This report outlines the development of the EU’s naval operations in the Central Mediterranean since irregular migration to its shores had increased in 2015.
In September 2017, former High Representative of the EU Frederica Mogherini criticized US president Trump’s executive order 13769, the so-called Muslim ban, and his proposal of building a wall at the Mexican border, emphasizing the EU’s identity to “celebrate when walls are brought down and bridges are built.” Given the EU’s migration policy and its actions in the Mediterranean, however, the EU’s criticism is hypocritical. Some voices are even suggesting that today's migration policy enforced by the EU should be considered even more brutal than the US approach.
In response to growing migration flows to Europe that began in 2014, the EU took different measures with the overall objective to limit irregular migration1. For example, the EU-Turkey Deal of 2016 and the cooperation with the Libyan Coast Guard helped in decreasing migration to the EU via the land route and across the Central Mediterranean from more than 1 million arrivals in 2015 to around 123,000 in 2019. Accordingly, enhanced border controls as well as externalization and securitization of migration has limited migration to the EU significantly since 2015. Since 2016, the EU has strengthened Frontex, the European Border and Coast Guard Agency, previously known as the European Agency for the Management of Operational Cooperation at the External Borders. The change of the name was decided to reflect Frontex’s broader mandate in securing EU borders. Frontex has significantly increased its personnel, which should reach up to 10,000 by the year 2027. The 2020 budget for Frontex records an increase of more than 32% compared to 2019, with a budget rise of 101 million Euros. In the EU’s multiannual financial framework (2021-2027), the Frontex budget is to grow to 9 billion Euros.
The approach to limit migration is particularly reflected in the EU’s newest naval operation Irini (Greek for “peace”) in the Central Mediterranean, which aims to oversee the UN arms embargo for Libya and adhering to cooperation with the Libyan Coast Guard. Mission Irini replaces operation Sophia that was introduced in 2015 to prevent human trafficking and smuggling in the Central Mediterranean, and which rescued thousands of migrants. Although more than 20,000 migrants have died in the Mediterranean since 2014, Irini is explicitly not a sea rescue operation. This marks a shift in the operations conducted by the EU. While they all aimed at securing the EU’s external borders and limiting irregular migration, Irini is the first mission that will strategically be conducted in an area where there is no migration route to circumvent the rescuing of people at sea.
This paper will outline the EU’s outsourcing of responsibility to committing international law violations by analyzing the development of three maritime operations of the EU in the Central Mediterranean. The first operation that will be analyzed is Themis which was formerly called Triton. The introduction of Triton has marked the first shift from the former Italian operation Mare Nostrum that followed a humanitarian approach of rescuing people in distress whereas Themis’ as well as Triton’s main objective is the control of the EU’s external borders. The second operation of this analysis will be Sophia which was introduced in response to human trafficking and smuggling in the Central Mediterranean in 2015. While the operation had rescued many migrants, the operation revealed dissent among member states on how to distribute migrants and how to proceed with search and rescue (SAR) as a whole. Lastly, operation Irini as Sophia’s successor will be analyzed. Its main objective is to oversee the arms embargo for Libya and to control oil exports. Given the different operational locations, the operations differ significantly from each other and reflect a remarkable shift away from the intention and approach to search and rescue people.
EU aims to contain migration
In response to increased migratory flows to the EU that started in 2014, the EU has taken drastic measures with the main objective to overall limit migration. Given the complex situation of regular pathways to enter the EU, the measures target the prevention of irregular migration, which primarily takes place via the Central Mediterranean by boat or via land from Turkey to Greece. Since the implementation of maritime operations in the Mediterranean, the EU has frequently been criticized for violating international law and has been accused of an anti-migration policy. Non-governmental organizations (NGOs) and several Members of the European Parliament (MEPs) have criticized the current operations, such as the cooperation with the Libyan Coast Guard that is heavily funded by the EU.
