As the Italy-France clash over the disembarkation of survivors by civilian search and rescue operators escalated the European Commission’s launched an action plan to “address challenges along the central med”. While, the plan has been endorsed by EU interior ministers it is criticised by NGOs for being unworkable and recycling old mistakes. European politicians taken to the International Criminal Court (ICC) accused of conspiring with the so-called Libyan Coast Guard to push back migrants.

Following the tensions between Italy and France over the disembarkation of survivors rescued by Ocean Viking civilian rescue operators have “become the focal point of a mounting tempest over migration” between member states and the European Commission. On one side, Italy, leading a coalition of southern European countries, argued that NGO rescue ships operate in an “uncoordinated fashion”, encourage “asylum seekers” to flee to Europe and “should be more closely linked to the (often faraway) country where they are registered”. On the other side are countries like Germany, where several of these NGOs are registered, fearing that southern countries just want to “expel NGO boats”. Germany’s Italian ambassador, Viktor Elbling, said that NGO rescue boats are “merely filling a vacuum EU countries are creating” and “saving lives where state aid is lacking”. ECRE director Catherine Woollard in an editorial writes: “States accuse NGOs of creating a pull factor, a claim that has not just been rejected but also rebutted. People would still leave and smugglers would still put them on boats. NGO SAR presence means that fewer of them drown”. However, Italy continues to deny these facts, arguing that Italy’s coast guard rescues the great majority of migrants. Meanwhile, the Commission called for discussions with the International Maritime Organization (IMO) and member states on new international maritime rules on sea-rescues for charity boats. “The situation today with the private vessels operating at sea is a scenario which still lacks sufficient clarity,” said EU home affairs commissioner Ylva Johansson, continuing: “This current challenge was not thought of when maritime law was first agreed. There is a need for more cooperation between member states, flag states and coastal states and other relevant actors”. Johansson further noted on behalf of the Commission: “We have no concrete proposal and it’s not really the role of the commission to have that either”. Woollard criticises the commission’s selective approach saying: “The Commission is rather obtusely selective about when it chooses to play an active role. This year, the Ukraine crisis again has demonstrated how much more effective Europe’s response is when the active Commission is present, rather than the passive Commission that self-defines its role as ‘doing what the Member States want’”.

The European Commission proposed an action plan on 21 November to “address the immediate challenges along the Central Mediterranean migratory route, recalling that sustainable solutions are needed, as set out in the Pact on Migration and Asylum”. The action plan brings forward measures based on three pillars: cooperation with partner countries and international organisations, strengthening cooperation between all actors involved in search and rescue, and reinforcing the implementation of the Voluntary Solidarity Mechanism. On 24 November ahead of the EU interior ministers’ meeting, the UNHCR Chief Filippo Grandi called on the EU to place the migration routes in the Mediterranean at the center of its action, adding: “There’s been nearly 2,000 people who died or went missing in the Mediterranean only this year. While Member States are busy accusing each other, human lives are lost”. On the day of the meeting on 25 November, the European interior ministers welcomed the commission’s plan in an “extraordinary”, yet “productive” although “more can and must be done” to “find a lasting solution”. The ministers will gather again on 8 December to pursue the “difficult discussion”, and the search and rescue organisation, SOS Humanity called on the EU and its member states to give top priority to the right to life and compliance with international maritime law and human rights at Europe’s external borders in the Central Mediterranean. Meanwhile, NGOs didn’t “find anything new” about the commission’s plan, underlining that it is “just another reshuffle of old ideas that do not work”. SOS Humanity added: “EU continues to rely on its policy of preventing people fleeing to the EU. The EU is planning to expand cooperation with non-EU countries such as Libya” despite ongoing violations including detention, pushbacks and torture towards refugees by the EU-funded so-called Libyan coast guard”. Furthermore, Wollard says the commission plan’s “focus on the responsibilities of the non-European states on the other side of the Med” is a “notable weakness”, adding: “First priority for Europe should be agreements within Europe. There is a paradox here with the Commission downplaying its responsibilities for ensuring an EU-wide agreement– on the basis that SAR is not part of the EU’s legal order – but then claiming it can secure action by non-EU countries which have no reason to assist Europe”.

Meanwhile, high-profile European politicians, including the EU’s former foreign policy chief Federica Mogherini, Italy’s current and former interior ministers and the current and former prime ministers of Malta, the former executive director of European border agency Frontex Fabrice Leggeri and others have been named as the “subjects of a criminal complaint at the international criminal court alleging they conspired with Libya’s coastguard to illegally push back refugees trying to cross the Mediterranean Sea into Europe”. The criminal complaint, which was submitted at the Hague by the German NGO the European Centre for Constitutional and Human Rights (ECCHR), accuses the politicians of committing “crimes against humanity in the form of the severe deprivation of physical liberty” between 2018 and 2021 by “systematically intercepting boats in the Med and sending refugees back into detention in Libya”. Marco Minniti, Italian interior minister at the time of the Libya-Italy deal, commented on the complaint saying: “I don’t know [about the] complaint. I will evaluate it, like the other interior ministers from 2017 until today. At the time, the agreement was signed by the Italian prime minister, [Paolo] Gentiloni, and his counterpart, [Fayez] al-Sarraj. So, from all the records, it appears that I am not the signatory.” If the International Criminal Court in the Hague accepts the complaint, the listed politicians and officials “could in theory become suspects in a criminal trial and be summoned to appear in front of the Netherlands-based international tribunal”.

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This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.