Check out the Kaldor Centre for International Refugee Law’s new web page with “analysis and resources on two upcoming international summits on refugees: the United Nations Summit for Refugees and Migrants on 19 September, and the Leaders’ Summit on Refugees hosted by US President Barack Obama on 20 September. This page will be regularly updated in the lead up and aftermath of the summits.”
Kaldor Centre’s web page with background and commentary on upcoming UN Summit for Refugees and Migrants and Leaders’ Summit on Refugees
NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey
NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.
NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.
NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.
EUNAVFOR MED-Six Month Report: No Indication of Refugee Protection Plan for EU Operations within Libyan Territorial Waters and No Reports of Human Trafficking
There is a lot of information in the EUNAVFOR MED Operation SOPHIA Six Month Report (also here: EEAS-2016-126) that was released last week by WikiLeaks, but there are two subjects not discussed which jumped out at me.
No Discussion of Refugee Protection Plan
First, the Report does not contain information regarding what the EU military force intends to do with migrants who are intercepted or rescued by EU vessels if and when EUNAVFOR MED patrols begin to operate within Libyan territorial waters.
The Report’s ‘Next Steps and Key Challenges’ section [pp 19-21] discusses different EU contingency plans for Phase 2B of the operation and specifically discusses how suspected smugglers arrested by EU forces within Libyan territorial waters would be handled. The Report says suspected smugglers should not be turned over by EU forces to Libyan officials for criminal prosecution unless it can be ensured ‘that they [will be] treated in accordance with human rights standards that are acceptable to the EU and Member States.’ According to the Report, forty-six suspected smugglers have been arrested by EUNAVFOR MED in international waters (between 22 June and 31 December 2015) and all of these individuals have been turned over to Italian authorities for prosecution by Italy’s DNAA – Direzione Nazionale Antimafia ed Antiterrorismo. Italy is so far the only EU Member State prosecuting suspected smugglers.
But unlike the discussion regarding the treatment of suspected smugglers, there is no discussion in the Report about where migrants who are intercepted or rescued in Libyan territorial waters will be taken or how they will be processed. It is certainly possible that intercepted migrants would continue to be taken from Libyan territorial waters to Italy, as is currently the case with operations on the high seas, but I suspect this may not be the plan once EUNAVFOR MED operations are expanded to Libyan territorial waters.
The fact that there is no discussion in the Report of where intercepted migrants will be taken does not mean that EUNAVFOR MED does not have appropriate plans in place, but the omission is troubling because the Report makes clear that once Phase 2B (territorial waters) operations begin, EUNAVFOR MED forces will be interacting and cooperating with the Libyan Navy and Coastguard. (The Report also notes that if requested and if its mandate is amended, EUNAVFOR MED is ready to begin quickly providing capability and capacity building to the Libyan Navy and Coastguard.)
EUNAVFOR MED’s interaction with Libyan forces in territorial waters would, according to the Report, initially include Libyan ‘cooperation in tackling the irregular migration issue’, with the expectation that at a later point in time ‘Libyan authorities could take the lead in patrolling and securing their Territorial Waters, with support being provided by EUNAVFOR Med.’ The Report therefore describes a changing scenario where EU forces would first act alone in Libyan territorial waters, which would lead to some level of cooperation with Libyan authorities (joint patrols? shipriders?), which would finally lead to Libyan authorities taking the lead on enforcement activities, with the EU playing a supporting role of some sort.
The legality of the Phase 2B operations will depend on the details of how intercepted or rescued migrants are processed and where they are taken. EU Member States operating within EUNAVFOR MED would necessarily be exercising effective control over migrants when operating unilaterally or jointly with Libyan forces within Libyan territorial waters and EU Member States would therefore be bound by the non-refoulement obligations in the ECHR, the Refugee Convention, the CAT, and the ICCPR. Any such operations would be subject to the 2012 Hirsi Jamaa v Italy judgment of the ECtHR which rejected Italy’s past push-back practices and close cooperation with the pre-Arab Spring Libya, finding the push-back practices to violate the ECHR’s prohibition on non-refoulement and to constitute collective expulsion.
EUNAVFOR MED’s Phase 2B operation seeks to replicate what Frontex and Spain have done off the coasts of Mauritania, Senegal and Morocco since 2006 pursuant to Joint Operation HERA where Spain and Frontex initially deployed naval patrols in international waters, then negotiated bilateral agreements to move patrols to territorial waters, deployed joint patrols and shipriders within territorial waters, and then continued to provide various forms of support to Mauritania and other West African states to patrol their own territorial waters. Operation HERA succeeded in stopping most boat migration from West Africa, but did so in a manner which did not provide any process to screen intercepted migrants for claims for international protection and subjected intercepted migrants to refoulement.
In order to ensure that non-refoulement obligations are respected and that rights of migrants are otherwise protected, as the EU and EUNAVFOR MED move towards implementation of Phase 2B operations within Libyan territorial waters, more information and transparency is needed to determine and monitor the legality of all aspects of the operations.
