Documents considered by the Committee on 28 October 2015 - European Scrutiny Contents


1 European Union Military operation in the Southern Central Mediterranean

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; recommended for debate on the floor of the House (decision reported on 21 July 2015)[ 1]
Document details(a) Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med); (b) Council Decision to launch EUNAVFOR Med
Legal baseArticle 42(4) and Article 43(2) TEU; unanimity
DepartmentForeign and Commonwealth Office
Document Numbers (a) (36874), —; (b) (36938), —

Summary and Committee's conclusions

1.1 These draft Council Decisions proposed the establishment and launch of an EU military CSDP operation in the Mediterranean, to be called EUNAVFOR Med.

1.2 In his Explanatory Memorandum of 15 May 2015, the Minister for Europe (Mr David Lidington) described its objectives as:

"to capture and destroy smugglers' vessels before they can be used for human trafficking in response to the recent dramatic loss of life that has occurred in the Mediterranean off the coast of Libya."

1.3 The full background is set out in our previous Report.[ 2] In essence (as described by the Minister):

—  on 20 April 2015, the Foreign Affairs Council first considered the drastic loss of life in the Mediterranean and welcomed a ten point plan by the Commission as a basis of future work;

—  this included possible CSDP options, drawing on experience and lessons learned from the counter piracy operation Atalanta;

—  on 23 April an Extraordinary European Council met to consider future actions and agreed a number of actions, including:

·  "disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

·  "undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

·  "at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect."

—  on 18 May, Foreign and Defence Ministers agreed to establish the operation, appointing an Italian Operational Commander and Headquarters;

—  Foreign Affairs Ministers also agreed the Crisis Management Concept (CMC), which presented options for a possible CSDP mission to "disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture and destroy vessels and assets before they are used by smugglers".

1.4 The operation has four phases:

i)  a deployment and assessment phase;

ii)  an operational/seizure (of smuggled vessels) phase;

iii)   an operational/disruption phase; and

iv)  a mission withdrawal and completion plans.

1.5 The Minister said:

—  the Governments' overall approach was "to encourage the EU to develop a broad strategy for tackling illegal migration, which includes a focus on upstream options in source and transit countries";

—  within this, "a CSDP operation can offer an immediate short term contribution to providing an effective deterrent";

—  the Government would "continue to work closely to ensure the CSDP operation is fully integrated in the broader EU strategy";

—  the CSDP operation had been "sensibly designed in a phased manner, beginning with assessment and information sharing on smuggling networks";

—  all phases had been "designed to meet international legal and humanitarian obligations; and will be carried out in consultation with the Libyan authorities";

—  the Government had "been clear throughout the entire planning process that close monitoring of progress and assessment of impact on disruption of smuggling networks is crucial to the success of the operation";

—  the Political and Security Committee[ 3] would therefore need to give its authorisation to move between the phases;

—  for the operation to act as an effective deterrent and avoid only being called in to rescue migrants at sea, it needed to be able to:

"conduct activity, 'in the high seas in the Southern Central Mediterranean and, subject to an authorisation by the UN Security Council or consent by the coastal State concerned, the territorial or internal waters, territory or airspace of that State'. This is part of a phased approach and underpins the need for Libyan consent where we have been working with the EEAS. We are clear that the later phases of the operation would need a UN Security Council Resolution, with which Libyan consent would assist. Any operation would have limited effect in disrupting the business model of the smugglers without all of these options";

—  the Government was clear that it would agree to launch the operation only if "clear procedures for handling migrants and smugglers were in place, in the same manner as Op TRITON";

—  the Government had insisted on regular reviews on the effectiveness of this operation in the disruption of smuggling networks; and

—  renewal after the 12 month mandate would require consensus among the EU Member States.

Our assessment

1.6 Many questions arose. As far as EUNAVFOR Med was concerned, an analysis by the Royal United Services Institute, Five Reasons Why Militarising the EU Migration Plan Will Not Work, though carried out in mid-May, remained apposite. Its main points were:

—  unlike piracy, migration did not pose the sort of threat envisaged in chapter 7 of the UN Charter, and that there would thus a difficulty in finding an appropriate legal base;

—  successful anti-illegal migration operations in the Caribbean and Australasia were based on repatriation, which was not envisaged in the EU plan;

—  the EU plan addressed symptoms, not causes;

—  there was no internationally-recognised and domestically-accepted government in Libya; and

—  carrying out EUNAVFOR Med properly in such a large search area would require Member State governments to prioritise this above other national security issues and allocate scarce military resources accordingly.

