The Legal and Political Feasibility of the EU’s Planned ‘War on Smuggling’ in Libya

Introduction

On 19 April 2015, after a series of deadly shipwrecks, over 800 migrants perished when their smuggling boats, boarded in the Libyan port Zuwara, capsized in the Mediterranean Sea. The response from the EU was immediate. On 20 April, at a joint meeting of EU Foreign and Interior Ministers, the EU Migration Commissioner presented a 10-point action plan, the second point of which foresaw “[a] systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean”. At the special meeting of the European Council on 23 April 2015, this was streamlined into the commitment to undertake “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. These events precipitated the adoption on 18 May of a decision of the EU Foreign Affairs Council, establishing an EU military operation called EUNAVFOR MED with the mission “[to disrupt] the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers” (Art. 1).

According to Article 2 of the decision, EUNAVFOR MED shall be implemented in three sequential phases. The first phase will be the “lightest”, aiming at the detection and monitoring of migration networks through information gathering and patrolling on the high seas. It is only in the second and third phases that the operation should achieve the aforementioned aspirations. Thus, in the second phase, it is foreseen to board, search, seize and divert suspected vessels, both on the high seas and in the territorial or internal waters of the state concerned whereas for the third phase, the decision speaks of taking all necessary measures against a suspected smuggling or trafficking vessel and related assets, “including through disposing of them or rendering them inoperable in the territory of that State” (Art. 2(b).

The decision makes the implementation of those second- and third-phase measures which need to be conducted in the territorial sea, the internal waters or the land territory of Libya conditional upon “any applicable UN Security Council Resolution or consent by the coastal State concerned” (Art. 2). This is quite logical. As the planned enforcement measures involve a threat or actual use of coercive power, the fundamental international law principles of sovereign equality, territorial sovereignty and non-interference prohibit the EU Member States from exercising enforcement jurisdiction in the territory of Libya (including territorial and internal waters) without: 1) Libya’s permission and/or 2) the authorization of the UNSC under Chapter VII of the UN Charter (on international law implications cf. Gallagher and David, The International Law of Migrant Smuggling, CUP, 2014. p. 222).

Because there are competing authorities claiming to be the government of Libya, and inspired by the previous experience with the UNSC-accepted EU anti-piracy military operation ATALANTA (launched in 2008 in the framework of European Common Security and Defence Policy to combat the piracy off the coast of Somalia), the EU opted from the very beginning for seemingly the easiest and fastest solution, which is to obtain the green light from the UNSC. In the following, I will elaborate on the feasibility of this option.

Two options for getting the UNSC’s blessing

Theoretically, there are two similarly complicated legal possibilities to obtain the desired UNSC resolution: one is to qualify the human smuggling by itself as a threat to international peace and security, and another is to use as a blueprint the UNSC’s anti-piracy resolution.

Human smuggling as a threat to international peace and security?

The first possibility would be to argue that the human smuggling itself poses a threat to international peace and security, in order to open the door for the UNSC to qualify the current situation as falling under Article 39 of the UN Charter and subsequently authorise in accordance with Article 42 the use of “all necessary measures”, including the use of force, to remedy the situation. However, there has been a general reluctance within the Security Council to broaden the scope of Article 39 of the UN Charter, although the Council enjoys considerable discretion in determining a situation as a threat to international peace and security (see Krisch, Article 39, in Simma, Khan, Nolte, and Paulus (eds), The Charter of the United Nations – A Commentary (3rd edition, OUP, 2012), p. 1275). Even if there exists no legal impediment that would prevent the UNSC from considering a criminal phenomenon under Article 39 of the Charter, the Security Council has hitherto qualified only a few grave crimes such as terrorism-related crimes, genocide, crimes against humanity and war crimes as direct threats to international peace and security under Article 39 (see Gottlieb, “The Security Council’s Maritime Piracy Resolutions: A Critical Assessment.” Minn. J. Int’l L. 24 (2015), p. 10). This may be explained by the Security Council’s desire to avoid criticism for acting like a world legislator (cf. Treves, “Piracy, law of the sea, and use of force: developments off the coast of Somalia.” 20 European Journal of International Law, 2(2009), p. 401).

Anti-piracy resolution as a blueprint?

With the so-called anti-piracy Resolution 1816(2008) from 2 June 2008, the UNSC responded to the attacks and hijacking of vessels in the territorial waters and on the high sea off the coast of Somalia by deciding that third states could: (i) enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, and (ii) use, within the territorial waters of Somalia, all necessary means to repress such acts.