No Reports of Human Trafficking
The second perhaps less significant piece of information that jumped out at me as I read the Report was the lack of any suggestion that EUNAVFOR MED patrols have discovered evidence of human trafficking. The Report makes multiple references to trafficking, but always in conjunction with human smuggling, eg, ‘smuggler and traffickers’ business model’, ‘smuggler and trafficker vessels’. The use of the trafficking term seems to be a continuation of the use of imprecise terminology (and possible ongoing confusion over the differences between human trafficking and smuggling as well?). But the Report’s ‘Smugglers’ Business Model’ section [pp 6-8] is clearly only discussing acts of smuggling.
WikiLeaks yesterday released the ‘EUNAVFOR MED Op SOPHIA – Six Monthly Report’. (Also available here: EEAS-2016-126.) The 22 page document is classified as EU RESTRICTED and provides a detailed description of EUNAVFOR MED’s operations during the period 22 June-31 December 2015 and discusses the next steps for the operation, including the move to Phase 2B which would entail operations within Libyan territorial waters. The operation currently operates outside of Libyan territorial waters consistent with UN Security Council Resolution 2259 (2015). The report is signed by Rear Admiral Enrico CREDENDINO, EUNAVFOR MED Op SOPHIA Operation Commander.
Here are some selected excerpts from the report:
Smugglers’ Business Model –
…Wooden boats are mainly used for migrant smuggling to the west of Tripoli, and rubber boats are more common to the east of Tripoli. Wooden boats are more valuable than rubber dinghies because they can carry more people, hence more profit for smugglers and are more resilient to bad weather and can be re-used if recovered by smugglers. However, following operation SOPHIA entering into Phase 2A (High Seas), smugglers can no longer recover smuggling vessels on the High seas, effectively rendering them a less economic option for the smuggling business and thereby hampering it.
Inflatable boats are used in two thirds of the cases and wooden boats in one third of the cases. According to intelligence sources, the wooden boats used are purchased from Libyan fishermen or imported from Tunisia and Egypt. EUNAVFOR MED are monitoring, within capabilities, the supply routes for these, but no detection has been obtained to confirm beyond any reasonable doubt this supply method.
Reports of rubber boast being imported from China and transhipped in Malta and Turkey are supported by a recent interception by Maltese customs of 20 packaged rubber boats in a container destined for Misratah, Libya. As there are no legal grounds for holding such shipments, it was released for delivery to the destination….
Legal Basis for Phase 2A – High Seas –
…The legal basis applicable to phase 2A (High Seas) relies on the international law applicable to the Operation (UN Convention on the Law of the Sea, Palermo protocol against the smuggling of migrants by land and sea) and on individual Member States’ application of the EU mandate through domestic legislation to board, seize and divert vessels and to detain suspected smugglers and traffickers. The adoption of UNSCR 2240 (2015) by the UN Security Council on 9 October, reinforces the legal framework applicable to EUNAVFOR MED activities in international waters. The resolution now provides the legal basis for all Member States to undertake these activities against suspected smugglers and traffickers coming from Libya….
Cooperation with International Organisations –
…In particular we have embedded the training initially provided by UNHCR on migrant handling and international law and this is now a core part of the inchop [command zone] package for new units joining the operation. We are further building on this training with input from UNICEF….
Campaign Assessment –
…Entry into Libyan Territorial Waters will undoubtedly allow us to achieve further success as we get towards the heart of [smuggler and trafficker] networks….
…From a military perspective, EUNAVFOR MED is ready to proceed to Phase 2B (Territorial Waters), though the political and legal challenges ahead remain a significant challenge….
…Transition from phase 2A to 2B [Libyan Territorial Waters] will require for a number of significant challenges to be resolved before I can actually recommend the transition.
Next Steps and Key Challenges-
From a military perspective, and to be more effective against the smugglers’ business model, I need to move to phase 2B (Territorial Waters) as soon as possible. However there are a number of key issues that need to be addressed. These are:
The Legal Finish.
As we will be operating in Libyan Territorial Waters, the current legal finish, of prosecuting suspected smugglers in Italy will not apply. We will therefore need a new legal basis; either an agreement with the Libyan authorities that they will waive their right to prosecute suspected smugglers in Libya and allow them to be prosecuted by another Member State, or to have a transfer agreement in place for apprehended smugglers to be transferred to the Libyan authorities for prosecution. Both options have specific challenges end rely on the consent of the Libyan authorities. If we were to transfer suspected persons to the Libyan authorities, we would need to ensure that they are treated in accordance with human rights standards that are acceptable to the EU and Member States….