Through the cooperation with the Libyan Coast Guard, the EU has managed to externalize its border control and outsourced the responsibility for systematic violations of international law and human rights. The LGC has intercepted migrants from reaching EU shores and has detained them in camps where they are exposed to inhumane conditions. Consequently, the forced return of migrants to Libya violates the principle of non-refoulement as the civil war in Libya has been ongoing since 2014.
Dunja Mijatović, Commissioner for Human Rights of the Council of Europe, has called on the member states to ensure safe disembarkation as well as search and rescue at sea, especially in times of the pandemic. However, Malta and Italy declared their ports to be unsafe to prevent NGOs rescue vessels from entering. While the German Minister for Interior, Horst Seehofer, has called for a halt of rescue operations, given the difficult situation due to COVID-19 in the EU, NGOs have accused him of letting people drown in the Mediterranean. Prior to these developments, Libyan authorities declared their ports to be unsafe, not allowing migrants to disembark after they were intercepted in the Mediterranean from reaching European shores. Given that crossings via the Mediterranean continue but migrants are left stranded, members of the Italian Parliament and members of the European Parliament have urged Italian Prime Minister Conte to rescue migrants in distress.
Conflicts over a migration policy reform in the EU
Given the EU’s inability to find a common response to the fatalities in the Mediterranean, several member states have found ad hoc solutions in distributing migrants in the last years. Since the so-called “migration crisis” in 2015, several member states, particularly Poland, the Czech Republic and Hungary, have been reluctant to accept migrants. In April 2020, the European Court of Justice ruled that these member states failed in fulfilling their obligations under EU law. In May 2015, the European Commission had suggested establishing a quota mechanism to reform the Dublin Regulation. According to the Dublin regulation, the member state in which the asylum seeker first enters EU territory is obliged to conduct the asylum procedure. The idea of the reform was to support those member states located at the external borders in which the majority of asylum seekers arrive. By relocating asylum seekers among all member states depending on variables such as their population size and GDP the burden of asylum procedures should be distributed amongst all, according to the quota mechanism.
Since some member states have refused to accept more or any asylum seekers, there has been an unequal distribution of rescued migrants among member states on a voluntary basis. In the last three years, around 80% of all asylum applications were filed in five countries: Germany, Greece, Spain, France and Italy. In relation to their population size most applications were filed in Cyprus, Malta, Greece, Luxembourg, Sweden and Germany. Poland, the Czech Republic and Hungary, in contrast, refused to resettle migrants that had arrived in Greece and Italy.
Declining focus on the save and rescue approach in the EU’s naval operations
As of March 2020, more than 500,000 migrants were rescued by EU operations in the Mediterranean. However, while the EU's rescue missions have declined since 2017, the rescue engagements of NGOs and commercial vessels have increased in response to the halt of the Italian operation Mare Nostrum attempting to fill the gap of SAR operations. According to studies, the increased presence of NGO operations relieved EU assets in their operations.
The number of migrants arriving in the EU has decreased significantly since the EU-Turkey deal went into force and the EU’s cooperation with the Libyan Coast Guard was established (through an amendment of operation Sophia’s mandate). As of March 2020, more than 20,000 migrants have died between 2014 and 2020 in the Mediterranean. More than 16,000of these have died in the Central Mediterranean, making it the deadliest route. Although the EU conducted operations in this area until March 20192, emphasizing its commitment to the responsibility to rescue people in distress, the following subchapters will outline the development of the EU’s missions, showing a trend towards an increased externalization of border control and away from the responsibility of search and rescue.