1.7 Its conclusion was thus:

"There does not appear to be sufficient political appetite for this, indeed comments by Mogherini[ 4] herself indicate that there would be no repatriation of anyone who did not want to return. The political will just does not exist in Europe; neither can the hurdles be overcome easily. The outcome looks likely to be more of a Mare Nostrum plus (an expanded search and rescue operation), than a larger Operation Triton (migration interdiction). And that is not a long-term solution."[ 5]

1.8 In the first chapter of our previous Report, we dealt with the Commission's overarching Communication, A European Agenda on Migration, which included proposals to tackle the migration crisis in the Mediterranean. Here (as there) we recommended that these Council Decisions be debated on the floor of the House.

1.9 That debate notwithstanding, we asked the Minister to write to the Committee in six months' time with his assessment of the effectiveness of this operation in the disruption of smuggling networks; and bringing the Committee up to date on the overall context, including the political situation in Libya and EU efforts to deal with the migration crisis, and the Government's view on the right way forward at that juncture.

1.10 We also noted that the Minister suggested that the mission was under adequate political control by virtue of the PSC's involvement before there could be any move from one stage of the mission to the next. But Common Foreign and Security Policy (CFSP) control requires proper parliamentary scrutiny, especially of such a highly controversial operation. We therefore asked the Minister to write to the Committee before any such move was proposed for discussion in the PSC.

1.11 In the meantime, both Council Decisions were retained under scrutiny.[ 6]

1.12 The Minister has now provided a letter, dated 20 October, in which he notes that the PSC took the decision to move to the next phase of the Operation on 28 September (see "Background" for further details).

1.13 The EU's statement of 28 September said:

    "Following the political guidance provided by the defence and foreign affairs ministers at their informal meetings on 3 and 5 September, EU Ambassadors within the Political and Security Committee agreed to start the first step of the second phase of the operation as of 7 October 2015 and approved the corresponding rules of engagement.

    "The EU naval operation against human smugglers in the Mediterranean will be able to board, search, seize and divert vessels suspected of being used for human smuggling or trafficking on the high seas, in line with international law.

    "The Political and Security Committee also agreed that EUNAVFOR Med should be renamed 'Sophia' after the name given to the baby born on the ship of the operation which rescued her mother on 22 August 2015 off the coast of Libya.

    "Today's decision takes the EU naval operation from its intelligence-gathering phase to its operational and active phase against human smugglers on the high seas."

1.14 More information was provided in subsequent statements on 7 October and, following the adoption of the relevant UN Security Council Resolution, on 9 October. In sum:

—  the EU High Representative for Foreign Affairs and Security Policy (HR; Federica Mogherini) confirmed that EUNAVFOR MED-Operation Sophia moved to its second phase in international waters, "after having successfully fulfilled the objectives of phase 1 and contributed to rescue more than 3000 people", and will now be able to conduct boarding, search, seizure and diversion, on the high seas, of vessels suspected of being used for human smuggling or trafficking, and "contribute to bring suspected smugglers to justice"; and

—  EUNAVFOR MED-Operation Sophia's six naval units and seven air assets will be supplanted by three more naval vessels in the coming weeks (see "Background" for details of all the statements).

1.15 In June, the Council said that the second stage of the operation would provide for "the search and, if necessary, seizure of suspicious vessels"; that a third phase "would allow the disposal of vessels and related assets, preferably before use, and to apprehend traffickers and smugglers"; and that the Council would "assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned, and subsequent phases will be conducted accordingly" (see the first paragraph of "Background" for the full text). It would seem that the Council has now determined that a key element of the third phase — apprehension of traffickers and smugglers — shall be brought forward into the second phase. In the meantime, despite the best endeavours of the UN Secretary General's Special Representative, Bernardino Leon, of the HR[ 7] and of the Government, the political rivalries in the key coastal state — Libya — mean that it lacks the unified government required for further progress towards full implementation.[ 8]

1.16 Progress has also been hampered on the scrutiny front: the Minister apologises for an "oversight", says that he has "taken steps to try to ensure that an error of this kind does not reoccur" and undertakes to "do my utmost to ensure that in future you are notified in advance of a PSC decision to transition to the next phase". In brief, this is not good enough. We would like to know how so simple and straightforward a request was overlooked. And for him to explain why he cannot guarantee that it won't be overlooked next time.