…Regardless of the challenges with both options, we are working very closely with the EEAS to come to a workable solution. It is however clear that regardless of the solution taken, the Libyan authorities are fundamental in making this happen, either by providing the agreement to prosecute in another country, or to agree to prosecute in Libya through a judicial system which meets those standards required by the EU. I want to underline the fact that this issue must be solved before we can move to phase 2 Bravo. Without the required legal finish we will be compelled to release suspected smugglers apprehended in Libyan Territorial Waters, with a subsequent loss of credibility for the operation in the media and EU public opinion.
Legal mandate – UNSCR and Libyan Invitation.
In order to move to phase 2 in Libyan territorial waters, we need firstly an invitation from the GNA, as the sole legitimate Government of Libya under UNSCR 2259(2015), and secondly a UN Security Council Resolution to provide the necessary legal mandate to operate. Whilst the transition to phase 2 in Libyan TTW with only a UNSCR without an invitation from the Libyan authorities is theoretically possible, it is unlikely that the UNSCR would be adopted as Russia and China have previously stated that a Libyan invitation would be required by them so as not to block the resolution….
Capacity and Capability Building –
As we move into Territorial Waters, our interaction with the Libyan Navy and Coastguard will increase and we will need to gain confidence in their activities. The capability and capacity of the Libyan Coastguard to protect their borders needs to be developed and therefore preventing illegal migration from Libyan shores, so that we can reach the end state of the mission where illegal migration is at a manageable level without the need for EUNAVFOR Med. This will have to be shaped with Libyan authorities to match their expectations and could benefit from cooperation with other EU missions….
Clarification of Frontex Data On Persons Detected at EU External Borders – Includes Significant Double Counting
Yesterday Frontex released updated monthly data showing that 710,000 migrants crossed the EU’s external borders from January to September 2015. In a Twitter exchange with Nando Sigona (Univ. of Birmingham and Univ. of Oxford), Frontex clarified that it counts an individual migrant each time she crosses an external border; according to Frontex, “[t]his means that a large number of the [710,000] people who were counted when they arrived in Greece were again counted when [after passing through Greece, they entered] the EU for the second time through Hungary or Croatia.”
The 710,000 figure that was widely reported yesterday may overstate the number of individuals crossing the external borders by several hundred thousand. For example, Frontex reported that 350,000 migrants arrived in the Greek islands during the first nine months of 2015 and that 204,000 migrants crossed into Hungary during the same time period. Presumably a majority (or at least a very significant portion) of the migrants crossing into Hungary initially entered the EU via Greece and were counted at that time. Many of the tens of thousands of migrants who crossed into Croatia likewise presumably first entered the EU through Greece.
Frontex did add a disclaimer to its web site explaining the double counting: “Clarification: Frontex provides monthly data on the number of people detected at the external borders of the European Union. Irregular border crossings may be attempted by the same person several times in different locations at the external border. This means that a large number of the people who were counted when they arrived in Greece were again counted when entering the EU for the second time through Hungary or Croatia.”
And to be fair, Frontex has at times previously acknowledged that its figures include double counting. See the press statement from 14 September reporting 500,000 migrants having been detected at the external border: “However, a large number of the persons detected at the Hungarian border with Serbia had already been counted when they arrived in Greece from Turkey a few weeks earlier.” But the fact remains that much of the news coverage generated by the Frontex data will not explain the double counting.
While the use by Frontex of satellite imagery is not new, Frontex released a copy of a satellite image used last week to detect and rescue 370 people on board three inflatable boats off the Libyan coast. (It is unclear whether the image made available by Frontex shows the actual spatial resolution available to Frontex.)
According to Frontex, the imagery is part of “Frontex’s Eurosur Fusion Services … made possible by the cooperation between experts at Frontex and the European Maritime Safety Agency (EMSA), Italian authorities and EUNAVFORMED. … The Eurosur [fusion] services already include automated large vessel tracking and detection capabilities, software functionalities allowing complex calculations for predicting positions and detecting suspicious activities of vessels, as well as precise weather and oceanographic forecasts. Fusion Services use optical and radar satellite technology to help locate vessels at sea. Recent upgrades of their technical capabilities make it possible to spot smaller vessels.”
Frontex has used satellite imagery for years, for example in 2008 during Frontex Operation Hera off Mauritania, Amnesty International reported that satellite photos would be presented to Mauritanian authorities to demonstrate that migrants on board a particular migrant boat had departed from Mauritania territory. (Amnesty International, “Mauritania: ‘Nobody Wants to Have Anything to Do With Us,’ Arrests and Collective Expulsions of Migrants Denied Entry Into Europe,” 1 July 2008.)
UN Security Council Resolution 2240: Authorizing Member States to Intercept Vessels off Libyan Coast Suspected of Migrant Smuggling
Official text here.
Text (unofficial) of UN Security Council Resolution 2240: Authorizing Member States to Intercept Vessels off Libyan Coast Suspected of Migrant Smuggling
Here is the unofficial text of S/Res/2240 (2015) via the UN Security Council – Meetings Coverage. The official text will appear here (under embargo – not yet posted). For information media. Not an official record.
