Tag Archives: Joint Operation Hera

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.

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Filed under Analysis, European Court of Human Rights, European Union, Frontex, Italy, Libya, Mediterranean, Refugees, Reports, UN Security Council, UNHCR

Moreno-Lax, Int J Refugee Law, “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea”

The latest edition of the International Journal of Refugee Law, contains an article by Violeta Moreno-Lax (PhD Candidate at Université catholique de Louvain; Visiting Fellow 2010-11 at Refugee Studies Centre, University of Oxford) entitled “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea.”

Abstract: “Although both international and EU law impose a number of obligations on the EU Member States with regard to persons in distress at sea, their effective implementation is limited by the manner in which they are being interpreted. The fact that the persons concerned are migrants, who may seek asylum upon rescue, has given rise to frequent disputes and to episodes of non-compliance. Frontex missions and the Italian 2009 push-back campaign illustrate the issue. With the objective of clarifying the scope of common obligations and to establish minimum operational arrangements for joint maritime operations, the EU has adopted a set of common guidelines for the surveillance of the external maritime borders. On the basis of the principle of systemic interpretation, this article intends to contribute to the clarification of the main obligations in international and European law binding upon the EU Member States when they operate at sea.”

This is a revised and updated version of the paper presented at the 12th IASFM Conference held in Nicosia, 28 June-2 July 2009.  [The article was written and sent for typesetting before the various uprisings in North Africa – IJRL Editor, 4 March 2011]

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Frontex 3rd Quarter Report

On 16 January the Frontex Risk Analysis Unit released its Report for the Third Quarter of 2010 (July-Sept.).  The report contains data, charts, and graphs detailing detections of migrants, asylum seekers, false document use, detections of facilitators, and other information.  The deployment of Frontex’s RABIT force to the Greek-Turkey border did not begin until 2 November 2010, so the effects of the RABIT deployment do not appear in the Third Quarter.

The Report notes that the “unprecedented peak in illegal border-crossings at the Greek land border with Turkey is the result of a shift from the sea to the land border” coupled with a “large increase in the absolute number of migrants” using Turkey as an EU entry point.  The Report states that there has been an eight-fold increase in the number Maghreb nationals detected at the Greek land border which “is thought to be the result of a displacement effect from the West Africa and Western Mediterranean routes.”

The Report also notes an increase in the number of detections on the Central and Western Mediterranean sea routes compared to Q2 which may be attributable to seasonal variations or “may be indicative of reorganized modi operandi in these areas in response to Frontex Joint Operations, more effective border controls and bilateral agreements implemented in 2008.”  See Figure 3 below.

Excerpts from the Report:

“Detections of illegal border-crossing”

“…  Fig. 2 [see below] shows quarterly detections at the land and sea borders of the EU since the beginning of 2008. The 30% increase in the number of detections between the previous and present quarters is comprised of a 60% increase at the sea borders (although from a lower base) and a 23% increase at the land borders. This means that the shift from sea to land borders has not continued to same extent as in the previous quarters.  Nevertheless in Q3 2010, there were some 29 000 detections of illegal border-crossing at the external land border of the EU, which constitutes 85% of all the detections at the EU level, and the highest number of detections at the land border since data collection began in early 2008….”

“Eastern Mediterranean route”

The Report observes that there has been a shift in illegal crossings from the Greece-Turkey maritime border to the Greece-Turkey land border and notes an increase in the number of nationals from Maghreb countries apprehended at the Greece-Turkey land border.  “This route [being taken by Maghreb nationals] is very indirect, but is thought to be the result of a displacement effect from the West Africa and Western Mediterranean routes….”

See Figure 4 below which shows that detections of illegal border crossers at the land border of Greece have exceeded detections at the sea border since Q1 of 2010.

“Central Mediterranean route”

“There were 2 157 detections of illegal border-crossing during Q3 2010. This is more than a three-fold increase compared to the previous quarter and a third higher than the same period last year. However despite this apparently large increase, detections still remain massively reduced compared to the peak of around 16 000 during the same period in 2008 (Fig. 3)….”

“The JO Hermes 2010 which was operational between June and October 2010, focused on illegal migratory flows departing from Algeria to the southern borders of the EU, specifically to Sardinia. In 2010, there were fewer detections than in previous years….”

“Departures from Libya also remained low. In June 2010, a new law was implemented to serve more severe punishments for facilitating illegal immigration. Ambassadors of the countries of origin were called into the Ministry of Foreign Affairs in Tripoli to be informed about the consequences of the new law, which suggests that this may be a serious implementation.”

“Western Mediterranean route”

“In general, irregular immigration to southern Spain has decreased massively since the beginning of 2006. However, in Q3 2010 there were 2 200 detections of illegal border crossing in the Western Mediterranean, more than twice that of the previous quarter and around a third higher than the same period in 2009. There is growth in the number of detections of a wide range of African nationalities, nine of which more than doubled in number between Q2 and Q3 2010. The most detected nationalities were Algerian, Moroccan, Cameroonian and Guinean.”

