The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

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On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Given that challenge, EU forces that seek to destroy smuggling vessels would have to do so shortly before passengers arrive on board. We know from research into the smuggling business that larger fishing vessels lie in deeper water to await the arrival of passengers by dinghy. Inflatable boats can depart directly from shallow waters near the shore. Passengers can board inflatable boats more quickly than larger ones, but in both cases the time span can be very short.

Therefore, the EU operation will have to maintain a physical presence near to the Libyan shore. From a practical point of view, EU States would be able to identify a smuggling vessel in the short time span available by using boarding teams, which could also be deployed to the immediate coastline. In the alternative, EU forces may attempt to identify smuggling vessels simply by using night vision and infrared devices. Finally, they may collaborate with informants on shore to obtain information on vessels that could be used for smuggling, in order to target them even earlier. Informants could be State representatives such as police or army, secret service agents or, given the fragmentation of power in Libya, hired non-state informants.

The Mediterranean Is No Legal Black Hole

First, all scenarios make it likely that Member States’ forces participating in EU NAVFOR Med will exercise jurisdiction in respect of the right to life, as stipulated in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), as well as the right to life under European human rights law. A physical presence dense enough to preventively target smuggling vessels could mean that EU countries effectively control the waters in which they operate. But whether or not this is the case is not decisive, given that the understanding of jurisdiction has evolved beyond a mere spatial understanding, to situations where control and authority is exercised over a person. Courts have established jurisdiction in situations where migrant vessels are boarded, or where they are towed. Likewise, in the European context we have good reasons to believe that jurisdiction is established simply by the power to kill a person, a notion the European Court of Human Rights originally rejected in Bankovic.

Second, the right to life significantly constrains the conditions under which the EU NAVFOR Med could use force. In particular, the right to life prohibits the arbitrary deprivation of life. It requires a legitimate purpose, strict necessity and proportionality. I will not address whether fighting migrant smuggling can be a legitimate purpose, except to note that the Smuggling Protocol requires its member states to do so. Strict necessity gives priority to non-violent means, while proportionality demands that force is used only to the extent necessary to achieve the objective. In particular, the right to life would prohibit targeting (that is, using armed force directly against) smugglers. It would also warrant due diligence in planning and conducting operations that could potentially endanger human life. In all three scenarios laid out above, the right to life would appear to require EU NAVFOR to ensure that there is no one on board before targeting a vessel. Were EU NAVFOR forces to target vessels without prior boarding, the short time span available before passengers board is likely to produce prima facie violations of the right to life.

Third, the diligence required by the right to life functions as a catalyst for jurisdiction in respect of other obligations, too. It is not only the practical challenge of identifying smuggling vessels, but also the obligation to respect the right to life that will require the EU to maintain a dense physical presence along the Libyan coastline and to board suspected migrant vessels before using force. Therefore, other international legal obligations become pertinent for the States participating in EU NAVFOR Med, in particular non-refoulement and the right to leave any country, including one’s own.

In respect of non-refoulement, chances are high that EU NAVFOR Med forces will coincidently locate or receive distress signals of individuals in unseaworthy vessels, which means that they have a duty to assist them under Article 98 of the United Nations Convention on the Law of the Sea, and not to return them to Libya. Anything else would breach the non-refoulement provision in Article 33 of the Geneva Refugee Convention and, per Hirsi, the non-refoulement provision of the European Convention on Human Rights, Article 3. Passengers aboard smuggling vessels are primarily not Libyans, so they could fulfil the alienage requirement of the Geneva Refugee Convention (refugees have to be outside their country of nationality) and be refugees. Besides, it can hardly be argued that refugees enjoy in Libya the protection that the 1951 Convention requires in its catalogue of rights and obligations under Articles 2-34.

A military operation against smuggling vessels would also breach the right to leave any country, including one’s own, enshrined in Article 12(2) of the ICCPR. Article 12(2) is not absolute, but restrictions on it are subject to the same standards laid out above: They have to follow a legitimate aim and be necessary and proportionate. Whether the prevention of smuggling can be a legitimate aim under the ICCPR is open to debate. But even if so, the use of military force clearly is not the least intrusive means and is therefore not proportionate.

