[Sondre Torp Helmersen is a PhD Candidate at the University of Oslo and Niccolò Ridi is a PhD Candidate at King’s College London and SNSF Research Assistant, The Graduate Institute, Geneva.]
The recent disasters off the coasts of Italy have been the deadliest documented incidents in the troubled history of migration in the Mediterranean sea. The unprecedented number of lives lost at sea has prompted outrage in a number of countries and brought the Mediterranean migrants Crisis at the top of the European political agenda. After more than 1000 people drowned in ten days, a summit was finally called by the President of the European Council Donald Tusk.
The outcome of the meeting has been met with disappointment: outside of southern European Countries, plans for a more equitable distribution of migrants within the European Union states do not seem a priority, and the measures agreed upon focus merely on preventing departure. States have agreed on a number of measures comprising the tripling of the funding allocated to Europe’s Operation Triton (which had previously been called ‘woefully inadequate’ by the UN High Commissioner for Refugees Antonio Guterres), improved cooperation against smugglers networks, a generic pledge to do more for refugee protection and resettlement on a voluntary basis and, more controversially, actions directed to identify, capture and destroy vessels used by smugglers before they can be used.
The idea of targeting smugglers’ vessels was originally included in a 10-point action plan relying on the precedent of Operation Atalanta, which focuses on protecting on preventing piracy acts off the coast of Somalia. The adoption of such a strategy as a means of dealing with a migrants crisis, however, calls for careful consideration.
European leaders have asked EU High Representative for Foreign Affairs Federica Mogherini “to propose actions in order to capture and destroy the smugglers’ vessels before they can be used”. However, aside from rumours on the possible use of Apache helicopters targeting vessels from a range of 2 km, proposals on the use of force have so far been quite vague, and their wording careful enough to suggest that any action would have to be consistent with international law. Angela Merkel is reported to have suggested that either a Security Council resolution or the cooperation of a Libyan unity government would be prerequisite for these operations. French President François Hollande has said that France and the United Kingdom will push for a Security Council resolution. But how do these proposed operations fit in the traditional paradigms on the use of force?
2. The Legality of Using Force
The force envisaged by European leaders would apparently be used to destroy boats docked in African harbours or internal or territorial waters. This would violate the prohibition of using force in Article 2(4) of the UN Charter, unless one of its exceptions apply. Attacking the boats may alternatively be classified as ‘law enforcement’ rather than ‘use of force’ (e.g. Guyana v Suriname para 445), but such enforcement would be equally illegal in another State’s territory or internal or territorial waters in the absence of the same exceptions.
The exception for self-defence is not applicable, since there has been no “armed attack” against European countries from African States or people smugglers (the latter would be relevant if one recognises a right to self-defence against non-State actors). There may also be a right for States to use force to protect their nationals abroad, but European nationals are generally neither threatened by nor involved in the smuggling. The more or less debunked doctrine of ‘humanitarian intervention’ would also not be applicable, since, even if one could argue that parts of Africa and/or the Middle East are suffering humanitarian crises, destroying people smugglers’ ships would not help alleviate those crises.
The simplest approach would be to have the consent of the relevant African States. In most cases this would mean Libya. A complicating factor is the current split between the two governments that claim to represent the State of Libya. One is based in Tripoli, the other in Tobruk. This raises the question of which of these, if any, that may give valid consent to the use of force in Libyan harbours and waters. The Tobruk government controls the majority of Libya’s territory, and is recognised by most other States as Libya’s government. However the Tripoli government controls the country’s traditional capital as well a substantial part of its territory. Some territory is also controlled by other groups, including the (so-called) Islamic State. In short, the situation is murky. After having repeatedly offered its cooperation to help fight the smuggling operations, the Tripoli government has said it will not give consent to using force against people smugglers. The Tobruk government has apparently not yet taken an official position.
The second option is to get authorisation from the UN Security Council, under the UN Charter Chapter VII. Such authorisation was given for the EU’s anti-piracy ‘Operation Atalanta’ off the coast of Somalia. However in that case the authorisation was made conditional on the consent of the Somali government. A similar condition could be set now. Authorisation would also require the consent of the UNSC’s five permanent members. Relations are currently frosty between Russia and the West, and one reason is how the Western powers used and possibly abused the 2011 authorisation to use force in Libya. Indeed, President Hollande has conceded that some convincing might be necessary to overcome Russian reluctance. Another basic condition for the UNSC to authorise the use of force is that the force is necessary to “maintain or restore international peace and security” (Article 42), in the presence of either a “threat to” or “breach of” international peace or an “act of aggression” (Article 39). The most plausible route would be to argue that the situation in the Mediterranean constitutes a “threat to the peace”. This is not obvious from the text of Article 39, but the UNSC has interpreted the provision highly flexibly in the past, and may well do so again. For example, in Resolution 668 (on Iraq’s treatment of its Kurdish population), the UNSC held that “a massive flow of refugees towards and across international frontiers … threaten[s] international peace and security”.
Other legal issues may also arise. African countries’ failure to clamp down on people smugglers’ activities may constitute a violation of the ‘duty of vigilance’ (Armed Activities para 246-250), but such a violation does not in itself authorise other States to respond with armed force. Further, if we concede that international humanitarian law applies, smugglers’ boats would be entitled to protection as civilian objects. The smugglers’ activities should not qualify as ‘piracy’ under the UNCLOS Article 101. That would in any case only make them liable to seizure by force by any State on the high seas (Article 105). To argue that the provision allows to destroy their ships when docked in a harbour seems too much of a stretch.
3. Conclusion: Another Problem that Cannot be Solved by Force
While there are legal avenues open for using force against African people smugglers, a wholly different question is whether this would actually contribute to solving the problem. The former head of operations of Atalanta has recently stated that to destroy smugglers’ boats would not be effective, as the boats used tend to be cheap and easy to replace. In a broader perspective, it would help solve neither the underlying causes of migration, which include conflict and misrule in Africa, nor the causes of the EU’s attempts to restrict migration, which include its social and economic costs.
The EU does seem to envisage the destruction of boats as one element in a broader set of tools. What is lacking, though, is an attempt to improve the current European asylum framework and a more equitable distribution of migrants among the members of the Union. This remains one of the most controversial and polarising issues in the EU. It therefore comes as no surprise that states less concerned by the refugee flows, such as the UK, would lend their support to operations at sea but avoid committing to any plans for a new resettlement system.
Finally, but perhaps most importantly, the construction of a narrative that places emphasis on the criminal nature of smuggling activities is conspicuous. There is clearly no question that smugglers are criminals. The idea of a “war on smugglers” seems to fit the policy goal of avoiding to give the Triton operation a clear search and rescue mandate – indeed, one of the most significant concerns voiced by human rights groups. As Kenneth Roth has suggested, to reduce the problem to the “false pretext of criminality” is to ignore the gravity of the situations from which many migrants are fleeing, and the resulting readiness to go to any lengths to seek better opportunities on European soil.