By Victoria Jensen
From January to October 2016, nearly 160,000 refugees crossed the Mediterranean to Italy. In response to the smuggling and trafficking across the Mediterranean, the European Union created Operation Sophia. However, Operation Sophia has resulted in migrant and refugee boats being intercepted by the Libyan Coast Guard and being returned to Libya. Through the Operation Sophia training program, the EU has effectively delegated European border control to the Libyan Coast Guard. This practice allows the EU to evade both their duty of non-refoulement and duty to rescue distressed persons at sea. The EU has trained Libyans to conduct actions which the EU could not legally accomplish itself under international law, and is therefore violating international human rights law by aiding and assisting Libya’s wrongful actions.
I. Operation Sophia
Operation Sophia was created by the EU in May 2015, as a military crisis response to the smuggling and trafficking networks in the Mediterranean. Its mission is to identify and dispose of ships used by traffickers. The Operation expanded in June 2016, to include a third phase of “capacity building and training of [the] Libyan Coast Guard and Navy.” This third phase causes particular concern for the rights of migrants and refugees under international law. The commander of Operation Sophia stated the program would provide training to the Libyan Coast Guard in international law and prevent the Coast Guard from reacting too violently when dealing with migrants.
Operation Sophia is indirectly preventing Libyan nationals and foreign nationals from leaving Libya. Since the implementation of the third phase of the Operation, news outlets have reported multiple instances of migrants on ships in the Mediterranean being sent back to Libya. The Reuters reported that within a two-day span, 1,425 refugees in twelve boats were stopped by Libyan patrols and turned back. The boats were found near a common departure point from Libya for refugees fleeing to Europe. Likewise, Human Rights Watch stated that the Libyan Navy and Guard were “intercepting boats and sending migrants and asylum seekers back to Libya.” Most recently, Sea Watch reported that the Libyan Coast Guard attacked migrants aboard a rubber boat during a rescue operation, causing four deaths. The EU has denied turning back migrant boats itself, but has made no statement about the actions of Libyan Coast Guard.
In 2016, Italy is on track to exceed Greece as Europe’s major migrant entry point, and approximately 160,000 migrants have arrived in Italy in the first ten months of 2016. Italy directly benefits from training the Libyan Coast Guard to intercept boats before they reach the high seas. By preventing the boats from entering the high seas, Operation Sophia vessels are avoiding their international law responsibilities to ensure the migrants’ safe passage—likely to Italy.
II. EU’s Responsibility under International Law
The EU must comply with international human rights law as it combats smuggling. The Treaty on European Union states that, “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” The EU is bound to the duty of non-refoulement, the duty to rescue distressed persons at sea, and the Protocol Against the Smuggling of Migrants.
Duty to Rescue Distressed Persons at Sea
First, the duty to rescue and disembark to a place of safety is binding on the EU. The International Convention on Maritime Search and Rescue requires parties assist vessels in distress at sea. The Convention also requires that the state responsible for the rescue ensure “that survivors assisted are disembarked . . . and delivered to a place of safety.” (emphasis added).
The conditions in Libya, however, do not meet the standards of a “place of safety.” A place of safety is a location in which “the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met.” States have a responsibility “to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened.”
The UN High Commissioner for Refugees has specifically reported that Libya does not meet the standard for a place of safety for disembarkment following rescue at sea. Armed groups in Libya have indiscriminately attacked cities and engaged in abduction, torture, and murder of civilians. Furthermore, Libya has not adopted asylum procedures, and migrants, refugees, and asylum-seekers are at risk of abuse through abduction, abusive detention conditions, exploitation, and torture.
Duty of Non-Refoulement
Operation Sophia is also bound to comply with the duty of non-refoulement. The Refugee Convention prohibits states from returning refugees to territories where their life or freedom may be threatened “on account of his race, religion, nationality, membership of a particular social group or political opinion.” Refugees are defined as persons outside their country of nationality who are unwilling to return due to a “well-founded fear” of persecution. This duty also extends to “asylum-seekers whose status has not yet been determined.” Many individuals intercepted by Operation Sophia qualify as refugees to whom states have a duty of non-refoulement.