1.17 In the meantime, we recommend that this chapter of our Report be added to the debate pack regarding the debate that we have already recommended on the migration crisis, including on EUNAVFOR MED-Operation Sophia.[ 9] Given that it is now over three months since our original recommendation, during which the crisis has significantly worsened, it is imperative that this debate is arranged in the very near future.

1.18 In the meantime, we shall retain the Council Decisions under scrutiny.

Full details of the documents: Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med): (36874), —; (b) Council Decision launching the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED): (36938), —.

Background

1.19 On 22 June, the Council issued the following statement:

    "Today, the Council launched the EU naval operation against human smugglers and traffickers in the Mediterranean called "EUNAVFOR Med". Its mission is to identify, capture and dispose of vessels and enabling assets used or suspected of being used by migrant smugglers or traffickers.

    "EU High Representative for Foreign Affairs and Security Policy Federica Mogherini said:

    'EU has never taken the issue of migration as seriously as we are doing now. With this operation, we are targeting the business model of those who benefit from the misery of migrants. But it's only a part of a broader strategy including the cooperation with our partners in Africa, particularly in the Sahel region, and the work with the International Organization for Migration and the UNHCR. As EU, we are determined to contribute to save lives, dismantle the networks of the smugglers of human beings and address the root causes of migration'."

"EUNAVOR Med will be conducted in sequential phases, in full compliance with international law, including humanitarian and refugee law and human rights. The first phase focuses on surveillance and assessment of human smuggling and trafficking networks in the Southern Central Mediterranean.

    "It is planned that the second stage of the operation provides for the search and, if necessary, seizure of suspicious vessels. A third phase would allow the disposal of vessels and related assets, preferably before use, and to apprehend traffickers and smugglers.

    "The Council will assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned, and subsequent phases will be conducted accordingly.

    "The Operation Headquarter of EUNAVFOR Med is in Rome. Rear Admiral Enrico Credendino has been appointed Operation Commander and will be assisted at sea by Force Commander Rear Admiral Andrea Gueglio. The common costs of the operation are estimated at €11.82 million for a two months start-up phase and the initial mandate of 12 months.

    "EUNAVFOR Med, established on 18 May 2015, is one element of the broader EU comprehensive approach to migration which aims to respond to the immediate need to save lives and address emergency situations, tackle the root causes of irregular migration and fight traffickers."[ 10]

1.20 On 23 June, The Times reported that the Royal Navy's flagship, HMS Bulwark, is to be replaced by HMS Enterprise, a survey ship, as part of a fleet led by the Italian carrier Cavour and including two submarines, three surveillance aircraft, two drones and two helicopters. Five British officials will be at the Rome HQ running the operation. A Downing Street spokeswoman was quoted as saying that GCHQ would be working as part of this operation, "building a better picture of the smuggling and trafficking gangs", and that officers from the National Crime Agency would join an "intelligence fusion cell" in Sicily. "British defence sources" were reported as having said that:

    "the Enterprise's radars and ability to sail in shallow waters would make it ideal to build up intelligence about traffickers — which will be its first task while talks about securing a UN mandate for military action in Libyan territory is secured."

1.21 "Planners in Brussels" were also said to have

    "discussed destroying fuel dumps in Libya and mounting commando raids to sink boats before they can be loaded with migrants, but Federica Mogherini, the EU foreign policy chief, said military intervention would occur in a later stage of the mission."

1.22 The report noted that:

    "Even if a deal is reached, planners may struggle to identify and capture the wooden boats, which are used by fishermen until they are loaded with migrants."

1.23 On 14 September 2015, the EU issued the following statement:

"The Council adopted a positive assessment that the conditions to move to the first step of phase two on the high seas of EUNAVFOR MED have been met, the naval operation having fulfilled all military objectives related to phase 1 focusing upon the collection and analysis of information and intelligence.

"This assessment is part of the formal steps required in the process of transitioning the operation to phase 2 on the high seas and will be followed soon by a force generation conference and approval of rules of engagement for phase 2 on the high seas. Once these rules are agreed and the Operation Commander indicates that he has the required assets, the EU Ambassadors within the Political and Security Committee will decide when to launch the first step of phase 2.

"This important transition will enable the EU naval operation against human smugglers and traffickers in the Mediterranean to conduct boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human smuggling or trafficking, within international law."[ 11]

1.24 On 28 September 2015, the EU issued the following further statement:

"Following the political guidance provided by the defence and foreign affairs ministers at their informal meetings on 3 and 5 September, EU Ambassadors within the Political and Security Committee agreed to start the first step of the second phase of the operation as of 7 October 2015 and approved the corresponding rules of engagement.