Operation Triton was established in November 2014 and was operated by the European Border and Coast Guard Agency Frontex. The operation was the predecessor of the Italian mission Mare Nostrum, which was the first mission in the Central Mediterranean deployed in 2013 as a response to increased migratory flows from Libya. Whereas Mare Nostrumwas heavily funded, with a budget of 9 million Euro per month by the Italian government, and rescued more than 130,000 migrants within its one year operational period, the budget of Triton amounted to only 2.9 million Euro per month and was financed by the EU. According to the Italian Minister for Interior at the time, Angelino Alfano, Mare Nostrum was ended as it was considered an emergency operation. However, it can be assumed that Italy wanted to push for an EU-wide burden sharing of distributing the migrants that were rescued. The core tasks of Triton were the surveillance of the EU’s external borders and the prevention of foreign terrorist fighters entering the EU. In February 2018, operation Triton was replaced with operation Themis which had a stronger focus on law enforcement and security, and which was to better reflect “the changing patterns on migration”, hinting at increased flows of irregular migration. Another change of the mandate included the reduction in the distance of patrolling. Whereas Triton’s operational area was 30 miles from the Italian coast, Themis operates only 24 miles from the Italian coast and does not cover Maltese waters (as operation Triton did). Accordingly, vessels under the EU mandate could not operate in waters beyond this mark. Already when Triton was established, the EP criticized the insufficiency of the operational area, as it did not cover the area with a high number of fatalities. Consequently, Themis’ contribution to rescue at sea is less than operation Triton’s contribution.
Themis’ mandate includes disembarking migrants at the closest port instead of only Italian ports, as was the case forTriton. As a consequence, the Maltese government rejected being a part of Themis, assuming that this could lead to an increase of migrants disembarking in Malta. This reflects the disunity among EU states of how to handle migration via the Central Mediterranean.
International law violations and the criminalization of NGOs
In 2015, the EU launched the military operation EUNAVFOR “Sophia” to prevent human trafficking and smuggling in the Central Mediterranean. The operation’s mandate was extended in June 2016 to also include the training of the Libyan Coast Guard and Libyan navy as well as to oversee the arms embargo on the high seas, as stipulated by UN Security Council Resolution (UNSCR) 2292 (2016) and later agreed in UNSCR 2357 (2017). In July 2017, the mandate was again amended to include surveillance on illegal trafficking such as oil exports in accordance with UNSCR 2146 (2014) and UNSCR 2362 (2017). Accordingly, the amendments of Sophia show a development of intensifying cooperation with the Libyan Coast Guard and outsourcing the responsibility for migration management to third countries. A key point of criticism of the mandate’s amendment was that it no longer had the priority to rescue people in distress. As a consequence of the amendment, migrants trying to reach EU territory were intercepted by the Libyan Coast Guard and brought back to detention centers in Libya. In comparison to Themis, whose mandate had stipulated not to bring migrants to any non-EU country, the amendment of Sophia’s mandate allowed the Libyan Coast Guard to bring migrants back to Libya, thus violating the principle of non-refoulement.
Moreover, the Libyan Coast Guard has threatened and hampered NGOs conducting rescue operations in international waters. While NGOs are thus exposed to more difficult conditions in carrying out their work, the Council of the EU has commended the cooperation with the Libyan Coast Guard to be working effectively with regard to the decrease in crossings to the EU.
In June 2018, former Italian Minister of the Interior Matteo Salvini, member of the radical right party Lega, introduced a policy of closing Italian ports for NGO ships that carried rescued migrants. Whereas the vessels of operation Sophia were to continue patrolling the area, marine officers reported that Italian authorities stopped NGO vessels from entering Sophia’s operational location and were instead sent elsewhere. In addition, Italian authorities called upon the Libyan Coast Guard to intercept migrants in distress instead of sending vessels operated by member states to rescue those migrants. While the EU claimed that the cooperation with the Libyan Coast Guard was established to prevent fatalities in the Mediterranean, the United Nations High Commissioner for Refugees, International Organization for Migration and NGOs have criticized the cooperation for resulting in push-back policies that violate international law. As those organizations have repeatedly pointed out, migrants in Libya are exposed to a civil war and often face abuses such as torture, rape, extortion, forced labor, slavery, dire living conditions, and extra-judicial execution. In July 2019, after 50 migrants imprisoned in the Tajoura detention center in Libya were killed by an airstrike, the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) called in a joint statement to evacuate and resettle migrants in Libya to safe countries and to allow those migrants who wish to return to their home countries to do so.
