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.