27 October 2020
An EU military operation is assisting the Libyan Coast Guard in ‘pull-backs’ of people trying to cross the Mediterranean, by providing information on the location of boats in distress. Despite admitting that Libya is not a safe country in which to disembark people, the EU argues that it is acting according to international law. Legal experts say otherwise, but given the complex legal structure of EU security and defence missions, holding anyone accountable for this assistance with ‘pull-backs’ may prove difficult.
Aerial surveillance assists pull-backs
At the end of March, the EU authorised a new military operation in the Mediterranean, called EUNAVFOR MED IRINI. Known as Operation Irini, it is primarily concerned with enforcing the UN embargo on arms and oil smuggling to and from Libya. However, following on from Operation Sophia, it also has a mandate to train the Libyan Coast Guard and “support the detection and monitoring of human smuggling and trafficking networks.” The mission is also obliged to follow international law on assisting vessels in distress – for example, the small, unseaworthy boats that many people use to try to cross the Mediterranean, attempting to escape Libya.
Answers to a European parliamentary question have revealed that since the end of March, the mission has provided information to the Libyan Coast Guard on such vessels at least eight times. Between 31 March and 21 July, “aerial assets” - that is, planes and helicopters – deployed by Operation Irini “spotted eight potentially distress situations in the Libyan Search and Rescue Region.” They went on to inform “the competent Maritime Rescue Coordination Centre (MRCC)” – that is, the Libyan MRCC – according to EU foreign policy chief Josep Borrell, who was responding to a question from German MEP Özlem Demirel.
In an email to Statewatch, Özlem Demirel said that Irini’s assistance to the Libyan authorities was “scandalous”. She underscored that “the so-called Libyan Coast Guard is recruited from militias and is committing serious human rights violations. These ‘pull backs’ violate international law and are inhumane.”
It is well-established that migrants and refugees in Libya are frequently subject to arbitrary detention, torture and other forms of ill-treatment. The latest confirmation of the horrific facts came in a recent report by Amnesty International, who found that “refugees and migrants risk their lives at sea seeking safety in Europe, only to be intercepted, transferred back to Libya and delivered to the same abuses they sought to escape.” These abuses include
“…unlawful killings; enforced disappearances; torture and other ill-treatment; rape and other sexual violence; arbitrary detention; and forced labour and exploitation at the hands of state and non-state actors in a climate of near-total impunity.”
To the average observer, it might seem self-evident that it would be illegal to assist an organisation that is returning people to such situations. The EU, however, considers otherwise. Peter Stano, a spokesperson for the EU’s foreign policy arm, the European External Action Service, admitted in a written statement that “the EU does not consider Libya to be a safe country,” but insisted on the legality of Operation Irini’s actions.
He argued that “one has to realise that European or other foreign boats are not allowed to enter Libyan territorial waters without authorisation of the Libyan authorities. However, most search and rescue incidents occur there. Therefore, if an incident occurs in territorial waters of Libya, the body to be informed about it and to take action is the Libyan Coast Guard.”
Obligation or option?
Stano said that according to the international conventions on Safety of Life at Sea (SOLAS) and Maritime Search and Rescue (SAR), when Operation Irini learns of a vessel in distress, it is obliged to share that information “with all competent Maritime Rescue Coordination Centres (MRCCs) of the area, namely the Italian, Maltese and Tunisian MRCCs as well as the Libyan MRCC/JRCC, operated by the Libyan Coastguard and Navy.”
Nassim Madjidian, a research associate at Hamburg University specialising in the law of the sea, told Statewatch that in her view, the SOLAS Convention does not include a legal obligation “to provide information regarding distress cases to the Libyan authorities.”
She pointed to articles of the SOLAS Convention that explicitly exclude from its provisions on distress situations “warships, naval auxiliaries and other ships owned or operated by a Contracting government and used only on Government non-commercial service”. However, the Convention does encourage such vessels to “act in a manner consistent, so far as reasonable and practicable” with those provisions.
A 2018 paper produced by the Research Service of the German Bundestag highlighted the same point, referring to an assessment of the German Federal Ministry of Transport: “warships and state-owned vessels” can invoke the exceptions set out in the SOLAS Convention “in order to prevent sensitive information from becoming accessible to ‘unsafe’ recipients,” says the document.