Disagreements between EU member states on how to find a common response on migration and how to deal with migrants that entered the EU via the Mediterranean have increased the outsourcing of the responsibility of rescuing at sea to the Libyan Coast Guard. Since Sophia’s location in the Central Mediterranean is frequently used by migrants to reach Europe, the mission rescued over 44,000 migrants during its operating phase. However, studies found evidence that people rescued by Sophia only account for 13% of the total that were saved in 2016. Taken together with Triton, the two operations rescued a smaller number of migrants than NGO vessels until mid-2017. While the EU views Sophia as a success due to the decrease of irregular migrants to the EU since the deployment of the operation, politicians criticize the EU’s inability to monitor the work of the Libyan Coast Guard. To ensure compliance with human rights, the LGC was given GoPro cameras to be used during the mission, so the videos could be used for the evaluation of the operation. However, it was also criticized that the quality and number of the videos were insufficient, suggesting that only videos were uploaded in which human rights violations were not visible.
Due to the ongoing disagreements between the member states on a distribution mechanism of migrants, fears about a “pull factor” of mission Sophia, particularly by former Italian Minister for the Interior Salvini, and the number of rescued migrants during Sophia’s operational phase, the EU decided to suspend the naval part of the mission in March 2019. However, the “pull factor” narrative ignores the complexity of forced migration and the reasons for migration. Previously, all migrants disembarked at Italian ports, although Italy’s former Minister of Defense Elisabetta Trenta, member of the Five Star Movement, had called for a change in the port of entry principle, according to which migrants seeking asylum have to file their applications in the EU country where they first arrive. Instead, Italian politicians suggested a rotating port of entry including other member states at the EU’s external borders to share the burden. As part of the EU Commission’s proposal for reforming the Dublin regulation, an allocation mechanism in cases of inappropriate pressure was suggested, but is yet to be adopted by the Council.
As a result, Sophia was then continued by aerial surveillance with unmanned drones, as the obligation to rescue at sea under international law does not apply in this case. While some MEPs like Erik Marquardt, member of the Green Party, and Katharina Barley, member of the Social Democrats, had called for a search and rescue operation by the EU, conservative MEPs claimed that this should not be part of Sophia. Instead, the cooperation with the Libyan Coast Guard should be continued, they argued. This was heavily criticized by some MEPs, emphasizing that interceptions by the Libyan Coast Guard constitute human rights violations.
In October 2019, the Committee of Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament (EP) put a resolution on search and rescue in the Mediterranean (2019/2755(RSP) forward, with the attempt to establish a coordinated approach. However, members of the European People’s Party, the European Conservatives and Reformists Group and the Identity and Democracy Group in the EP blocked the resolution from being adopted. At the same time, the interior ministers of Italy, France, Germany and Malta reached the Malta agreement, which stipulates an automatic redistribution with a rotation principle of the receiving countries for all asylum seekers of those rescued at sea. However, those rescued could only disembark from NGO vessels since Sophia’s vessels had already been suspended by the time.
The EU’s increasing focus on the Libya arms embargo
In March 2020, the EU decided to suspend operation Sophia and introduced its new mission Irini. The main objective of this operation is to oversee the UN arms embargo for Libya. Other tasks include the prevention of illegal oil exports, training of the Libyan Coast Guard as well as the prevention of human trafficking. The EU’s role in overseeing the arms embargo for Libya, which had already been in place since the UNSCR 1970 of 2011 as well as UNSCR 2292 of 2016 but had not been enforced, was a result of the Berlin conference in January 2020. The conference was attended by representatives of Germany, the US, Russia, the UK, France, China, the United Arab Emirates, Turkey, the Republic of the Congo, Italy, Egypt, Algeria, the United Nations, the European Commission, the European Council, the African Union and the Arab League. In addition, al-Sarraj and General Haftar were invited to the conference.
There it was decided that the EU would assume responsibility for monitoring the UN arms embargo. Whereas the foreign ministers of France, Italy, and Germany, as well as the EU’s High Representative, called for resuming peace talks and to comply with the agreed ceasefire in Libya, General Haftar, one of the conflict parties, rejected a UN agreement on the formation of a national unity government from 2015 in April 2020. Consequently, the civil war in Libya continued and encouraged more migrants that are located in Libya to leave for Europe.
