Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

On Monday 11 May Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, officially briefed the UN Security Council on the current crisis in Europe. The crisis relates to the sharp increase of fatalities of individuals trying to cross the Mediterranean in order to reach European shores. The International Organization for Migration (IOM) reports 1.800 deaths since the beginning of 2015, more than 800 of them during a single incident in April. Deaths in the Mediterranean are an annually recurring tragedy triggering public outcry in spring that dwindles down as less individuals attempt the journey due to the harsher conditions at sea during the colder months. However, 2015 is likely to become the deadliest year. According to Peter Sutherland, Special Representative of the UN Secretary-General for International Migration, these numbers represent a 20-fold increase over the same period last year. The surge in fatalities is largely attributed to the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy and its replacement by the smaller scale operation Triton. The latter is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and focuses on border control and surveillance rather than search and rescue (see also here).

To be sure, this demands action. An ‘exceptional and coordinated response’ is required to deal with the ‘unprecedented situation’, Ms Mogherini told the Security Council. On 23 April the European leaders came together for an emergency summit to devise a plan of action to respond to the tragedy. The action plan, presented to the Security Council on Monday, promises a strengthened European presence at sea, announces increased efforts to prevent irregular migration and declares the fight against human traffickers a priority. To crack down on human traffickers Europe pledges to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers. This course of action is not without obstacles. The vessels in question, prior to their use, are mostly situated in Libya, but surely outside Europe. Quite inconspicuous at first sight, Europe’s proposal therefore requires using military force on the territory of another state and touches upon a bedrock rule of international law: the prohibition of the use of force.

The prohibition of the use of force has been considered a central achievement of the UN. So much so that, as Tilmann Altwicker and Oliver Diggelmann (in EJIL Volume 25:2) point out, the common distinction between ‘classical’ and ‘modern’ international law ‘divides the history of international law into the periods “before” and “after” the rise of the partial ban on the use of force’ (abstract). Ever since Ms Mogherini was tasked with devising a more detailed plan to thwart human smugglers, emphasis has been put on the requirement of conformity with international law. Obtaining consent of Libya, considering the dispersed ‘hubs’ of control and related questions of political representation, is not only challenging in theory but also in practice. As reported by the BBC, Ibrahim Dabbashi, Libya’s ambassador to the UN, has already indicated he is neither pleased with how Europe bypassed him nor with the plan itself. Absent Libya’s consent to military operations on its territory, European states can either invoke their right to self-defence or ask for authorisation by the Security Council.

Since migration flows hardly qualify as an armed attack and therefore do not trigger a right to self-defence, the path chosen is to seek approval by the Security Council. The detailed content of a resolution that is currently being drafted has not been made public yet. According to the Guardian, the United Kingdom is in charge of drafting a proposal that is believed to call for ‘the use of all means to destroy the business model of the traffickers’. Since approval requires at least nine affirmative votes, the four European members of the Security Council – currently Spain and Lithuania as well as the permanent members the United Kingdom and France – need to get at least five others on board. Efforts are therefore under way to persuade the remaining three permanent members: the United States, China and Russia. Russia seems the hardest nut to crack since it reportedly is still unconvinced of the necessity of the military operation proposed.

Despite the extensive powers of the Security Council in deciding whether to authorise the use of force, it must bring forward strong reasons for doing so. In the words of Article 39 UN Charter, these are the existence of an act of aggression, a breach of or at least a threat to international peace and security. A tweet by the EU Delegation to the UN of 28 April 2015 suggests that a threat to international peace and security is believed to exist:

‘Human trafficking is threat for security & stability for all countries & EU will work with all partners @FedericaMog’.