Although the resolution was adopted under Chapter VII, it did not follow a classic pattern, which would be to qualify the piracy by itself as a threat to international peace and security. Instead, it linked the piracy to the deteriorating situation in Somalia. The Council justified its decision by determining that incidents of piracy and armed robbery in the territorial waters of Somalia and the high sea off the coast of Somalia were exacerbating the “the situation in Somalia which continued to constitute a threat to international peace and security in the region”.

Another decisive factor in the adoption of the resolution was the previous consent of the Somali Transitional Federal Government (TFG), even if such consent is not legally required for the adoption of Chapter VII measures. In fact, the statements of the UNSC members before the adoption of the resolution as well as the tenor of the resolution itself indicate that without such consent, the resolution would not have been adopted (see Treves, op. cit., p. 406). It is in this spirit that the resolution authorised only those states which were cooperating with the TFG in the fight against piracy and for which advance notification had been provided by the TFG to the Secretary-General to enter and use force against pirates in the territorial waters of Somalia (see para. 7 of the resolution).

This experience suggests that if the EU tries this approach to obtaining UNSC consent, then it has to first persuade the members of the Council that the human smuggling exacerbates the security situation in Libya and second, it has to win the consent of the Libyan government. This would be indeed an easier option, since the UNSC has already determined the current situation in Libya as “[continuing] a threat to international peace and security”.

But how does the human smuggling in the Mediterranean exacerbate the security situation in Libya? From the remarks of the EU High Representative made at the UNSC on 11 May, one can discern that she tries to use the card of terrorism, arguing that “smuggling networks are linked to, and in some cases finance, terrorist activities, which contributes to instability in a region that is already unstable enough”. It can be seen in the same (i.e. exacerbating) context that the word “human trafficking” has been widely used in the current EU discourse, although it is hard to imagine that the EU stakeholders do not know the difference between smuggling and trafficking. For, under certain conditions, human trafficking can constitute a crime against humanity which as mentioned above can be qualified as a threat to international peace and security. While it is difficult to justify the argument that smuggled people on boats headed to Europe are under control of traffickers for the purpose of their future exploitation (which would qualify them as victims of trafficking), the EU could argue that the successful smuggling business is a pull factor for more people to embark on the dangerous journey through Libya, some of whom end up as victims of trafficking.

However, these arguments lack a strong evidential basis on the necessary link between smuggling and terrorism or trafficking. Therefore, it will be difficult to persuade, on this basis, those members of the Security Council who are not only generally indifferent to human rights violations but who also might clearly see that the EU’s primary concern here is curbing the irregular flows from the South rather than fighting against terrorism or human trafficking, for which the appropriate means are not just destroying fishermen boats.

Obtaining the politically necessary consent of the Libyan government(s) for a UNSC resolution seems to be a similarly difficult hurdle to overcome. The internationally recognised government residing in Tobruk already signalled its harsh discontent with the way the EU had handled the issue. More importantly, it seems that the government wants to use the current situation for its own purposes, demanding the lifting of the arms embargo so that it can retake the capital, which is controlled by the unrecognised rival government of so-called Libya Dawn. Since the places from which the smuggling boats depart are under the control of the latter, the EU seeks the consent of this group as well. In addition, without the consent of this group ongoing plans of building a Government of National Unity, which the international community is actively pursuing, will be strongly endangered. However, all of this means that the group is able to use the current situation as a leverage to legitimise its positions vis-à-vis the EU. Even worse, as a part of this strategy, it has already started apprehending irregular migrants en route to the EU and sending them to infamous detention centres. Both governments are thus trying to use the migration card in their favour, similarly to how Gaddafi attempted to blackmail the EU in the past.

Concluding remarks

The EU’s planned anti-smuggling military operation in Libya stands on fragile ground, both legally and politically. EU politicians, inspired by the UNSC’s 2008 anti-piracy resolution and the EU’s Operation ATALANTA, speak optimistically. However, strong factors resulting from the Security Council’s self-imposed restraint on authorising the use of force against a criminal phenomenon weigh against the adoption of an UNSC anti-smuggling resolution.

Considering the politics of the situation, it can be asked whether the EU undermined the rospects of implementing its military plans by reacting spontaneously and very publicly. It is another question whether, if realised, these plans will effectively respond to the current situation. Many commentators, including the UN Secretary General, agree they won’t. The EU may also have unintentionally jeopardized the ongoing peace talks between the rival parties in Libya by redistributing the negotiating cards among the major players. If so, this unintended consequence of the EU’s action plan exacerbates the very problem the plan seeks to resolve.