"The EU naval operation against human smugglers in the Mediterranean will be able to board, search, seize and divert vessels suspected of being used for human smuggling or trafficking on the high seas, in line with international law.

"The Political and Security Committee also agreed that EUNAVFOR Med should be renamed 'Sophia' after the name given to the baby born on the ship of the operation which rescued her mother on 22 August 2015 off the coast of Libya.

"Today's decision takes the EU naval operation from its intelligence-gathering phase to its operational and active phase against human smugglers on the high seas. The European Union has proven its capacity to act in a swift and united manner. We are also united in our diplomatic efforts to find both a political solution to the crises in Syria and Libya, and, in partnership with the countries of origin and transit of the migration flows, to support the economic and social development of these countries.

"The new name of the operation will be formally adopted by the Council at the earliest opportunity.

"The decision by the Political and Security Committee to launch the first step of phase 2 of the operation follows an assessment by the Council on 14 September that the conditions to move to this stage have been met.

"The Operation Commander Rear Admiral Credendino has judged the transition possible as member states provided the assets needed for this more active phase in the force generation conference of 16 September 2015.

"The operation is aimed at disrupting the business model of human smuggling and trafficking networks in the Mediterranean and to prevent the further loss of life at sea. It is part of a wider EU comprehensive approach to migration, tackling both the symptoms and root causes such as conflict, poverty, climate change and persecution."[ 12]

1.25 The EU then issued this further statement on 7 October:

"Today, as agreed by the EU Ambassadors within the Political and Security Committee on September 28, the EU naval operation against human smugglers and traffickers in the Mediterranean, "EUNAVFOR MED — OPERATION SOPHIA", moved to phase 2 in International Waters.

"After having achieved all the objectives of the first phase in terms of intelligence gathering, training and deployment, the Operation Commander, Admiral Enrico Credendino, stated the Force's readiness for next stage.

"During the second phase, the EUNAVFOR MED — OPERATION SOPHIA assets will conduct boarding, search, seizure and diversion, on the high seas, of vessels suspected of being used for human smuggling or trafficking.

"In order to accomplish this highly operative part of the mission, the member States agreed to enhance the Force by deploying more assets at sea.

"At the moment EUNAVFOR MED — OPERATION SOPHIA can count on 6 naval units (the Italian flagship "Cavour", 2 German, 1 UK, 1 French and 1 Spanish warships) and 7 air assets among planes and Helicopters. 3 more vessels will join the naval Force in the Area of Operation in few weeks. 

"In its first phase, launched on 22 June 2015, EUNAVFOR MED — OPERATION SOPHIA SOPHIA patrolled on the high seas gathering information detecting and monitoring the smuggling networks. Nevertheless, the ships contributed to save more than 3000 migrant's lives performing several rescues at sea and, following our activities, 16 suspected smugglers and traffickers have been arrested by the Italian authorities. 

"EUNAVFOR MED, established on 18 May 2015, is part of a wider EU's comprehensive approach to migration, tackling both current symptoms and root causes such as conflict, poverty, climate change and persecution."[ 13]

1.26 On 9 October 2015, HR/VP Federica Mogherini made the following statement on the vote of UN resolution 2240 on the EU's naval operation in the Mediterranean:

"Today's adoption by the UN Security Council of UN Resolution 2240 to combat the recent proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean Sea on the high seas represents an important political endorsement by the international community of EUNAVFOR MED — Operation Sophia and its goals.

"Two days ago, EUNAVFOR MED — Operation Sophia moved to its second phase in international waters, after having successfully fulfilled the objectives of phase 1 and contributed to rescue more than 3000 people. It will now be able to conduct boarding, search, seizure and diversion, on the high seas, of vessels suspected of being used for human smuggling or trafficking, and will contribute to bring suspected smugglers to justice.

"Since its launch, the EU naval operation in the Mediterranean has been conducted in regular contact with the UN and within the international law. I briefed the UN Security Council on the preparation of the operation, back in May, and found a very high level of common understanding about the need to act quickly and in partnership against human smugglers.

"We will continue to closely cooperate with the UN and the countries involved, to ensure a continued success of EUNAVFOR MED — Operation Sophia."[ 14]

The Minister's letter of 20 October 2015

1.27 The Minister begins his letter thus:

"I apologise that I did not write to you prior to the transition between phases as you had requested in your report of 21 July. This was an oversight for which I am sorry. I have taken steps to try to ensure that an error of this kind does not reoccur. Please be assured of my commitment to keep the committee updated. I will do my utmost to ensure that in future you are notified in advance of a PSC decision to transition to the next phase."