Things may be different with regard to the SAR Convention, said Madjidian, as it requires that states coordinate their search and rescue operations and establish ship reporting systems to facilitate those operations. She also highlighted that neither convention forbids naval or military vessels from sharing information on vessels in distress.
Other legal obligations “may take precedence”
“Nevertheless,” Madjidian said, “I do not see where a ‘severe’ obligation to inform the Libyan authorities about distress situations can stem from.” Fundamentally, she underscored that: “Other legal obligations or duties which interfere with the transfer of information to the Libyan authorities may take precedence.” From this perspective, the EU’s favoured interpretation of the rules appears to prioritise state sovereignty – in this case, sovereignty which the EU is helping to reconstruct, through financial, logistical and administrative assistance – over saving human lives.
According to Madjidian, the real question is “whether coordinating and cooperating with the Libyan authorities is a breach of other legal rules stemming from international or EU law.” For example, the provision of information by EU military assets to the Libyan Coast Guard could be considered a “push-back by proxy,” she argued, or as “aid or assistance in the commission of an intentionally wrongful act.”
While it may seem morally obvious that such assistance is wrong, Madjidian said that it is a “complicated legal issue.” However, it is also an issue on which a case is pending at Europe’s top human rights court.
A disaster at sea
At around midnight on 6 November 2017, a boat carrying some 150 people left the coast near the Libyan capital Tripoli and began a precarious journey northward. Six hours later, the boat had begun taking on water and those on board managed to contact the Italian coast guard, which transmitted a distress signal to all vessels in the area.
The rescue boat Sea-Watch 3 (operated by the German NGO Sea-Watch) began heading towards the coordinates given by the Italian authorities – but the Libyan Coast Guard had received the same signal, and one of its boats was also heading towards the sinking dinghy.
By 8:30, the Sea-Watch 3 had arrived close to the scene, along with numerous other vessels – a Libyan Coast Guard boat (which had in fact been provided to Libya by Italy six months earlier), and a French warship and Portuguese aircraft that were part of the EU’s Operation Sophia. An Italian navy helicopter, part of Italy’s Mare Sicuro operation, arrived on the scene later; and an aircraft operated by Frontex was also briefly present before being told it could depart by the Italian authorities.
Just after 9:00, both Sea-Watch 3 and the Libyan Coast Guard arrived at the location of the sinking boat. By this time, 20 people had already drowned. Sea-Watch 3 had been told to head to the scene by the Italian MRCC and was effectively coordinating the rescue. The Libyan Coast Guard claimed that they had in fact been granted the role of coordinator by the Italian MRCC – but the crew of Sea-Watch 3 were never informed of this.
The result was a scene with one vessel attempting to save people from the water to bring them to safety in Europe; and another attempting to save people from the water only to take them back to abuse in Libya. As highlighted in a Forensic Oceanography report detailing the events of that morning, what happened was a clash between the “conflicting imperatives of rescue and interception.” 59 people were rescued and 47 were intercepted. One person – the child of one of those who ended up on board Sea Watch 3 – died during the incident.
Accountability for abuses
This was not the end of the story. In May 2018, a group of human rights organisations brought a case against Italy at the European Court of Human Rights due to its support for the Libyan Coast Guard – one of many legal and administrative complaints on similar issues that are ongoing.
Some of the survivors from the 6 November incident maintained contact with one another after they found themselves on opposing shores of the Mediterranean, making it possible to gather evidence that those who were taken back to Libya “endured detention in inhumane conditions, beatings, extortion, starvation, and rape. Two of the survivors were subsequently ‘sold’ and tortured with electrocution,” said a press release from the organisations bringing the case.
Ultimately, the complainants accuse Italy of outsourcing human rights violations to Libya, and thus being a willing participant in abuses. One of the key arguments of the case, which is still pending, concerns an issue raised by Nassim Madjidian – aid or assistance in wrongful conduct. A submission to the court in support of the complaint, drafted by a coalition of human rights organisations, argues that:
“The interveners submit that a State may be aiding or assisting in wrongful conduct when it provides funding, training or any other material support, discretely or cumulatively, to another State. This may occur when the purpose is to strengthen their capacity to intercept boats in territorial and international waters and return people trying to leave a country, including those in need of international protection. This is particularly grave when they are being returned to a territory where they are known to risk serious violations of human rights.”