The Security Council,
“Recalling its press statement of 21 April on the maritime tragedy in the Mediterranean Sea,
“Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Libya,
“Recalling that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982, sets out the legal framework applicable to activities in the ocean,
“Reaffirming also the United Nations Convention against Transnational Organized Crime (UNTOC Convention) and its Protocol against the Smuggling of Migrants by Land, Air and Sea, as the primary international legal instruments to combat the smuggling of migrants and related conduct, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UNTOC Convention, as the primary international legal instruments to combat trafficking in persons,
“Underlining that, although the crime of smuggling of migrants may share, in some cases, some common features with the crime of trafficking in persons, Member States need to recognise that they are distinct crimes, as defined by the UNTOC Convention and its Protocols, requiring differing legal, operational, and policy responses,
“Deploring the continuing maritime tragedies in the Mediterranean Sea that have resulted in hundreds of casualties, and noting with concern that such casualties were, in some cases, the result of exploitation and misinformation by transnational criminal organisations which facilitated the illegal smuggling of migrants via dangerous methods for personal gain and with callous disregard for human life,
“Expressing grave concern at the recent proliferation of, and endangerment of lives by, the smuggling of migrants in the Mediterranean Sea, in particular off the coast of Libya and recognizing that among these migrants may be persons who meet the definition of a refugee under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto,
“Emphasizing in this respect that migrants, including asylum-seekers and regardless of their migration status, should be treated with humanity and dignity and that their rights should be fully respected, and urging all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable, stressing also the obligation of States, where applicable, to protect the human rights of migrants regardless of their migration status, including when implementing their specific migration and border security policies,
“Reaffirming in this respect the need to promote and protect effectively the human rights and fundamental freedoms of all migrants, regardless of their migration status, especially those of women and children, and to address international migration through international, regional or bilateral cooperation and dialogue and through a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit and destination in promoting and protecting the human rights of all migrants, and avoiding approaches that might aggravate their vulnerability,
“Further recalling the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue,
“Expressing further concern that the situation in Libya is exacerbated by the smuggling of migrants and human trafficking into, through and from the Libyan territory, which could provide support to other organised crime and terrorist networks in Libya,
“Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations,
“Underlining the primary responsibility of the Libyan Government to take appropriate action to prevent the recent proliferation of, and endangerment of lives by, the smuggling of migrants and human trafficking through the territory of Libya and its territorial sea,
“Mindful of the need to support further efforts to strengthen Libyan border management, considering the difficulties of the Libyan Government to manage effectively the migratory flows in transit through Libyan territory, and noting its concern for the repercussions of this phenomenon on the stability of Libya and of the Mediterranean region,
“Welcoming support already provided by the most concerned Member States, including Member States of the European Union (EU), taking into account inter alia the role of FRONTEX and the specific mandate of EUBAM Libya in support of the Libyan Government, and by neighbouring States,
“Acknowledging the European Council statement of 23 April 2015 and the press statement of the African Union Peace and Security Council of 27 April, which underlined the need for effective international action to address both the immediate and long-term aspects of human trafficking towards Europe,
“Taking note of the Decision of the Council of the European Union of 18 May 2015 setting up ‘EUNAVFOR Med’ which underlined the need for effective international action to address both the immediate and long-term aspects of migrant smuggling and human trafficking towards Europe,
“Taking further note of the ongoing discussions between the EU and the Libyan Government on migration related issues,
“Expressing also strong support to the States in the region affected by the smuggling of migrants and human trafficking, and emphasizing the need to step up coordination of efforts in order to strengthen an effective multidimensional response to these common challenges in the spirit of international solidarity and shared responsibility, to tackle their root causes and to prevent people from being exploited by migrant smugglers and human traffickers,
“Acknowledging the need to assist States in the region, upon request, in the development of comprehensive and integrated regional and national strategies, legal frameworks, and institutions to counter terrorism, transnational organised crime, migrant smuggling, and human trafficking, including mechanisms to implement them within the framework of States’ obligations under applicable international law,
“Stressing that addressing both migrant smuggling and human trafficking, including dismantling smuggling and trafficking networks in the region and prosecuting migrant smugglers, and human traffickers requires a coordinated, multidimensional approach with States of origin, of transit, and of destination, and further acknowledging the need to develop effective strategies to deter migrant smuggling and human trafficking in States of origin and transit,
“Emphasizing that migrants should be treated with humanity and dignity and that their rights should be fully respected, and urging all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable,
“Bearing in mind the obligations of States under applicable international law to exercise due diligence to prevent and combat migrant smuggling and human trafficking, to investigate and punish
perpetrators, to identify and provide effective assistance to victims of trafficking and migrants and to cooperate to the fullest extent possible to prevent and suppress migrant smuggling and human trafficking,
“Affirming the necessity to put an end to the recent proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean Sea off the coast of Libya, and, for these specific purposes, acting under Chapter VII of the Charter of the United Nations,