Ignore the Law, We Are the Law

The issues outlined above mean that a Security Council resolution would essentially produce norm conflicts, which could be resolved in only two ways. First, a potential Security Council Resolution could be read into the ‘arbitrary’ notion in Article 6(1) ICCPR and the limitation clause of 12(2) ICCPR. There is precedent for so doing: In Sayadi, CCPR/C/94/D/1472, the Human Rights Committee tested the lawfulness of the applicant’s asset freeze and travel ban under Security Council Resolution 1267 (1999) by reading the resolution into the limitation clause of Article 12(1). In this case, however, the use of force is unlikely to meet the necessity and proportionality tests of these articles, so a military operation can hardly be argued to be a lawful limitation.

In the alternative, the Security Council Resolution displaces human rights law. Whether and when a Security Council Resolution can lawfully do so is another debate. If the Resolution passes, that debate will arise once again. Only that this time the trigger would not be suspected terrorists, but desperate Syrians and Eritreans seeking refuge.

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Aurel Sari says

June 22, 2015

Julian, two quick points on the extra-territorial applicability of the ECHR to lethal targeting. First, the 'power to kill a person' certainly does not suffice to establish jurisdiction. Otherwise the mere fact that an EU member State possesses a weapon capable of killing anyone outside its borders would trigger the applicability of the ECHR to anyone within the (potential) reach of that weapon. Second, if 'killing at a distance' triggers jurisdiction contrary to Bankovic, then why did the Court engage in all those mental acrobatics in Jaloud? Why not simply declare that the Convention is engaged whenever State agents kill a person abroad, regardless of the nature and degree of control those State agents exercise over that person? All the talk about occupation, exercise of public authority and manning checkpoints would have been quite unnecessary if the Court was prepared to embrace 'cause and effect' jurisdiction, contrary to Bankovic.


Heiko says

June 22, 2015

It may be more complicated. There are very good reasons for Bancovic. It is the nature of the concention that the conditions of living in memberstates are better than elsewhere. On the other hand wars are fought in the real world. But not all cases are the same.

Martin says

June 22, 2015

Thank you for the excellent article. Aurel, I would be very interested to know why you categorically reject the notion that the "power to kill a person" might suffice to establish jurisdiction. Why should the act of killing a person not be considered as authority and control over the victim under the personal model? Isn't the power to kill a person control (over a person)in itself?

Second, if killing a person triggers jurisdiction, why should the distance between the shooter/military plane/drones and the victim be of any relevance? The Court has never explicitly overruled Bankovic and its "instantaneous extraterritorical act" argumentation, but other Courts have. In Al-Saadoon & Others the Hight Court came to the conclusion that distance is of no relevance: "Making the applicability of a system of human rights law depend on the distance between the gun and a person's head in a case where a person is shot is not a position which in my view can reasonably be sustained." (para.96).


Aurel Sari says

June 22, 2015


The reason is simple. We have to distinguish between ‘the power to kill’ and the actual use of that power. The parties to the European Convention all have the capability to kill individuals located outside their territories. The mere existence of such a capability does not constitute an exercise of jurisdiction within the meaning of Article 1 of the ECHR. Otherwise, virtually the entire population of the world would fall within the scope of the Convention and Article 1 would become quite meaningless as a threshold for its applicability.

At the most, what triggers the applicability of the ECHR is not the power to kill, but the actual use of that power. This distinction matters. If the mere capacity to project lethal force abroad is enough for the Convention to apply, then obligations regarding the planning and preparation of lethal operations (think McCann) would apply at all times. I don’t think this reflects either the law or reality.