“Western Africa route”

“The cooperation and bilateral agreements between Spain and the rest of the Western African countries (Mauritania, Senegal and Mali) are developing steadily, and are one of the main reasons for the decrease in arrivals, as is the presence of patrolling assets near the African coast.”

“According to data collected during JO Hera, the numbers of arrivals in the Canary Islands and detections in West Africa are very low compared to the same time last year. The main nationality and place of departure is from Morocco, to where migrants are returned within a few days.”

Click here for the 3rd Quarter 2010 Report.

Click here for the 2nd Quarter 2010 Report.

Click here for the 1st Quarter 2010 Report.

Click here for my previous post regarding the 2nd Quarter Report.

 

 

 

 

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Details from Frontex General Report 2009 (Post 2 of 2)

Last week I posted a summary of the first part of Frontex’s 2009 General Report.  This second post summarizes the portion of the Report pertaining to Frontex’s sea operations.

The General Report 2009 provides selective information regarding the six major Joint Operations conducted at the sea borders.  With only one exception, no information or data is provided regarding the specific numbers of intercepted migrants or vessels.

Instead of numbers, the Report provides various descriptive terms which could mean almost anything.  For example, Operation Hera led to a “drastic decrease of migrants,” during Operation Nautilus there was a “remarkable decrease” in migrants, and during Operation Hermes, the numbers of migrants arriving and dying at sea “decreased dramatically.” The one exception is for Operation Indalo where the Report states that 750 irregular migrants and 10 facilitators were detected.

When desired, the Report provides details and numbers.  For example, Operation Poseidon utilized 4 open sea vessels, 6 coastal patrol vessels, 13 coastal patrol boats, six airplanes, 4 helicopters, and 152 experts who delivered 2680 man days of operational activities, but no data regarding the total number of irregular migrants intercepted at sea is provided.

Here is a summary of the information provided in the Report for each of the six major Joint Operations:

Poseidon 2009, Eastern Mediterranean (365 Days)

Poseidon was conducted along land borders as well as at sea.  Interpreters were deployed on board ships to facilitate the identification process of intercepted migrants.  Less than 10% of the interviewed migrants claimed their original nationality.  There was an overall reduction in migrant flow of 16% (land and sea) compared to 2008.  “The main operational objectives of the joint operation were achieved but there is a clear need for closer cooperation between local authorities.”

Hera 2009, Atlantic Ocean waters between North Western African countries and Canary Islands (365 Days)

Due to the permanent implementation of Joint Operation Hera and better cooperation from “involved African countries”, there was a notable reduction in migrants reaching the Canary Islands, 2280 in 2009 compared with 9200 in 2008.  Aerial and maritime surveillance conducted close to the territory of Senegal and Mauritania and local cooperation from police led to the decrease in migrants.  “Despite these clear successes, participation of more member States would greatly increase effectiveness and outcomes.”  [NF- While the Report does provide migrant arrival data for the Canary Islands, it is silent on the number of migrants intercepted at sea or within Senegal or Mauritania.]

Nautilus 2009, Central Mediterranean (172 Days)

There was a remarkable decrease in migrant arrivals in Malta.  A “significant obstacle to the effectiveness of the Joint Operation lay in the contrasting interpretations of the International Law of the Sea by Member States….”  The effectiveness of the operation compared with 2008 was not improved.

Hermes 2009, Central Mediterranean (184 Days)

“Due to the bilateral agreement between Italy and Libya, the number of people arriving from Libya, as well as the number of migrants died at sea, decreased dramatically….”  “In addition, the first examples of co-operation with Algeria should also be considered as promising.”  As with Nautilus, “differing interpretations of the International Law of the Sea led to a limited contribution by the Member States to the joint operation by maritime surface means.”  The effectiveness of the operation compared with 2008 can be considered as increased.

Minerva 2009, Western Mediterranean (39 Days)

The launch of the operation was delayed in 2009.  Its effectiveness compared with 2008 has remained the same.

Indalo 2009, Western Mediterranean (50 Days)

The lack of cooperation from Algeria is an obstacle for operational activities.  10 Facilitators and 750 irregular migrants were identified.

And as I noted in my earlier post, Frontex continued to devote the biggest single portion of its expenditures to maritime enforcement.  Almost 40% of Frontex’s total budget, over € 34 million, was spent on sea operations in 2009, constituting 55% of the operational budget.

This chart from the Report (p 23) shows the breakdown of expenditures within the 2009 Operational Budget (which was 71% of the total 2009 Frontex budget).

Click here for previous post.

Click here for the Frontex General Report 2009.

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