Furthermore, non-refoulement applies “wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State.” (emphasis added). Whether Operation Sophia is responsible for intercepting a vessel in EU territories, on the high seas, or in Libya’s territory in connection with an anti-smuggling operation, the duty of non-refoulement applies.
Protocol Against the Smuggling of Migrants
Operation Sophia must also comply with the United Nation’s Protocol Against the Smuggling of Migrants. The Protocol allows states to “take appropriate measures” against vessels engaged in smuggling. It authorizes states to cooperate with other states to “ensure that there is adequate personnel training in their territories” to prevent smuggling. However, all training must be done while respecting the migrants’ rights and complying with international law obligations. States must protect migrants against violence, torture, and other “cruel, inhuman or degrading treatment,” focusing on those migrants whose “lives or safety are endangered.” As a result, the EU is obligated to protect migrants intercepted as a part of Operation Sophia from abuses that would occur if the migrants were returned to Libya.
III. Applying Accomplice Liability
The actions of the Libyan Coast Guard against migrants can be imputed to the EU through accomplice liability. The UN’s Draft Articles on the Responsibility of International Organizations, outline the requirements for an international organization to be responsible for the actions of an individual state. Actions of a state are “attributable” to an international organization when the organization “aids or assists” another state in violating international law, with knowledge of the circumstances of the wrongful act.
The EU is training the Libyan Coast Guard to intercept migrant boats in Libyan waters and send those boats back to Libya. The EU, therefore, is acting as an accomplice to Libya by aiding and assisting the Coast Guard. When the EU creates an operation plan and facilitates the action of participating units, it is responsible as an accomplice to the action. Because the Articles expand the responsibility of an international organization to actions of any “[s]tate or another international organization” the international organization aids or assists, the EU can be held responsibility for the actions of Libya, even though Libya is not a member of the EU.
Operation Sophia is training Libyans to encourage compliance with international law and prevent smuggling, but the EU is not preventing the return of intercepted boats to Libya. Human rights abuses occurring in Libya are well documented. If the boats were not diverted by the Libyans, they would reach international waters and be intercepted by Operation Sophia vessels. There, the EU’s duty of non-refoulement and duty to rescue would be unmistakably established. The EU is training—and therefore aiding and assisting—the Libyans in actions which would be violations of international law if the EU undertook such actions itself.
The EU has accomplished considerable good through Operation Sophia. The Operation has resulted in prosecution of 87 smugglers, disposing of 263 smuggling boats, and saving over 24,000 lives at sea. The program also provides much needed training on human rights. However, Operation Sophia must comply with international law. The EU lacks attainable, practical alternatives to Operation Sophia to combat the trafficking and smuggling across the Mediterranean. The best solution is to keep Operation Sophia in place, but cease training the Libyan Coast Guard to intercept vessels. This will allow the EU to avoid violating international law, allow the vessels to reach and be intercepted in international waters by Operation Sophia vessels, and obligate the EU to observe its duty of non-refoulement and duty to rescue.
*The front picture is fromUN authorises EU operation against Libya arms smuggling, EURACTIV, https://www.euractiv.com/section/global-europe/news/un-authorises-eu-operation-against-libya-arms-smuggling/. (The Editorial Board)
Victoria Jensen is a student of class 2017 at William and Mary Law School. During law school, she has been a part of the William and Mary Law Review, the Moot Court Team, and the Innocence Project Clinic. Her focus through law school has been criminal law, and she has interned with the Hampton Commonwealth Attorney’s Office, Norfolk U.S. Attorney’s Office, and the U.S. Department of Homeland Security. She grew up in Harlan, IA and received her bachelor’s degree in writing from Oral Roberts University in Tulsa, OK. After graduation, Victoria will be clerking for Justice Stephen McCullough on the Virginia Supreme Court.