1.28 Then, referring to the Council Decisions establishing and launching the operation, the Minister continues thus:

    "The Committee will be aware that the PSC retains control over transitions between phases. The PSC took this decision on 28 September.

    "In terms of how the PSC arrived at this decision point, the Operation Commander (OpCdr), Rear Admiral Enrico Credendino, briefed PSC on 27 August on Phase 1 progress and declared military readiness to move to Phase 2. A further PSC discussion on 8 September began to prepare a document to form the basis of a Council assessment for this move, pending EU Military Committee advice. On 14 September the General Affairs Council agreed that the necessary conditions for transition had been met. The PSC visited EUNAVFOR Med on 25 September for a series of briefings by the OpCdr and the Force Commander on the information that the operation had gathered on the smugglers and their networks, and the preparations for Phase 2 (High Seas). None of these meetings generated any Council Decisions.

    "On 28 September the PSC formally agreed to transition to Phase 2 (High Seas), with operations beginning on 7 October. This will now allow the operation to interdict and seize smugglers' vessels on the High Seas. This will give assets involved in the operation the opportunity to detain a number of smugglers and their vessels, as well as achieve a wider deterrent effect. The UK has offered HMS Richmond with a Lynx helicopter, a ScanEagle UAV and a Royal Marines boarding team, in addition to HMS Enterprise which will continue to operate in its current information-gathering capacity.

    "The UK has led significant diplomatic effort in New York to secure a UN Security Council Resolution (UNSCR) for Phase 2 (High Seas). This would allow all contributing Member States to participate fully in the operation, to board and seize smuggling vessels and detain the smugglers. I am pleased to confirm that Resolution 2240 was adopted on 9 October.

    "We continue to assess that Phase 3 is the key phase of the operation and where the greatest impact will be achieved. Phase 3 would include operations to disrupt smuggling networks within Libyan Territorial Waters, and on the coast, through deliberate targeting, seizure and possible destruction of vessels and assets. We are clear that this would require close cooperation with the Libyans, and a further UNSCR. The Foreign Secretary is in regular contact with the Libyan parties and High Representative Federica Mogherini accordingly.

    "Our overall approach remains to encourage the EU to develop a broad strategy for tackling illegal migration, which includes a focus on upstream options in source and transit countries. Within this broad strategy, this CSDP operation can offer an immediate short-term contribution to providing an effective deterrent. We will continue to work closely to ensure the CSDP operation is fully integrated in the broader EU strategy, which focuses on addressing the causes of this problem and not only its consequences. Without improvement in the situation in Syria and indeed in Iraq, millions will continue to face no choice but to flee their homes. The UK is committed to continuing to work with EU and international partners towards resolution of the conflict. Moreover, tackling migration from Africa upstream is a high priority. The Valletta Summit on 12/13 November is a valuable opportunity to send a clear message of Europe and Africa's shared commitment to act. We need African countries to agree to cooperate with us on: tackling the drivers of migration — including conflict, climate change and economic insecurity; enhancing protection of refugees in transit countries; strengthening law-enforcement and judicial capacities to fight trafficking/smuggling networks; and increasing returns

Previous Committee Reports

HC 342-ii (2015-16), chapter 2 (21 July 2015).


1   See Second Report HC 342-ii (2015-16), chapters 1-3 (21 July 2015). Back

2   See Second Report HC 342-ii (2015-16), chapter 2 (21 July 2015). Back

3   Political and Security Committee (PSC). Back

4   EU High Representative for Foreign Affairs and Security Policy (HR; Federica Mogherini). Back

5   See Five Reasons Why Militarising the EU Migration Plan Will Not Work. Also see The Times report of 23 June 2015 at the end of this chapter. Back

6   Second Report HC 342-ii (2015-16), chapter 2 (21 July 2015). Back

7   See "Federica Mogherini speaks with the Libyan Prime Minister Designate Fayez Al Sarraj" Back

8   See MPs from Libya's rival parliaments have expressed doubts about a UN proposal for a national unity government, saying the announcement was premature from the BBC. Back

9   See Second Report HC 342-ii, chapters 1-3, (21 July 2015). Back

10   See statement. Back

11   See statement. Back

12   See statement. Back

13   See "EUNAVFOR MED - OPERATION SOPHIA enters Phase 2". Back

14   See statement. For full information on the operation, see EUNAVFOR MED - Operation Sophia. Back


 
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Prepared 6 November 2015