On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.
In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.
These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.
Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had.
Has Operation Sophia achieved its goal to disrupt the business model of migrant smugglers and human traffickers (Article 1 of Council Decision (CFSP) 2015/778)?
First, let’s look at the flows of migrants, which might be an indicator. Operation Sophia’s area of operation is the Southern Central Mediterranean. The area south of Sicily off the coast of Libya in the Central and Southern Mediterranean remains the most intensively used pathway into Europe (UNHCR, June 2017, p. 9). Libya is the main country of embarkation for people going to Italy: according to the UNHCR ‘96% of arrivals crossed from Libya’ (UNHCR, July 2017) and, in the first six months of 2017, irregular migration from Libya increased (91,584 persons) compared to the first six months of 2016 (84,444 persons) (UNHCR, July 2017). Flows of migrants have not been stopped.
Second, let’s assume that the UN Security Council and the EU legislator by using the wording ‘disruption’, also mean ‘deterrence’ (after all, one of the main aims of criminal law policy). Have smugglers and traffickers been deterred? This raises the question of how to achieve deterrence
Destruction of Boats
Absent any provision on the exercise of jurisdiction over individuals (see below), it seems that the destruction of boats has been considered the main tool for suppressing and deterring these crimes (para 8 S/RES/2240 (2015) and Article 1(1) and 2(2)(c) of Council Decision (CFSP) 2015/778).
In order to achieve its goal of disrupting the business model of migrant smugglers and human traffickers, Operation Sophia military vessels were endowed with the powers to board, search, seize and divert (Articles 2(2)(b)(i) and (ii) of Council Decision (CFSP) 2015/778) vessels suspected of being used for migrant smuggling and human trafficking while also being allowed to dispose of them and render them inoperable. As of June 2017, more than 400 boats have been ‘removed from criminal organisations’ availability’, i.e. destroyed.
Here, a question arises as to whether the destruction of boats is an appropriate criminal law measure in compliance with international human rights law? Destruction of boats during or after the interception may prove problematic as demonstrated by concerns already raised in relation to the consistency of counter-piracy operations with the right to property (see Bodini). First, in the absence of a legal basis, it may entail violations of the right to property (Article 1 of Protocol 1 to the ECHR).
While the UNCLOS provides for a legal basis for the seizure of pirate ships (Article 105 UNCLOS), it does not do so in relation to ships suspected of being used for migrant smuggling or human trafficking. Even if all boats used by smugglers and traffickers happened to be ‘ship[s] without nationality’, UNCLOS only envisages the right to visit (i.e. stop, board, and search) such ships (Article 110 (1)(d) UNCLOS); it does not accord states the power to seize them. Moreover, the destruction of the corpus delicti in the absence of criminal conviction goes against the cardinal criminal law principle of presumption of innocence.
Gaps in the international law of the sea as to the right to seize and dispose of smugglers’ vessels are filled by S/RES/2240 (2015), as lastly renewed by S/RES/2380 (2017), which accords states the right to inspect, seize and dispose of vessels suspected of being used for migrant smuggling and human trafficking on the high seas off the coast of Libya (paras. 7 and 8).
Strangely enough, Council Decision (CFSP) 2015/778 does not reproduce such authorization: while on the high seas vessels contributing to Operation Sophia have the power to board, search, seize and divert (Article 2(2)(b)), the power of disposal (Article 2(2)(c)) will be allowed only when Operation Sophia will move into the territorial/internal waters (Phase 2B) and territory of Libya (Phase 3). Currently, Operation Sophia is in Phase 2A: its vessels only operate on the high seas off the coast of Libya, and transition to Phase 2B and 3 seems unlikely (see below). One could argue that UN Security Council resolutions could be a sufficient legal basis however, by virtue of the lex specialis principle, norms of Council Decision (CFSP) 2015/778 should be considered the applicable legal framework.
Article 8(7) Protocol against Migrant Smuggling allows boarding and searching suspected flagless vessels and the taking of ‘all appropriate measures in accordance with domestic and international law’. This provision, while far from clear, as will be seen, may justify law enforcement powers, including disposal.
Finally, one of the unexpected consequences of the destruction of boats is that smugglers and traffickers now send people out to sea in unseaworthy rubber dinghy instead of using wooden boats. This has led to an increase in deaths.
Enforcement and Adjudicative Jurisdiction over Individuals
Coming back to the question as to how to achieve deterrence, one cannot fail to think that criminal jurisdiction should be the main instrument.
As opposed to UN Security Council resolutions on Somali piracy and the consequent CSFP instrument that established the EU military operation meant to deal with this threat, no mention is made in either S/RES/2240 (2015) and following resolutions, or Council Decision (CFSP) 2015/778, of enforcement and adjudicative powers against individuals, i.e. no mention is made of the powers to apprehend, arrest, detain suspected smugglers and traffickers and transfer them for prosecutions.