A more recent submission in support of the complaint from the European Commissioner for Human Rights puts it more bluntly:
“Member states’ relevant authorities, when receiving distress calls originating from any search and rescue region, should not transfer, either formally or de facto, responsibility for rescue operations to other authorities when they know or should have known that this action would lead to the exposure of people in distress at sea to serious violations of their rights protected under the [European Convention on Human Rights].”
It has been possible to bring a case against the Italian authorities because of two key things – the evidence made available by those who suffered abuses in Libya and the fact that Italy is party to the European Convention on Human Rights (ECHR). Both the Convention and the European Court of Human Rights, which hears cases related to alleged violations of the Convention, are part of the Council of Europe, a 48-member body set up after World War II.
So what of the EU’s Operation Irini? If it were possible to locate individuals who had suffered human rights abuses due to Irini transmitting information on vessels in distress to the Libyan authorities, could the EU be held accountable?
A legal lacuna
Dr Stian Øby Johansen, an associate professor at the University of Oslo, told Statewatch it is extremely difficult to hold an EU military mission accountable for human rights abuses. “There is no proper accountability,” he said over a videocall, underlining that this is no accident.
The EU is founded, according to its treaties, “on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”. This means that all law and policy introduced and implemented by the EU should respect those rights and, where it does not, a claim can be brought before the EU’s highest court, the Court of Justice (CJEU).
However, military missions, like Operation Irini, are part of the Common Foreign and Security Policy – and this is explicitly excluded from the jurisdiction of the CJEU. As Johansen underlined in a recent article, because of this exemption: “Individual victims consequently lack access to the CJEU.” The exemption is one of the issues stifling the EU’s planned accession to the ECHR, which has been in the works since the 1970s and on which talks recently re-started.
The CJEU may be out of the question, but there are other potential means of redress. For example, a complaint could be filed with the European Ombudsman. However, non-EU citizens who do not live in the EU cannot bring a complaint before the Ombudsman (although it can launch ‘own-initiative’ inquiries into particular issues) and it cannot make binding decisions. So, for example, were the Ombudsman to conclude that Operation Irini’s assistance to the Libyan Coast Guard’s ‘pull-backs’ was not in accordance with the law, there would be no way for it to enforce that decision. The Ombudsman, therefore, cannot provide an effective remedy in this area.
An individual might also seek accountability before domestic courts, argues Johansen, highlighting Article 274 of the Treaty on the Functioning of the EU. This says that “disputes to which the Union is a party shall not […] be excluded from the jurisdiction of the courts or tribunals of the Member States.”
Thus, an individual could try to convince a domestic court to hear a case against the EU. However, even if they overcome the procedural and political obstacles that would likely stand in their way:
“…the outcomes of domestic proceedings are only binding as a matter of domestic law in one Member State, and they are in practice unenforceable since the Union has immunity against the enforcement of judgments against it. With the Union thus in principle being free to ignore their judgments, recourse to the domestic courts of EU Member States cannot be regarded as a sufficiently effective accountability mechanism.”
Johansen concludes that: “Reform of the accountability mechanisms applicable to CSDP missions is therefore needed,” and argues that a first step – prior to expanding CJEU jurisdiction and EU accession to the ECHR – could be the establishment of human rights review panels for EU military missions.
This would no doubt be of benefit in the long-term, but in the central Mediterranean, more immediate solutions are needed. Özlem Demirel, the German MEP whose parliamentary questions revealed Irini’s role in transmitting information on vessels in distress to the Libyan Coast Guard at least eight times since March, told Statewatch that: “The EU support for aerial surveillance and the cooperation with the torturing regime in Libya regarding the push and pull back of refugees must be terminated immediately.” The question remains: how?