The mandate for operation Irini reflects the compromise reached between the member states on how to act in the Mediterranean and how to overcome previous disagreements on the issue. Unlike operation Sophia, Irini is conducted in the East of the Central Mediterranean close to Benghazi and the Suez Canal, an area that is not frequently used as an escape route by migrants from Libya. Since all vessels are obliged to rescue people in distress under international law, the Council of the EU decided to conduct the mission in an area where less people would have to be rescued in order to reach a common position with the member states that fear a “pull factor” by the presence of EU vessels in a given area. However, a study by the think tank ISPI shows that there is no empirical evidence that the presence of EU vessels is a pull factor for migrants.
Irini’s mandate can be renewed after its one-year duration but is to be evaluated every four months if the presence of the vessels will have an impact on increased migration flows. In this context, observers fear that member states could make use of the evaluation mechanism to block the operation from continuing. Particularly Hungary and Austria previously stood out by blocking a relaunch of operation Sophia and their emphasis against a rescue operation. It was furthermore agreed not to disclose the location of where rescued migrants will be sent. Accordingly, there is no control mechanism in place that monitors if migrants are brought back to Libya or to a port in the EU. While Ursula von der Leyen, President of the European Commission, in her agenda for Europe “A Union that strives for more”, emphasized the need for a more sustainable approach for search and rescue, operation Irini clearly lacks an approach to implement this in practice.
Increasing disagreement among Member States
After deploying the operation, Joseph Borell, High Representative of the EU in charge of the EU’s foreign policy, acknowledged that Irini differs significantly from Sophia. While he emphasized the importance of sharing the burden of rescued migrants among member states, he left open if this would concern all member states and what an agreement could look like. In a similar context, the interior ministers of the four largest member states—Spain, Italy, France. and Germany—have called for a distribution mechanism of asylum applicants and a mechanism for search and rescue solidarity. Accordingly, the countries at the EU’s external borders should not be overburdened with asylum claims. The four member states therefore proposed a pre-screening of all asylum seekers trying to enter the EU. However, such proposals have been made frequently but always failed as some member states refused to accept a distribution mechanism involving all member states. The latest status quo therefore suggests a continuation of finding ad hoc solutions by a “coalition of the willing”. Although the EU released its new migration pact in September 2020 with the aim of a more cohesive approach of handling migration, no distribution mechanism was proposed. Instead, the European Commission lays out a policy of “flexible solidarity” according to which member states that refuse to accept asylum seekers can financially and logistically assist other member states with returns.
With Irini focusing on maritime surveillance, it was feared that the operation could disadvantage the internationally recognized Government of National Accord (GNA) of Fayez al-Sarraj, which receives its arm supplies from Turkey by sea. Due to Turkey’s support for the GNA since January 2020, Greece and Cyprus have openly supported General Haftar in order to minimize Turkey’s influence in the Eastern Mediterranean. This suggests that particularly Greece and Cyprus have great interest in Irini’s focus on maritime surveillance to prevent Turkish supplies for the GNA. The fact that land and air routes are more difficult to monitor could enable Haftar's supporters, such as Egypt, Russia and the UAE, to continue to import weapons. Consequently, Sarraj, who is backed by the EU, disapproved of the new EU operation. Critics pushed the EU to pressure Haftar as the situation might otherwise further escalate and become worse.
While German foreign minister Heiko Mass emphasized his confidence that Irini’s contribution will lead to a better enforcement of the UN arms embargo, he condemned the ongoing escalation in Libya and reminded the involved parties about the agreed commitments of the Berlin conference. Other German politicians such as Omid Nouripour (Green Party) warned that Irini was at risk to only have a symbolic character and disadvantage the GNA. The German social democrat Gabriela Heinrich therefore called for further cooperation of the UN with the African Union (AU) to monitor the arms embargo via land and air routes. The AU itself however struggles in speaking with one voice as Libya’s neighboring countries have different interests in the conflict.