“1. Condemns all acts of migrant smuggling and human trafficking into, through and from the Libyan territory and off the coast of Libya, which undermine further the process of stabilisation of Libya and endanger the lives of thousands of people;
“2. Calls on Member States acting nationally or through regional organisations, including the EU, to assist Libya, upon request, in building needed capacity including to secure its borders and to prevent, investigate and prosecute acts of smuggling of migrants and human trafficking through its territory and in its territorial sea; in order to prevent the further proliferation of, and endangerment of lives by, the smuggling of migrants and human trafficking into, through and from the territory of Libya and off its coast;
“3. Urges Member States and regional organisations, in the spirit of international solidarity and shared responsibility, to cooperate with the Libyan Government, and with each other, including by sharing information about acts of migrant smuggling and human trafficking in Libya’s territorial sea and on the high seas off the coast of Libya, and rendering assistance to migrants and victims of human trafficking recovered at sea, in accordance with international law;
“4. Urges States and regional organisations whose naval vessels and aircraft operate on the high seas and airspace off the coast of Libya, to be vigilant for acts of migrant smuggling and human trafficking, and in this context, encourages States and regional organisations to increase and coordinate their efforts to deter acts of migrant smuggling and human trafficking, in cooperation with Libya;
“5. Calls upon Member States acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking to inspect, as permitted under international law, on the high seas off the coast of Libya, any unflagged vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies;
“6. Further calls upon such Member States to inspect, with the consent of the flag State, on the high seas off the coast of Libya, vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya;
“7. Decides, with a view to saving the threatened lives of migrants or of victims of human trafficking on board such vessels as mentioned above, to authorise, in these exceptional and specific circumstances, for a period of one year from the date of the adoption of this resolution, Member States, acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking, to inspect on the high seas off the coast of Libya vessels that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking from Libya, provided that such Member States and regional organisations make good faith efforts to obtain the consent of the vessel’s flag State prior to using the authority outlined in this paragraph;
“8. Decides to authorise for a period of one year from the date of the adoption of this resolution, Member States acting nationally or through regional organisations to seize vessels inspected under the authority of paragraph 7 that are confirmed as being used for migrant smuggling or human trafficking from Libya, and underscores that further action with regard to such vessels inspected under the authority of paragraph 7, including disposal, will be taken in accordance with applicable international law with due consideration of the interests of any third parties who have acted in good faith;
“9. Calls upon all flag States involved to cooperate with respect to efforts under paragraphs 7 and 8, and decides that Member States acting nationally or through regional organisations under the authority of those paragraphs shall keep flag States informed of actions taken with respect to their vessels, and calls upon flag States that receive such requests to review and respond to them in a rapid and timely manner;
“10. Decides to authorise Member States acting nationally or through regional organisations to use all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers in carrying out activities under paragraphs 7 and 8 and in full compliance with international human rights law, as applicable, underscores that the authorizations in paragraph 7 and 8 do not apply with respect to vessels entitled to sovereign immunity under international law, and calls upon Member States and regional organisations carrying out activities under paragraphs 7, 8 and this paragraph, to provide for the safety of persons on board as an utmost priority and to avoid causing harm to the marine environment or to the safety of navigation;
“11. Affirms that the authorisations provided in paragraphs 7 and 8 apply only with respect to the situation of migrant smuggling and human trafficking on the high seas off the coast of Libya and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under UNCLOS, including the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to any other situation, and further affirms that the authorisation provided in paragraph 10 applies only in confronting migrant smugglers and human traffickers on the high seas off the coast of Libya;
“12. Underscores that this resolution is intended to disrupt the organised criminal enterprises engaged in migrant smuggling and human trafficking and prevent loss of life and is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law;
“13. Emphasises that all migrants, including asylum-seekers, should be treated with humanity and dignity and that their rights should be fully respected, and urges all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable;
“14. Urges Member States and regional organisations acting under the authority of this resolution to have due regard for the livelihoods of those engaged in fishing or other legitimate activities;
“15. Calls upon all States, with relevant jurisdiction under international law and national legislation, to investigate and prosecute persons responsible for acts of migrant smuggling and human trafficking at sea, consistent with States’ obligations under international law, including international human rights law and international refugee law, as applicable;
“16. Calls for Member States to consider ratifying or acceding to, and for States Parties to effectively implement the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, and as well as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;
“17. Requests States utilising the authority of this resolution to inform the Security Council within three months of the date of adoption of this resolution and every three months thereafter on the progress of actions undertaken in exercise of the authority provided in paragraphs 7 to 10 above;
“18. Requests the Secretary-General to report to the Security Council eleven months after the adoption of this resolution on its implementation, in particular with regards to the implementation of paragraphs 7 to 10 above;
“19. Expresses its intention to review the situation and consider, as appropriate, renewing the authority provided in this resolution for additional periods;
“20. Decides to remain seized of the matter.”
For information media. Not an official record.
