Chapter 4: Considerations for the next phases
The next phases
69.The ability of Operation Sophia to move to Phases 2B and 3 will be critical to the overall success of mission. Mr Lindsay confirmed that “the most important parts of the operation are Phase 2B and Phase 3”.96 Lieutenant General Wosolsobe agreed that Phases 2B and 3 were “likely to result in an outcome that better reflects the desired end state of the operation”, of “disrupting and dismantling the trafficking networks.”97
70.Vice Admiral Clive Johnstone CB CBE, Royal Navy Commander, Allied Maritime Command, NATO, counselled patience: it was “worth considering that activities of this kind often take years to mature.” He compared the mission with Operation Atalanta, the EU’s anti-piracy mission off the coast of Somalia. NATO and the EU began their missions in the Horn of Africa in late 2008, but it was not until 2010–12 “that the international counter-piracy stakeholders developed the tactics and procedures that maximized effectiveness”.98
71.On the other hand, we note that tackling piracy and human smuggling networks are very different tasks. To combat piracy, military assets are used to protect ships from capture, but there is no clear defensive line that can be taken against smuggling networks, which use their own vessels and can profit regardless of whether the boats successfully reach Europe. Mr Roberts was hesitant about the merits of drawing lessons from Operation Atalanta: the EU Military Committee (EUMC), in designing Operation Sophia from “the understanding they had gained from conducting anti-piracy operations”, had designed a plan that was “the wrong shape of hammer.”99
The Libyan political context
72.Operation Sophia’s current mandate—UNSCR 2240 (2015)—does not allow it to be deployed in Libyan territorial waters. For this to happen, the mission would need both an invitation from the Government of National Accord (GNA)—as the sole legitimate government in Libya—and a further UNSC mandate.100 Phase 3 would also require a further mandate and Libyan consent.
73.Mr Lindsay explained that the ability to move to Phase 2B and 3 “has been constrained by our inability to work with a government in Libya, because there has been none.”101 Having a partner in Libya would change “the whole dynamic” of what the operation could achieve.102
74.Mr Lindsay drew an explicit connection between the flow of migrants and a weak Libyan government. The EU needed “governments on the shores with whom [it could] work, who have the right incentives to break the business model of smugglers and do not allow this illegal activity to take place unchecked”. The absence of such governments was “why the central Mediterranean route opened in such large numbers over the last couple of years.”103 Similarly, in the course of a one-off evidence session on Libya in July 2015, Professor George Joffé told us that “the old smuggling networks that existed across the Sahara now exist with no constraint or restraint of any kind at all.”104
75.A political agreement between the House of Representatives in Tobruk and the General National Congress, based in Tripoli, was reached in December 2015, and in March 2016, the GNA was “established and recognised.” 105 While this was a positive step, Mr Kingsley noted that “both the rebel government in Tripoli and the formally official government in Tobruk have not recognised the third Government of National Accord.”106
76.In April 2016 the Rt Hon Philip Hammond MP, Secretary of State for Foreign and Commonwealth Affairs, visited Libya to meet the new Prime Minister of the GNA, Fayez al Serraj. Mr Hammond announced the UK’s support for the GNA and pledged £10 million in assistance, which included £1.5 million “for tackling illegal migration, smuggling and organised crime”.107
77.While Mr al Serraj has the support of the international community and key Libyan institutions, including the central bank and the national oil company,108 the situation remains uncertain. At the time of writing, neither the Islamist government in Tripoli nor the powerful General Khalifa Haftar, who leads the Operation Dignity forces,109 had declared in support of Mr al Serraj.
78.Nor is it clear that a newly formed Libyan government would be a co-operative ally. Mr Lindsay explained that once a GNA was in place, tackling migration “will not be their very top priority”.110 Mr Kingsley added that the idea that the new government’s “first action would be to invite western powers in—and thus underline the fact that they are the puppet government that their critics claim they are—seems very far-fetched.”111 Professor Joffé had already told us in July 2015 that the EU’s plan to deal with migration from Libya was “seen by many in Libya … to be an overt threat.”112
79.Phase 2B would not necessarily require a fully functioning Libyan government, but would require an internationally recognised one. On the other hand, in the medium to long term, a functioning Libyan state would be necessary for the mission to proceed onshore (Phase 3). To create the security conditions in which an EU mission could act, to secure Libyan borders, to structure the necessary judicial procedures, and to prevent smugglers acting with impunity throughout Libya, would all require more than a ‘government in name’.
