Tag Archives: Rescue at Sea

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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Satellite Imagery Used by Frontex to Detect and Rescue Migrant Boats

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 Eurosur Fusion Services imageryboard 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.)

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20 May – Informal Meeting between Members of UN Security Council and EU Political and Security Committee

From “What’s In Blue”: On 20 May, “members of the Security Council will hold an informal meeting with members of the EU Political and Security Committee (PSC). Since this is an informal meeting, it will not be held in the Security Council chamber and is not on the official programme of work of the Council. The meeting was requested by the EU and will be hosted by Lithuania, the current president of the Council, at the premises of the EU Delegation to the UN. The mutually agreed agenda for the meeting includes EU-UN peacekeeping cooperation in Africa, Libya and Ukraine.”

Among the topics that will be discussed is the proposed EU military operation in Libya:

“Libya/Migrant Smuggling – On this … issue, Council members are also expected to discuss with the members of the EU PSC the details of the EU military operation (EU NAVFOR Med) the EU decided to establish on 18 May to break the business model of the smuggling of migrants. Briefing the Council on 11 May, Mogherini presented proposals for the EU strategy to tackle the flow of migrants towards Europe. As part of this strategy, Mogherini discussed the plans for an EU military operation that would be authorised under Chapter VII to inspect, seize and dispose of vessels when there are grounds to believe that they are participating in the smuggling of migrants. Negotiations are ongoing among EU members of the Council (France, Lithuania, Spain and the UK) and China, Russia and the US on a draft resolution to authorise the EU operation. Council members are likely to be interested in the details that the EU PSC ambassadors can provide on this proposed operation, and what they are seeking from the Council, including on the appropriateness of this response to tackle this phenomenon, the protections foreseen in accordance with international refugee law, the issues associated with consent from the Libyan authorities, the geographical scope of the resolution, and consent by the flag states regarding interdictions.”

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Via Statewatch: Non-public Crisis Management Concept document – EU plan for CSDP operation to disrupt migrant smugglers in Libya

The non-public Crisis Management Concept document outlining the EU plan for a CSDP operation to disrupt migrant smugglers in Libya has been made available via Statewatch. See p. 6, Section IV, for the military operation plans. (Also available here.)

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German Naval Ships Participating in Mediterranean Rescue Operation Destroy Empty Migrant Boats

Two German naval ships, the Hessen and the Berlin, have been participating in Mediterranean rescue operations since 5 May and have reportedly destroyed five migrant boats (four inflatable and one wooden) after rescue operations were completed and migrants removed from the boats. The boats are destroyed because they might pose a navigational hazard to other vessels and might also be mistaken for a boat in distress. (Wir müssen die Boote zerstören, weil sie auf dem offenen Meer ein Schifffahrtshindernis für andere Boote darstellen. Zum anderen könnte es sein, dass wir ein leeres Boot aus der Luft irrtümlich als ein in Seenot befindliches Boot wahrnehmen und hinfahren, um es zu retten. Das kann wertvolle Zeit kosten, die uns bei der Rettung von besetzten Booten dann verloren geht.)

As I have noted before, there are situations such as these where the destruction of a migrant boat may be perfectly legal and appropriate. Assuming reasonable measures can be taken to avoid or minimize environmental damage, the destruction in international waters of an unflagged and unseaworthy vessel would seem to be legal.

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IOM see inherent risk that EU military action in Libya will endanger migrant lives.

In a statement IOM generally welcomed the European Commission’s proposals on migration. “IOM … supports the renewed focus on disrupting criminal smuggling networks, but has serious concerns about proposals to ‘systematically identify, capture and destroy vessels used by smugglers,’ through EU Common Security and Defense (CSDP) operations. While recognizing the need for a powerful demonstration of the EU’s determination to act, IOM sees inherent risk that military actions, however laudable, could further endanger migrant lives.”

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UN’s Sutherland calls on EU “not to put any refugees or migrants in the line of fire.”

Peter Sutherland, Special Representative of the UN Secretary-General for International Migration and Development in a statement welcomed the European Commission’s “European Agenda on Migration” but “urge[d] [EU] Member States not to put any refugees or migrants in the line of fire, and to design any [anti-smuggling] operation in complete conformity with international law.” Sutherland urged the EU to take steps to ensure that Frontex Operations Triton and Poseidon “are at least equal in effect to Mare Nostrum” and “to make search-and-rescue the top priority…”

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