UN Security Council to Vote Today, 8 October, on Resolution Authorising EU to Inspect and Seize Vessels on High Seas Suspected of Engaging in Smuggling or Trafficking of Persons
From What’s in Blue: The Security Council “is expected to vote [on 8 Oct. 2015] on a resolution aimed at disrupting human trafficking and the smuggling of migrants on the high seas off the coast of Libya. …
The draft resolution authorises member states, acting nationally or through regional organisations, to inspect vessels on the high seas off the coast of Libya that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking. Furthermore, the draft authorises member states to seize vessels if there is confirmation that they are being used for migrant smuggling or human trafficking from Libya. These authorisations are for a period of one year from the date of the adoption, and the draft stresses how these are given in exceptional and specific circumstances. …
It seems that the two most divisive issues during negotiations related to references to Chapter VII and the use of force. Several Council members, including Chad, Russia and Venezuela, raised concerns over the implications of having a Chapter VII resolution with a broad mandate. Following bilateral negotiations, the draft to be voted on is under Chapter VII but states that this is specifically to put an end to the recent ‘proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean sea off the coast of Libya’. …
In relation to the use of force, one of the difficulties was defining the instances in which member states are authorised to use force. The initial draft circulated by the UK included an authorisation to use ‘all necessary measures’ in confronting migrant smugglers or human traffickers. Some Council members wanted further guarantees that this was not a blanket mandate to use force. As a result of the members’ concerns compromise language was added to authorise member states to use ‘all measures commensurate to the specific circumstances’ in confronting them. …
While Council negotiations were put on hold during the high-level debate of the UN General Assembly, amendments were made to the draft in order to secure the consent of the Libyan permanent mission to the UN. …
Some Council members stressed the need to respect international refugee law, as well as the protection of the rights of migrants and asylum seekers. The draft underscores that it is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.
The resolution is expected to provide legal backing for the EU NAVFOR MED’s operation in the high seas (which was renamed Operation Sophia on 28 September). … Council negotiations over a draft resolution authorising such an operation earlier this year (April-May) were put on hold following difficulties getting consent from Libyan authorities to operate in the territorial waters of Libya and its shore. Following the humanitarian crisis in the Mediterranean this summer, EU Council members decided to narrow the scope of the resolution to vessels operating on the high seas off the coast of Libya. A subsequent phase of the deployment of the operation in the territorial waters and on the shore of Libya is likely to be contingent upon the formation of a government of national accord in Libya.”
Full text of What’s in Blue article here.
Updated / Conflicting Reports Re: Alleged Leader of Major Libyan People Smuggling Operation Killed in Tripoli: Libyan GNC Government Official (Tripoli) Accuses Italy of Responsibility for Killing
Updated: there are conflicting reports regarding the incident; see report from Migrant Report that Maskhout is alive.
The Guardian and other media report that Salah al-Maskhout, the alleged leader of a major human smuggling operation, and eight other men, were shot dead in a shootout that occurred on Friday in Zuwara. According to the Guardian, “[t]he skill with which the hit was carried out – with the killers reportedly firing handguns against the Libyans’ Kalashnikovs – has raised speculation that Maskhout may have been targeted by foreign agents…. The president of Libya’s [GNC] congress [based in Tripoli], Nuri Abu Sahmain, issued a statement following Maskhout’s death in which he blamed Italian special forces for the attack.” The Libya Herald reported that “[t]here have been suggestions that the attackers, who have not been identified, had initially aimed to seize Maskhout. However, the gunmen, none of whom were killed in the shootout, seem to have been professionals.” According to the Guardian, Italian and NATO officials have denied any involvement. Additional details here via RAI News.
New York Times: “A European bid to obtain Security Council approval for a military operation against boats suspected of human smuggling on the Mediterranean Sea is running into opposition from Russia, which wants to ensure that it cannot be used to justify a broader military intervention, diplomats here said. … [Russian UN ambassador Vitaly Churkin said that any resolution needs to be focused.] Mr. Churkin said that he wanted to ensure such a resolution did not set a precedent, and that he would not consent to the entire resolution’s being under Chapter VII, which authorizes potential military action….”
Full article here.
Russian Foreign Minister Lavrov: Russia ready to support Security Council Resolution approving coercive measures by EU only if measures strictly regulated and leave no space for equivocal interpretation
During an interview on Russia’s Channel One “Sunday Time” programme, on 13 September, Russian Foreign Minister Sergey Lavrov said “that Russia stands ready to approve coercive measures only if they are strictly regulated and set out in every detail in the resolution, leaving no space for any equivocal interpretation.” Lavrov was critical of how Western countries had in the past interpreted UN Security Council resolutions and said that the US and European states had in the past engaged in “illegitimate actions in violation of the UN Security Council mandate [which] turned Libya into a ‘blackhole’ now used by terrorists of all kinds.” Lavrov also called for more information regarding what the EU planned to do with refugees found on board intercepted vessels and what would happen to suspected criminals encountered at sea.