Judicial process in Libyan territorial waters
80.The Council Decision is silent on what should happen to smugglers and traffickers once they have been apprehended in Libyan waters. Two options are possible: the Libyan authorities could waive their right to prosecute suspected smugglers, and allow them to be prosecuted in an EU Member State, or the suspected smugglers could be transferred to the Libyan authorities. In either case, a new legal basis would be required.
81.The Meijers Committee, a standing committee of experts on international immigration, refugee and criminal law (based in the Netherlands), advised that in the case of Operation Sophia, as the EU is not party to an armed conflict, normal peace time law applies:
“This means that after arrest, those suspected of migrant smuggling should be brought promptly before a judge. In the case of subsequent criminal prosecution, jurisdiction should be established in one of the [EU] Member States … If smugglers are to be extradited or released to third countries, their fundamental rights should be guaranteed.”113
In this regard, we note the problems posed by Libya’s instability and lack of judicial infrastructure.
82.On 18 March, it was reported that the Prime Minister had suggested that Operation Sophia should be expanded so that—in conjunction with the Libyan coastguard—boats could be sent back to Libya.114 Dr Roberts and Mr Symonds viewed such a proposal with grave concern: “Forcing people … back to Libya … would merely expose many already severely abused people back into the hands of those who have abused them”. This would present “smugglers with a further opportunity to exploit these same people for more money”. Both Dr Roberts and Mr Symonds said that returning asylum-seekers to Libya would also undermine the right to asylum enshrined in Article 14 of the Universal Declaration of Human Rights.115
Co-ordination with other actors: Frontex and NATO
83.NATO and Frontex also have missions relating to irregular migration, in the Aegean and Mediterranean respectively. Figure 2 illustrates the geographical extent of the various operations against migrant smuggling in the Mediterranean. Lieutenant General Wosolsobe advised against any extension of Operation Sophia’s area of operation, which could result in “duplication of efforts, with the consequent impact on resources and increased potential for complication.”116
Figure 2: Naval operations to combat irregular migration on the EU’s borders
Frontex—Operation Triton
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Operation Triton was launched in November 2014 by Frontex. It acts in the sea south of Sicily and the Pelagic islands, as well as the coastal areas around Calabria, southern Italy. Operation Triton co-ordinates the deployment of the assets of 26 Member States, which include two fixed wing surveillance aircraft, three patrol vessels, two coastal patrol vessels, two coastal boats and one helicopter. Five debriefing teams support the Italian authorities in collecting intelligence on the people-smuggling networks operating in origin and transit countries, alongside two screening teams. The 2015 budget for Operation Triton was €37, 420, 000.117 Between the launch of the Triton operation on 1 November 2014 and January 2015, the participating authorities dealt with 130 incidents, of which 109 were search and rescue cases. 16,402 people were detected, including 15,325 persons found on boats in distress. In addition, 57 facilitators were arrested. |
Source: Frontex, ‘ Joint Operation EPN Triton’: http://frontex.europa.eu/operations/archive-of-operations/djhlpB and European Commission, ‘Questions and Answers: Smuggling of Migrants in Europe and the EU response’: http://europa.eu/rapid/press-release_MEMO-15-3261_en.htm
84.Lieutenant General Wosolsobe viewed the work of Frontex and Operation Sophia as “complementary, rather than as duplication and competition.”118 A “great deal of effort” was “going into mutual support, interaction, information sharing and exchange of experience by means of the developed lessons processes.”119 In 2015, Frontex was satisfied that there was “an effective co-operation structure and information flow” between Operation Triton and Operation Sophia, to ensure that the missions “deliver the expected EU value and are fully co-ordinated”.120