UN Security Council resolutions authorize ‘all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers’ (para. 10 S/RES/2240 (2015)). However, this authorization does not seem to include the exercise of criminal jurisdiction insofar as states are authorized to use such measures in the context of ‘carrying out activities under paragraphs 7 and 8’, i.e. inspections, seizures and all actions, including disposals, taken against suspected boats. It does not provide any legal basis for enforcement and adjudicative jurisdiction over suspected individuals. Moreover, the question of criminal jurisdiction remains regulated elsewhere in the resolutions and essentially is up to states to exercise it on the basis of international and national law (para. 15 S/RES/2240 (2015)).
As far as international law is concerned, migrant smuggling and human trafficking are not universally justiciable crimes. The UNCLOS does not provide any jurisdictional ground with specific regard to migrant smuggling. In case of foreign flagged vessels suspected of being used for migrant smuggling, there is no provision in the UNCLOS according either enforcement or adjudicative jurisdiction. Article 8(2) of the Protocol against Migrant Smuggling requires states to obtain the flag state’s consent in order to be allowed to board, search and ‘to take appropriate measures’, which may include apprehension, detention and transfer of suspects for prosecution.
As mentioned, states can make use of the enforcement powers granted by Article 110 (1)(d) UNCLOS insofar as ships without nationality engage in this crime. Some authoritative voices argue that there exist universal enforcement powers over stateless ships (see Gallagher and David, The International Law of Migrant Smuggling, 422 and 423). In line with the UNCLOS, as far as ships without nationality are concerned, Article 8(7) of the Protocol against Migrant Smuggling accords states a discretionary power to board and search them. Once suspicion is confirmed, then a vague obligation ‘to take appropriate measures in accordance with relevant domestic and international law’ is triggered. Domestic law, EU law (see Ventrella p. 10) and transnational criminal law play a significant role in shedding some light on this provision by determining which measures could be taken by Operation Sophia vessels and in affording jurisdictional grounds with respect to ships without nationality suspected of being engaged in migrant smuggling. This analysis however is beyond the bounds of this post. It suffices here to say that the legal basis for enforcement powers over suspected smugglers is far from being foreseeable, certain and accessible, characteristics which are necessary for deprivation of liberty to be lawful (see Medvedyev and Others v. France, ECtHR, 29 March 2010, App. No. 3394/03, para. 80).
Without a clear legal basis for coercive powers over individuals, Operation Sophia vessels operate in murky waters, as far as jurisdiction over individuals is concerned. Now one can understand the reasons why the successes of the operation in relation to crime repression are phrased as an unclear, indirect contribution to the arrest of smugglers and traffickers (see European Council’s press release of July 2017 ‘the operation has contributed to the arrest and transfer to the Italian authorities of 110 suspected smugglers and traffickers’).
As mentioned, currently Operation Sophia is in Phase 2A: its vessels only operate on the high seas off the Libyan coast. Only in the subsequent phases will military vessels of Operation Sophia be allowed to enter Libyan internal and territorial waters (Phase 2B) and territory (Phase 3). The transition to these phases would seem the most appropriate tool in terms of criminal law policy. After all, traffickers and smugglers are mainly acting on the territory or in the territorial sea. Should a legal basis for criminal jurisdiction be provided, how could investigations in relation to land-based criminal networks be collected from the high seas (see House of Lords, European Union Committee, 2nd Report of Session 2017–19, p. 24)?
However, moving into the next operational phases seems uncertain. In international law, as demonstrated by the counter-piracy regime, for police functions to be carried out in another state territory or in its territorial/internal waters, in a manner consistent with the principle of territorial integrity, UN Security Council authorization under Chapter VII or the consent of the coastal state is needed. For countering piracy off the Somali coast we had both (see S/RES/1816 (2008) and following resolutions). In relation to migrant smuggling and human trafficking in, through and from Libya, neither of the two legal bases are there yet. UN Security Council authorization under Chapter VII has not been granted and consent expressed from a government in Libya seems impossible to be acquired in view of the current political and security situation.
It is probably in light of the abundant shortcomings inherent in the multilayered legal regime governing Operation Sophia and in light of the unintended human rights consequences that these brought about, that Operation Sophia has turned into a de facto search and rescue operation. Despite not being within Operation Sophia’s explicit tasks (Council Decision (CFSP) 2015/778), the duty to save life at sea (enshrined, among other instruments, in Article 98 UNCLOS) is applicable to its military vessels (both military and to private vessels are bound, Papanicolopulu, 495 and 496). As of July 2017 Operation’s Sophia rescued over 40.000 individuals.
Notwithstanding these face-saving results, we cannot avoid demanding more legal certainty in relation to the objectives and powers of military missions deployed for law enforcement purposes and therefore exercising their enforcement powers over individuals, be they suspects or migrants. This is how human rights law works.