Excerpt from the Channel One programme (English translation from the Russian Ministry of Foreign Affairs):
“[***]EU countries have already asked the UN Security Council to help them draft a resolution enabling the navy of EU states to intercept illegal vessels in the Mediterranean carrying migrants who are transferred to Europe illegally. As for coercive measures, many in Europe are talking about not just arresting vessels in the open [high] sea, but also want to operate in territorial waters and onshore (in Libya, for instance), using force if it turns out that a vessel is seized illegally and is not registered. Some even want a Security Council mandate to ‘get rid’ of these vessels, as they say. Do they want to sink these vessels? This issue raises a lot of questions. As we have said time and again, knowing how our Western partners sometimes interpret UN Security Council resolutions, that Russia stands ready to approve coercive measures only if they are strictly regulated and set out in every detail in the resolution, leaving no space for any equivocal interpretation. First, the resolution could concern arresting suspicious vessels in the open [high] sea. When a vessel is flying the flag of a country, its arrest should be coordinated with the country in question. If a vessel bears no identification marks, coordination is not required and it should be stopped and inspected to establish who owns it and what is on board. Second, on top of strictly regulating these actions, it has to be understood what will happen with refugees if they are on board the vessel. The EU has yet to answer these questions. [The EU] also does not have an idea of what to do with the criminals behind this business who are captured on board a vessel. This does not just concern those executing these activities, but also those who engineer the process in some other country. A comprehensive approach is needed, and hasty solutions should be avoided. Of course, in all of those debates, we want to make our partners learn the lesson of their earlier deeds. Everyone should understand from where these migrant waves are coming and why.
… It is not uncommon that attempts to settle political crises are fuelled by momentary political gain without thinking about the implications of an action or initiative on the situation in general. Libya, where the decision was taken to topple a dictator, provides a good example. This has overshadowed all other thoughts and assessments. I spoke with our US and European colleagues who took part in this effort, showing that their thoughtless and illegitimate actions in violation of the UN Security Council mandate turned Libya into a ‘blackhole’ now used by terrorists of all kinds. The country has two parliaments and two governments with their own military. Apart from these structures, there are 35 armed groups that obey neither Tobruk, nor Tripoli. Illegal arms are flowing from Libya to many other countries. According to the UN, these weapons have travelled a long way and are used in a dozen African countries. Libya also serves as the primary transit hub in terms of human trafficking.
The response by my colleagues was telling. They acknowledge the facts and that they committed mistakes. They had the same arguments when Iraq was on the brink of dissolution. It was a mistake for the United States, but they proposed not to delve too much into the past. I strongly believe that unless we learn the lessons of history and do our homework, we will constantly face new crises, resulting in destructive, utterly negative and dangerous consequences, such as the current refugee flows. These issues will be subject to a detailed, substantive discussion in the UN Security Council. [***]”
“[***] Страны Евросоюза уже обратились в Совет Безопасности ООН с просьбой помочь им разработать резолюцию, которая будет санкционировать действия военно-морских сил ЕС в Средиземном море по перехвату нелегальных конвоев с мигрантами, которых контрабандным путем пытаются переправить в Европу. Что касается каких-то принудительных действий, многие в Европе говорят не только об аресте судов в нейтральных водах, но и о действиях в территориальных водах и на сухопутной территории (той же самой Ливии) с применением силы, если будет выявлено, что судно незаконно захвачено или никем не зарегистрировано. Некоторые даже выступают за то, чтобы получить от Совета Безопасности право, как они формулируют, от этих судов «избавляться». Топить что ли хотят? В этой связи возникает множество вопросов. Мы уже не раз говорили, что отныне и впредь, наученные тем, как наши западные партнеры, порой, умеют интерпретировать резолюции СБ ООН, мы будем готовы санкционировать принудительные меры только если они будут максимально конкретно и очень строго регламентированы в самой резолюции, не допуская какого-либо двойного толкования. Во-первых, речь могла бы идти об аресте подозрительных судов в открытом море. Если судно идет под флагом какого-то государства, то остановка судна должна быть с ним согласована. Если судно никак не идентифицировано, тогда такого согласия не требуется, и его нужно остановить и проверить, кому оно принадлежит и что везет. Во-вторых, помимо строгой регламентации этих действий, нужно понять, что будет с беженцами, если они будут обнаружены на этом судне. Пока европейская сторона не может дать нам ответы на эти вопросы. Она также не может ответить, что будет с организовавшими этот бизнес преступниками, которые будут захвачены на этих кораблях. Речь идет не только об исполнителях, но и о тех, кто «кукловодит» этим процессом из какой-то другой страны. Здесь нужен комплексный подход и не нужна спешка. Безусловно, во всей этой дискуссии мы хотим, чтобы наши партнеры извлекали уроки из своей прошлой деятельности. Все должны понимать, откуда и почему берутся все эти волны беженцев.
