to other States or non-State actors beyond their jurisdictional control. Instead, any
instigation, support, or participation on their part may give rise to complicity in, or jointresponsibility for, unlawful "pullback" operations and the resulting human rights violations,
including torture and ill-treatment.
F.
Implications under International Criminal Law
60.
As has been shown, throughout the world, migrants are subject to widespread and
serious human rights violations, including not only torture, but also murder, enslavement,
deportation and forcible transfer, arbitrary detention, rape, sexual slavery, enforced
prostitution and other forms of sexual violence, persecution, enforced disappearance,
apartheid and other inhumane acts of a similar character. In many contexts, these violations
are the direct or indirect result of deliberate policies and practices adopted by States with a
view to deterring, punishing or controlling irregular migration. In other contexts, they are
caused by criminal groups or aggressive behaviour on the part of the local population. For
the most part, these violations follow a programmatic pattern that can only be described as
systematic.
61.
In view of the scale and gravity of these violations, and their irrefutable causal
connection to the policies, practices and failures of States, the Special Rapporteur feels
compelled to recall that widespread or systematic breaches of the most fundamental human
rights engage not only the legal responsibility of States but also give rise to the possibility of
individual criminal responsibility for crimes against humanity and war crimes before
international and national courts. These crimes are well-established in customary
international law, within the Statute of the International Criminal Court (ICC) and in many
national legal systems.90
62.
Significantly, criminal "intent" does not require that torture and ill-treatment be the
desired purpose or outcome of a law, policy or practice. Under the ICC Statute, intent is
already established when perpetrators are aware that, “in the ordinary course of events”, their
conduct or omissions will expose persons to torture and ill-treatment,91 whereas under
customary international law that threshold is even lower and only requires the perpetrators'
awareness of "a substantial likelihood" that torture or ill-treatment would occur as a
consequence of their conduct.92 Moreover, crimes against humanity and war crimes can be
committed not only through personal perpetration, but also through various forms of
participation in the conduct of others, such as co-perpetration, complicity, instigation, joint
criminal liability and superior responsibility. 93 Where persons have a legal duty to prevent
torture and ill-treatment within their sphere of influence, culpable failure to do so may entail
criminal responsibility by omission. Last but not least, neither official capacity94 nor superior
orders95 provide immunity from prosecution, and both war crimes and crimes against
humanity are subject to universal jurisdiction and exempt from statutes of limitation.96
90
91
92
93
94
95
96
Art.7(1) and 8 ICC Statute. For a database of relevant national law and jurisprudence, see:
https://www.legal-tools.org/
Art.30 ICC Statute.
ECCC, Prosecutor_v._KAING_Guek_Eav_alias_"Duch"(No.001/18-07-2007/ECCC/TC),
Jgmt_26.07.2010, §481; ICTR, Prosecutor_v._Nahimana_et_al.(99-52-A), Jgmt 28.11.2007, §479;
SCSL, Prosecutor_v._Brima_et_al.(2004-16-A), Jgmt 22.02.2008, §§242-247.
Art.25, 28 ICC Statute; CAT/C/GC/2(24.01.2008), §26.
Art.27 ICC Statute.
Art.33 ICC Statute; Art 2(3)_UNCAT; CAT/C/GC/2(24.01.2008), §26.
Art.29 ICC Statute. See also: Amnesty International, "Universal_Jurisdiction:_A_Preliminary_Survey
_of_Legislation_Around_the_World" (Updated 2012); UN Convention_on_the_Non-Applicability_of
_Statutory_Limitations_to_War_Crimes_and_Crimes_against_Humanity (1968);
European_Convention_on_the_NonApplicability_of_Statutory_Limitations_to_Crimes_against_Humanity_and_War_Crimes (1974), and
Rule 160 ICRC Customary International Humanitarian Law Study.
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