85.We considered what value a CSDP operation, as opposed to a Frontex mission, added in the case of the central Mediterranean route. Mr Lindsay explained that a CSDP operation had the “military tools, which Frontex does not, to tackle the smuggling networks”.121 Mr Lindsay also referred to the sophisticated ISR capacities of Operation Sophia.122 Furthermore, Operation Sophia has a wider remit: it is tasked with boarding, searching, seizing and destroying boats and apprehending smugglers. In Triton’s operational plan, it is clearly stated that the vessels co-ordinated by Frontex, unlike the assets of Operation Sophia, cannot destroy any boats. The apprehended boats are usually towed to shore, where the national authorities or host Member States can destroy them in port.123
NATO mission in the Aegean
Box 2: NATO mission in the Aegean
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In early February 2016, a new NATO mission was launched in the Aegean Sea. NATO warships have been tasked to conduct “reconnaissance, monitoring and surveillance of illegal crossings in the Aegean Sea.” NATO is acting in the international and territorial waters of the Aegean Sea, surrounding the Greek islands adjacent to Turkey. Ships were initially deployed around the island of Lesbos and have since expanded to the south. The lead nation is Germany. The mission deploys the assets of Standing NATO Maritime Group 2 (SNMG2), which consist of seven vessels from Canada, France, Germany, Greece, Turkey and the UK. The NATO Aegean mission has agreed that Greek and Turkish warships will not operate in each other’s territorial waters. Any migrants rescued by NATO will be transported to Turkey, rather than to the EU.124 |
Source: Written evidence from Vice Admiral Clive Johnstone (ENF0004)
86.Mr Lindsay told us that Operation Sophia and NATO’s Aegean mission had “very different theatres and very different activities.”125 While Operation Sophia had its own capabilities and was trying to tackle the smuggling networks, NATO’s goal was “to find the intelligence to cue” the Turkish and Greek coastguards and EU Frontex assets, “to be able to intercept the migrant boats and bring them back onshore into Turkey.”126
87.Furthermore, NATO has a more restricted mandate, and has not been tasked with boarding, searching, seizing and destroying boats or apprehending smugglers. Admiral Johnstone stressed that “NATO has no mandate to interdict or turn away migrant boats.”127
88.The EU and NATO are co-ordinating their activities and sharing information informally. Mr Lindsay told us that the UK Government was “pushing hard to get NATO-EU co-ordination” between the operations.128 Vice Admiral Johnstone set out the informal linkages that had been established: the two Maritime Operations Centres were in regular communication and Flag Officers have visited each other, and received operational updates and briefings. There was, however, no “formal intelligence sharing arrangement” between NATO and Operation Sophia.129
89.At the moment, as the two missions are acting in different theatres and have different mandates, Vice Admiral Johnstone was “content that the level of deconfliction and co-ordination we have achieved is adequate to our respective requirements”; he noted that this could change if Operation Sophia were extended beyond Phase 2A.130 Similarly, Lieutenant General Wosolsobe said he “would not exclude that there might be a need for more intensive exchange of information”, as the NATO mission developed.131
90.Unlike NATO or Frontex missions, EU military operations cannot be staffed by double-hatted assets.132 Some EU Member States are, therefore, resourcing multiple, distinct missions. There are also gaps in the resources available. Lieutenant General Wosolsobe noted that the EU mission was in need of “increased capability in ISR [Intelligence, Surveillance and Reconnaissance] and in force protection.” On the other hand, Vice Admiral Johnstone informed us that, as European naval powers led both the EU and NATO missions, there was “little difference in ISR capabilities … The issue of access to those capabilities turns on national prioritisation.”133
91.Although the two missions are indeed discrete, they both take aim at the smuggling networks based on the Middle Eastern and North African shores. There is, therefore, an overlap in the intelligence required. We therefore considered the possibility for deeper co-operation between the EU and NATO missions in this sphere.