Мы сегодня говорили о террористической угрозе и неурегулированных конфликтах. Очень часто предпринимаются попытки урегулировать тот или иной кризис ради достижения какой-то сиюминутной политической цели, абсолютно не уделяя внимание, какое влияние та или иная акция будет оказывать на общую ситуацию. Хорошим примером этого служит Ливия, где решили свергнуть диктатора. Это затмило все остальные мысли и оценки. Я разговаривал с нашими американскими и европейскими коллегами из тех, кто принимал непосредственное участие в этой акции, и показывал, что именно после их абсолютно бездумных и противоправных действий, совершенных в нарушение мандата Совета Безопасности ООН, Ливия превратилась в «черную дыру», которую сейчас используют террористы всех мастей. Там есть два парламента и два правительства, у каждого из этих политических органов есть свои вооруженные формирования. Но, кроме этих структур есть еще 35 вооруженных отрядов, которые не подчиняются ни Тобруку, ни Триполи. Из Ливии идет огромный поток нелегального оружия в самые разные страны. По оценкам ООН, это оружие давным-давно появилось и применяется более чем в десяти странах Африки. Через Ливию проходит основной поток контрабандной торговли людьми.
Очень показательна реакция моих коллег, которые признают, что это было, и они тогда ошиблись. То же самое нам говорили после того, как Ирак оказался на грани раскола – американцы ошиблись, но предложили не копаться в истории. А я считаю, что если мы не будем извлекать уроки и делать работу над ошибками, то будем постоянно натыкаться на новые кризисы, которые и дальше будут приносить разрушительные, очень негативные и опасные последствия, такие как нынешние потоки беженцев. Мы планируем предметно и подробно обсуждать эти вопросы в СБ ООН. [***]”
UN Security Council is Again Discussing Resolution to Authorise EU Use of Force Against Migrant Vessels
What’s in Blue and the New York Times report that “it appears that EU [Security] Council members are currently discussing with non-EU P5 members a draft resolution authorising EU NAVFOR Med to intercept boats used by human trafficking networks on the high seas of the Mediterranean.”
NY Times: The resolution “would authorize military action on a specific route on the high seas from the coast of Libya north to Italy. The proposal is a significant step down from what the European leaders originally wanted: the Council’s blessing to conduct military operations along the Libyan coast, on land and water, to seize and disrupt the smugglers. … According to one Security Council diplomat, the resolution would allow for boats to be seized and for the people on board to be taken to Italy, where the authorities would determine who among them might be eligible for asylum because they were fleeing war or persecution….”
Der Spiegel: A Continent Adrift: Juncker Proposes Fixes to EU’s Broken Asylum Policies. Graphic: What Juncker’s quota system would look like.
Statewatch is publishing a dedicated web page, Statewatch Observatory: EU MED crisis – a humanitarian emergency: “This Observatory covers the arrival of migrants and the reactions and failures within the EU (both governmental and within communities) News and Official documents and commentaries (coming soon) Edited by Tony Bunyan.”
+EU: HUMANITARIAN CRISIS: Council of the European Union encouraging MS to use more entry bans (dated 8 September 2015): Draft Council Conclusions on alerts in the SIS for the purpose of refusing entry and stay pursuant to Article 24 of the SIS II Regulation upon a return decision (doc no: 11648-15, pdf). The document notes:
“At its meeting on 25 and 26 June 2015, the European Council concluded that “Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System” [emphasis added]
The Council wants a “new legislative package” but in “short-term” want to use a “soft law” (non-binding, but enabling) set of Council “Conclusions” and:
“The Permanent Representatives Committee is invited to confirm agreement on the draft Council Conclusions as set out in the Annex and to submit them to the Council (Justice and Home Affairs) on 14 September 2015 for adoption as an A point.”
Statewatch notes that: “A Points” are nodded through without debate.
+EU: Council of the European Union: Migration: EU action and state of play (dated 9 September 2015, LIMITE doc no: 11782-15, pdf) including:
(8) those “claiming for asylum have to be immediately channelled into an asylum procedure relying on the EASO support teams. Registration and fingerprinting of migrants have to be closely linked to effective return policies for those who do not need protection. Frontex will help Member States by coordinating the return of irregular migrants.
(9) The deficiencies of the current system of fingerprinting, whereby incoming migrants claiming asylum cannot be forced to give their fingerprints, should be addressed by fully using or eventually amending relevant asylum legislation. In the meantime, the guidelines to facilitate the systematic taking of fingerprints as agreed by Member States should be followed thoroughly, including, if necessary, through the application of Article 15 of the Return Directive on detention.” and notes that Stage 2 of EUNAVFOR is ready and:
“the next phase of the operation, focusing on conducting boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human
smuggling or trafficking”
Statewatch comments: It is not clear that the Council is aware, despite the Stage 1 intelligence-gathering, that only refugees are in the boats crossing into Greece from Turkey and that the motorised rubber-dinghies are destroyed after everyone is safely ashore.