Indeed, the Security Council has in the past (for example in Resolution 688 of 5 April 1991) defined massive transborder flows of refugees as a threat to international peace and security. However, even where such a threat exists, Article 42 only allows authorisation of force if and to the extent it is necessary to maintain or restore international peace and security. If transborder migration or human traffickers in the Mediterranean pose a threat to international peace it is because of the tremendous human suffering it involves. While it is conceivable that the threat relates to the disruptive effects in receiving states, Europe still seems to be capable to handle those (in particular with a new ‘burden-sharing’ model) and has not explicitly relied on that as the reason for intervention. Either way, only measures aimed at the root causes of the threat, humanitarian assistance or otherwise protection of the individuals at risk, can in this context be considered suitable to maintain international peace. For example, Resolution 688 (1991) authorised humanitarian relief efforts in order to protect Iraqi civilians, in particular Kurdish, from repression by their government. On that basis, international forces were deployed to Kurdish areas to create a safety zone within Iraq. In this vein, if Europe wants to counter the threat posed by migration flows or human traffickers, the measures need to be aimed at protecting migrants and refugees. This was pointed out by Mr Sutherland when briefing the Security Council on Monday. Since the Mediterranean represents, according to Sutherland, first and foremost a security crisis for the hundreds of thousands of refugees and migrants in harm’s way, an effective strategy to address the crisis, including in the context of a Security Council resolution, has to focus on the immediate need to save lives.

The important question therefore is whether stopping or shooting smugglers’ boats protects migrants and refugees. The idea originally featured in a 10 Point Action Plan on Migration adopted on 20 April during a Joint Foreign and Home Affairs Council. It suggested that the positive results obtained with operation Atalanta could inspire similar operations against smugglers in the Mediterranean. Atalanta is a counter-piracy operation by EU naval forces aimed at protecting vessels around the Somalian coast from pirates. Whereas it can be argued that stopping pirates makes the journey for their potential target vessels safer, this is not the case with respect to human smugglers. In the absence of legal means of immigration to Europe destroying smugglers’ boats in Libya may not deter individuals from trying to reach Europe but more likely push them to use alternative routes, potentially longer and even riskier. As the president of the European Commission, Jean-Claude Juncker, was quoted to have said in the European Parliament: ‘if we close the door to all, people will come in through the windows’. Even if the proposed military operation terminated the journey for those making use of smugglers’ boats, currently often including Eritrean or Syrian refugees, it not necessarily keeps them out of harm’s way. Libya is not only swept by instability and violence, but is also quite infamous with respect to its commitment to migrants’ and refugees’ rights (see the most recent report of Amnesty International on the situation of migrants and refugees in Libya). Contrary to protecting the individuals at risk, ‘trapping’ migrants and refugees in Libya probably exacerbates or prolongs their perils.

Measures of protection could for example entail safe methods for individuals to seek asylum in the EU without having to rely on the smugglers’ networks. Far from containing language reflecting such efforts, the tone of the action plan pledging to target smugglers’ boats creates the impression Europe is mobilising all means to protect itself. This resonates with the more general direction of European migration and asylum policies. If targeting smugglers’ vessels, however, does not protect migrants and refugees, it likely cannot be considered suitable, even less necessary, to counter the threat to international peace emanating from migration flows or human traffickers. To the contrary, it may perpetuate a situation that endangers international peace and security. This concern was also implied in Mr Sutherland’s briefing of the Security Council. In his view, if the response does not focus on saving lives, it represents ‘a moral failure of the first order, one that would undermine international law and security.’ Even if Europe nonetheless squares the circle of making a case for the necessity of military strikes against smugglers’ boats, it does not seem that the system of collective security under the UN Charter is designed to serve such cause.

It appears that the planning for the military operation is already well under way. The mandate, as Ms Mogherini informed the Security Council, is currently being elaborated with the EU member states in Brussels and will be discussed in the framework of the EU Foreign Affairs Council on 18 May. These discussions hopefully also include consideration of potential international responsibility. Not for a breach of the use of force, supposing the Security Council supports the cause, but for human rights violations which may result from the military action. Considering that many of the tragedies take place on overloaded fishing boats, it may be extremely difficult to distinguish, before they embark on their journey, between ordinary fishing boats and those used for smuggling individuals. Even when the target vessels are correctly identified, it needs to be ensured that no individuals are caught in the crossfire or sent back in violation of the prohibition of refoulement when intercepted. In any case, the EU’s (military) engagement in human rights sensitive areas once again shows the need for (external) accountability mechanisms for potential human rights violations. This rests quite uneasy with the recent rejection of the draft agreement on the accession of the EU to the European Convention of Human Rights by the Court of Justice of the European Union in Opinion 2/13.