19 February 2016

The Commander of the EUNAVFOR MED – Sophia operation hopes to move into Libyan territorial waters ‘as soon as possible’, as stated in his recent six monthly report. He identifies some political and legal challenges that need to be solved, to prevent ‘subsequent loss of credibility for the operation in the media and EU public opinion.’

The 22-page paper, dated 29 January, is restricted but was released by WikiLeaks on 17 February. It is written by the Operation Commander, Rear Admiral Enrico Credendino of the Italian Navy, for the European Union Military Committee and the Political and Security Committee of the EU. It gives refugee flow statistics and outlines the performed and planned operation phases (1, 2A, 2B and 3), the corresponding activities of the joint EU forces operating in the Mediterranean and the future strategies for the operation. One of the main elements within the report is the planned, but still pending transition from Phase 2A (operating in High Seas) to Phase 2B (operating in Libyan territorial waters) due to the volatile government situation in Libya, where the building of a ‘Government of National Accord’ (GNA) is still under way.

The Commander says that ‘as an operation we have made good progress, providing a deterrence effect in international waters, preventing smugglers from operating in international waters, and, as of 31 December 2015, contributing to the arrest of 46 smugglers and the destruction of 67 boats’ and that ‘from a military perspective, EUNAVFOR MED is ready to proceed to Phase 2B though the political and legal challenges ahead remain a significant challenge.’

The report presses the responsible EU bodies to help speed up the process of forming a ‘reliable’ government in Libya that in return is expected to ‘invite’ EU forces to operate within their territorial waters (Phase 2B) and later even give permission to extend the EU military operations onshore (phase 3).

Some legal obstacles would still remain, if the mission moves into Libyan territorial waters. First, an invitation from the GNA, as the sole legitimate Government of Libya, would be required, as well as a UN Security Council Resolution to provide the necessary legal mandate to operate.

Secondly, prosecuting suspected smugglers in Italy would not apply. “We will, therefore, need a new legal basis; either an agreement with the Libyan authorities that they will waive their right to prosecute suspected smugglers in Libya and allow them to be prosecuted by another Member State, or to have a transfer agreement in place for apprehended smugglers to be transferred to the Libyan authorities for prosecution. Both options have specific challenges end rely on the consent of the Libyan authorities,” he states. “I want to underline the fact that this issue must be solved before we can move to phase 2 Bravo. Without the required legal finish we will be compelled to release suspected smugglers apprehended in Libyan territorial waters, with a subsequent loss of credibility for the operation in the media and EU public opinion.”

ECRE remains critical of prioritising military forces to tackle people smugglers. “The most efficient method of shutting down smugglers – a goal we agree with – is to eliminate the need for their services by providing safe and legal channels to Europe,” ECRE’s former Secretary General, Michael Diedring, said when the mission was established. “A military operation will lead to more deaths, either directly, as collateral damage in this unwinnable “war” against smugglers, or indirectly as desperate refugees take even more dangerous journeys when boats are destroyed. The ultimate irony is that these people are fleeing war, persecution and violence; with this military action they are being met with the same,” he stated.

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This article appeared in the ECRE Weekly Bulletin of 19 February 2016. You can subscribe to the Weekly Bulletin here.