The deterioration of the state of affairs due to Covid-19
Since the outbreak of Covid-19, European governments have emphasized the importance of a halt of military actions in Libya. Notably, Malta has stressed the urgency of humanitarian aid of at least 100 million Euro to provide migrants in Libya with food, medical products and medical equipment. However, given Malta’s location at the EU’s external border making it a port of entry for migrants disembarking from vessels from North Africa, this may reflect Malta’s interests in keeping migrants off their territory. In this regard, former Maltese government official Neville Gafà admitted that migrants had been hindered to enter the Maltese search and rescue zone and coordinated pushbacks to Libya based on orders of Maltese Prime Minister Abela who justified these as rescue operations.
While the resolution (2019/2755(RSP)) of the European Parliament on a coordinated search and rescue approach failed, the majority of the members of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) in April 2020 have called for a halt of cooperating with the Libyan Coast Guard and its funding. However, given the relatively weak position of the EP in the EU’s foreign and security policy area, this call can only be of symbolic meaning as the EP could not enforce this resolution by itself. Also European Commission officials pointed out the competencies of member states in this area and the fact that there is little agreement on a common approach on organizing search and rescue.
While MEPs called for a stop of cooperation with the Libyan Coast Guard, the Global Legal Action Network (GLAN), the Association for Juridical Studies on Immigration (ASGI) and the Italian Recreational and Cultural Association (ARCI) have accused the EU of violating EU law by financing the Libyan Coast Guard. The complaint was preceded by an expert opinion from legal scholars questioning the legality of funding the Libyan Coast Guard. The opinion points out that public funds that are supposed to promote the development of countries are misused for migration control. In the same context, several NGOs have called the EU to stop its actions in Libya which result in the detention of migrants by Libyan authorities. While the EU did not comment on the accusation, a spokesperson for the European External Action Service claimed that EU projects in Libya provided migrants assistance and prevented their disembarkation due to the related dangers. The EU would also further encourage the Libyan authorities to close the detention centers.
In February 2021, 75 representatives of political, regional and tribal leaders elected a transitional government supervised by the UN in Geneva. The election of Prime Minister Abdul Hamid Dbeibah and a committee led by Mohammed Minfi, former ambassador to Greece, raises hope of a more stable future for Libya and the upcoming elections in December. Although a ceasefire was already agreed between the two conflict parties in October 2020, it was assessed extremely fragile. Despite support from European foreign ministers, a positive impact of the transitional government on migration remains unclear.
Since the previous Malta agreement from October 2019 had expired in spring 2020 due to Covid-19, member states must again find ad hoc solutions for distributing rescued migrants. The UNHCR has again called upon the EU for renewed efforts for reducing the loss of life at sea, conducting search and rescue at sea, greater intra-EU solidarity for burden sharing, and a predictable mechanism of disembarkation.
No Good Prospects
As illustrated in this paper the EU’s naval operations show how the EU has outsourced its responsibility for violations of international law over time. Particularly due to the inability of member states to find a common policy of burden sharing, states like Italy and Malta that are located at the EU’s external borders argue that they rely on the cooperation with the Libyan Coast Guard. The evolution of the EU operations’ mandates therefore show how much the EU depends on this cooperation to maintain its objective of preventing irregular migration. The most recent operation Irini indicates the shift away from any attempt of search and rescue, given its strategic positioning off the migration route in the Central Mediterranean.
Despite the success of the elected transitional government in Libya, it is unlikely that EU will find a sustainable solution to migration anytime soon. The continuous deadlock between member states contributes to the lack of effective measures to stop the ongoing fatalities in the Mediterranean.
1 The lack of legal pathways for many citizens from African countries to the EU results in irregular migration via the central Mediterranean.
2 The naval part of operation “Sophia” was officially suspended in March 2019, reporting however suggests that vessels already patrolled away from the supposed operational location by the end of 2018 based on Italian orders.