In Al-Saadoon, Leggatt J adopted a principled approach. My point is that the European Court itself has not (yet) adopted such a position, as the reasoning in Jaloud demonstrates. De lege lata, the Strasbourg jurisprudence simply does not go as far as Leggatt J did. De lege ferenda, it is an interesting question whether it should do so. Leggatt J himself noted that such a principled approach would pose real difficulties and produce certain unattractive results. I agree with him on this point, but would go further and extend the ‘accommodation’ approach in Hassan to NIACs, as argued in our piece in the current volume of International Law Studies. If we want to go down this route and apply Article 1 of the Convention in a principled manner, we have to be prepared to compromise on the substantive provisions.


Julian Lehmann says

June 23, 2015

Thanks to all of you for your comments. Aurel, indeed, this may be a misunderstanding wording. I made my point in respect of the potential scenario of the ***actual targeting*** of a suspected smuggling vessel from an airplane or helicopter, in an ***actual naval operation***. Were ECHR jurisdiction to have evolved more into the direction of the argument of the counsel in Bankovic (if it is not fully there, I would think it has), I agree that it arises in respect of the actual use of a weapon. If the possession of a nuclear bomb together with the possession of strategic bombers alone makes Art. 1 applicable at all times, this would make the concept of jurisdiction useless. Quite frankly, given the debate we have even about jurisdiction by virtue of the actual use of a weapon, this seems so far fetched I hadn't even thought about it when wording the post. Why should the McCann type of arguments on planning be relevant in case an there is no planning? Thanks for your thoughts!

Aurel Sari says

June 24, 2015


I’m glad that we agree that the mere capability to project lethal power does not suffice to cross the threshold of jurisdiction. I’m not sure that this question is quite as farfetched, though. A finding that a State has acquired overall effective control over territory certainly does not mean that the State in question somehow physically holds or occupies every inch of ground. Rather, what it means is that the State has the capability to impose its will throughout that territory by projecting its power. Accordingly, in this case, the capability to project power does seem to establish jurisdiction.

I think there are two factors which differentiate this overall effective control over territory scenario from the mere capability of projecting power abroad (possession of a strategic bomber). First, to acquire overall effective control over foreign territory, a State would have to engage in some form of physical action within that territory first. Once that reaches a critical stage, we may presume that it has acquired the capability of imposing its will throughout the entire area, even though in fact it does not hold or control every inch of it. By contrast, the mere possession of a strategic bomber without its use lacks this element of physical engagement. Second, to establish overall effective control over foreign territory, a State will almost invariably deploy its forces and kit there. The resulting capability to impose its will is therefore closer, both in time and space, compared to the mere possession of a strategic bomber, which is more remote.

So why does this matter? I think it matters because the dividing line between these two scenarios is not necessarily a bright one. You gave a good example of this, when you wrote that a ‘physical presence dense enough to preventively target smuggling vessels could mean that EU countries effectively control the waters in which they operate.’ In this case, you have physical presence and capability to project power. If this suffices to establish effective control, just how far does the geographical reach of that control extend? The range of the ship’s gun? The range of its missiles? The range of its helicopter? The range of its radar? Moreover, just how dense does the presence have to be? Ten ships? Five ships? Why not just a single ship, if it’s a really big one? Or perhaps even a small one? These questions are confined to the maritime environment. They also arise in the air and on land.

The reason why I raised planning is because there is a temporal issue here. If the capability to project lethal power alone triggers jurisdiction, that would trigger the duty to plan the potential use of that capability in a way that conforms to the requirements of the ECHR. Does that mean that the personnel of a nuclear submarine have to be instructed and trained in the ‘degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society’ (McCann)? By contrast, if the capability to project lethal power alone does not trigger jurisdiction, but only the actual use of lethal power does, then Article 2 obligations are owed to the target at the exact time that lethal force is used against them. Imposing a duty to plan for that use of lethal force under Article 2 would therefore amount to extending the temporal application of Article 2 to persons who were not (yet) protected by it. If we decide that the planning requirements of Article 2 should apply nonetheless, then why not apply those requirements to all potential uses of lethal force? In which case, we are back at the nuclear submarine and have to wonder whether its personnel should be instructed and trained in the degree of caution expected from law enforcement officials.

Some food for thought, anyway.