On 1 December 2025, German authorities surrendered Khaled Mohamed Ali El Hishri (“Al-Buti”) to the International Criminal Court (ICC), marking the first transfer of a suspect to The Hague since the Libya Situation was referred to the Court in 2011. El Hishri, a senior figure within the Special Deterrence Force (SDF/Al-Radaa), was arrested in Berlin on 16 July 2025 pursuant to an ICC warrant. He is suspected of responsibility for crimes against humanity and war crimes committed between 2015 and early 2020 at Mitiga prison in Tripoli, including murder, torture, sexual violence, persecution, and outrages upon personal dignity.
Charging decisions and potential exclusion of people on the move
With El Hishri now in ICC custody, the proceedings have entered a critical phase. The arrest warrant issued on 10 July 2025 reflects a narrow interpretation of the contextual elements of crimes against humanity. This limitation originated partly from the Prosecution’s own application, which defined the “civilian population” affected by crimes at Mitiga as individuals perceived to oppose SDF/Al-Radaa or its ideology, although it argued that crimes against migrants were sufficiently linked to the attack.
The Pre-Trial Chamber adopted and further restricted this framing, excluding “sub-Saharan African” detainees on the basis that their detention was linked to their migrant status. Most strikingly, while the Chamber acknowledged that the evidentiary material disclosed indicia amounting to enslavement of migrant detainees, this conduct was nonetheless placed outside the case’s contextual framework.
The Prosecution challenged this reasoning, but the Appeals Chamber declined to review it on procedural grounds.
Between now and the end of March 2026, the Prosecutor has the opportunity to propose amendments to the charges. Whether crimes against people on the move will be included in the ICC’s first Libya trial thus depends on whether the scope is expanded and accepted at the 19 May 2026 confirmation of charges hearing — a decisive moment given the Court’s limited progress to date on crimes against people on the move in the Libya Situation.
Victim participation and state cooperation
Broadening the scope of charges is only part of ensuring justice. Meaningful victim participation will be central to ensuring the proceedings are fair and reflect the gravity of the crimes suffered. Accountability also depends on effective cooperation by Libyan authorities and ICC States Parties, as required by the Rome Statute and UN Security Council Resolution 1970. Yet successive Libyan authorities in both eastern and western Libya have failed to cooperate with the Court, allowing those suspected of criminal responsibility to continue operating with impunity.
Germany’s transfer of El Hishri demonstrates how cooperation with the ICC should function, even as its public position regarding the enforcement of certain other ICC arrest warrants stands in tension with this example. By contrast, Italy’s failure to surrender Osama Elmasry Njeem following his arrest on an ICC warrant in January 2025 undermined accountability and reinforced impunity. Rejecting Italy’s reliance on domestic law and national security arguments, the ICC found Italy in breach of its Rome Statute obligations in October 2025 and, in January 2026, referred Italy’s non-compliance to the ICC Assembly of States Parties.
El Hishri’s surrender to the ICC is an important step toward justice, truth, and reparation. But it will only mark a genuine turning point if the proceedings recognize the full range of crimes alleged against El Hishri in Mitiga, including those targeting people on the move and Libyan victims, and if all States uphold their cooperation obligations consistently.
Allison West, Senior Legal Advisor at ECCHR
Website: https://www.ecchr.eu/en/