 Council of the EU, ‘EU launches Operation IRINI to enforce Libya arms embargo’, 31 March 2020, https://www.consilium.europa.eu/en/press/press-releases/2020/03/31/eu-launches-operation-irini-to-enforce-libya-arms-embargo/
 Matthew Vella, ‘EU stops Operation Sophia and sends warships to stop Libya weapons trafficking’, Malta Today, 18 February 2020, https://www.maltatoday.com.mt/news/europe/100438/eu_stops_operation_sophia_and_sends_warships_to_stop_libya_weapons_trafficking
 Council Decision (CFSP) 2020/472 of 31 March 2020 on a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32020D0472
 Josep Borrell, answer to parliamentary question E-003730/2020, https://www.europarl.europa.eu/doceo/document/E-9-2020-003730-ASW_EN.html
 Özlem Demirel, parliamentary question E-003730/2020, ‘Sea rescue operations by EUNAVFOR MED IRINI military units’, https://www.europarl.europa.eu/doceo/document/E-9-2020-003730_EN.html
 ‘Libya: New evidence shows refugees and migrants trapped in horrific cycle of abuses’, Amnesty International, 24 September 2020, https://www.amnesty.org/en/latest/news/2020/09/libya-new-evidence-shows-refugees-and-migrants-trapped-in-horrific-cycle-of-abuses/
 Deutcher Bundestag Wissenschatliche Dienste, ‘Informationspflichten im Rahmen internationaler Seenotrettungseinsätze’, 7 August 2018, https://www.bundestag.de/resource/blob/566000/dc2f4b76bcfb0fe77bc1b52d2e19086a/wd-2-113-18-pdf-data.pdf
 See, for example: Nikolaj Nielsen, ‘EU Commission's Libya stance undercut by internal report’, EUobserver, 21 October 2020, https://euobserver.com/migration/149809; Nello Scavo, ‘Ue: così l’Italia ha progettato e pagato la nascita dell’area Sar libica’, Avvenire, 8 October 2020, https://www.avvenire.it/amp/attualita/pagine/cosi-l-italia-ha-progettato-e-pagato-il-meccanismo-di-cattura-dei-migranti-per-conto-di-tripoli; ‘Hundreds of NGOs and individuals call for the revocation of Libya's maritime search and rescue zone’, Statewatch, 29 June 2020, https://www.statewatch.org/news/2020/june/press-release-hundreds-of-ngos-and-individuals-call-for-the-revocation-of-libya-s-maritime-search-and-rescue-zone/
 The account here is based on that provided in a meticulously-detailed report: ‘Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean’, Forensic Oceanography, pp.87-99, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf
 Ibid., p.94
 ‘The legal battle to hold the EU to account for Libya migrant abuses’, Statewatch News, 12 August 2020, https://www.statewatch.org/news/2020/august/the-legal-battle-to-hold-the-eu-to-account-for-libya-migrant-abuses/
 ‘S.S. and Others v Italy, written submissions on behalf of the AIRE Centre, The Dutch Refugee Council, the European Council on Refugees and Exiles and the International Commission of Jurists’, 11 November 2019, https://www.icj.org/wp-content/uploads/2019/11/ECtHR-SS_v_Italy_final-JointTPI-ICJECREAIREDCR-English-2019.pdf
 ‘Third party intervention by the Council of Europe Commissioner for Human Rights, S.S. and others v Italy’, 15 November 2019, https://rm.coe.int/third-party-intervention-before-the-european-court-of-human-rights-app/168098dd4d
 Article 275 TFEU states: “The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.” See: ‘Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union’, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT
 Dr Stian Øby Johansen, ‘Human Rights Accountability of CSDP Missions on Migration’, EU Immigration and Asylum Law and Policy, 8 October 2020, http://eumigrationlawblog.eu/human-rights-accountability-of-csdp-missions-on-migration/#more-2839
 “Finally, and this is an important point, it holds that, in as much as its [the CJEU’s] competence is limited with respect to the CFSP, allowing the ECtHR to hear cases in respect to it would amount to submitting effective control of this policy to a non-EU body.” https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556975/IPOL_STU(2016)556975_EN.pdf
 The Ombudsman’s work has had some effect in the area of CSDP missions, for example with regard to access to documents. See: ‘All EU security and defence missions to adopt access to documents policies - but enforcement will be voluntary’, Statewatch News, 4 December 2019, https://www.statewatch.org/news/2019/december/all-eu-security-and-defence-missions-to-adopt-access-to-documents-policies-but-enforcement-will-be-voluntary/
 ‘Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union’, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT
 ‘Human Rights Accountability of CSDP Missions on Migration’, http://eumigrationlawblog.eu/human-rights-accountability-of-csdp-missions-on-migration/#more-2839
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