92.Vice Admiral Johnstone noted that NATO had some autonomous assets beyond those available to EU CSDP missions, including “extensive command and control, communications and intelligence capabilities”, and the “autonomous Air-Ground surveillance capability” that it was building. He believed that the prospect for “mutual support” between the EU and NATO did arise in the central Mediterranean, but was limited by the current “intensive tasking” of NATO assets that are deployed in multiple missions in the Mediterranean, including counter-terrorism. Vice Admiral Johnstone added an important caveat: “certain Allied national positions on EU-NATO co-operation … limit the scope for such support.”134
Relations with NGOs
93.Lieutenant General Wosolsobe told us that migrants appeared to be “receiving guidance and instructions on how to avoid giving information” about smuggling networks. There was evidence of “at least one of the NGOs that are operating in the area” adopting such an approach.135 He suggested the motivation of that NGO might be to “try to protect migrants from measures that might be taken by smugglers against new migrants who are still on the shores.”136
94.Both Mr Roberts and Mr Kingsley pointed out that humanitarian organisations could have serious doubts about co-operating with a military mission, the primary purpose of which was not to save lives.137 Mr Roberts said that a humanitarian organisation was “less likely to be open with the military than it is with a constabulary force, or indeed a political one.”138
95.Dr Roberts had “never heard of NGOs advising refugees and migrants not to provide information.” On the other hand, she would “not be at all surprised if smugglers were telling refugees and migrants not to provide information.” Her experience of those planning a journey or en route was that they were “very afraid of providing any information to any authorities”, believing that this “would lead to their being returned to a country that cannot care for them.”139 Mr Symonds said there had also been reports of volunteers and NGOs “feeling deterred from undertaking an effort to rescue a boat … or being intimidated in their work by the authorities clearly seeking to deter their activity.”140
A further step: supporting the Libyan coastguard?
96.Supporting the Libyan coastguard has been suggested as a potential additional activity for the EU.141 On 18 April, in response to the arrival of the new Prime Minister, Mr al Serraj, into Tripoli, the European Council confirmed that the EU stood ready to offer Libya assistance with security sector reform, and that further consideration would also be given to support Operation Sophia “for example through potential capacity building for the Libyan coastguard”.142
97.Mr Lindsay was “waiting to see a proper proposal” on capacity building for the Libyan coastguard and navy, but it sounded like “something that [the UK] could consider in a positive light”.143
98.Mr Roberts offered us an insight into the scale of the task: “the captain of the only Libyan coastguard vessel that operates out of Tripoli is a fisherman who owns a restaurant; that is his main job.” Tribal factionalism was manifest: “the headquarters of the coastguard in Tripoli cannot and will not communicate with its subordinate units in the east of the country because they are from a different faction.”144 According to the Financial Times, the Libyan coastguard relies on a “fleet of a dozen or so small inflatable craft with limited room for passengers and a recommended range of no more than five nautical miles”.145
99.Wider border assistance might also be reconsidered, should the security situation in Libya improve. The EU deployed a Border Assistance Mission (EUBAM Libya) in May 2013, with the aim of supporting the Libyan authorities in their efforts to improve the security of the country’s borders. In August 2014, thanks to insecurity in the country, the mission was moved to Tunisia. With limited capacity, the mission has continued to support the Libyan navy, customs and coastguard through workshops and seminars organised outside Libya.146 On 19 January 2016 the Political and Security Committee of the EU agreed a revised mandate for EUBAM Libya, to provide civilian planning expertise “with a view to the mission potentially evolving into a civilian capacity building and assistance mission”.147
Conclusions and recommendations
100.While Operation Sophia plays a role in gathering intelligence and in search and rescue, this is not sufficient to justify a Common Security and Defence Policy mission. Given appropriate political support in Libya—however unlikely that may be—it could, potentially, play a more useful role if able to operate in Libyan waters (Phase 2B) and onshore in Libya (Phase 3). In order to keep this possibility open, we recommend that the Member States should review and renew the mandate in summer 2016.
101.Libya has become a springboard for irregular migration to Europe. Libyan state weakness has been a key factor underlying the exceptional rate of irregular migration on the central Mediterranean route in recent years.
102.A Libyan government that is recognised internationally and accepted internally is a prerequisite to the future success of the mission. Should it become evident that the necessary conditions in Libya will not be forthcoming, and that Operation Sophia will be unable to proceed beyond its current phase, Member States should reconsider the concept of the mission. Member States may have to limit their activities to a search and rescue mission, while acknowledging the risks inherent in such an approach.
103.It is vital that Operation Sophia should be protected by the necessary legal foundations. In particular, a clear legal framework for prosecuting smugglers apprehended in Libyan territorial waters must be considered and resolved before Phase 2B begins, to avoid the possibility of a damaging legal challenge.
104.Member States’ naval assets are stretched between three distinct missions in the Mediterranean and Aegean aimed at stemming irregular migration. We recommend that every effort should be made to deepen co-operation between the missions, especially in intelligence sharing.
105.Member States should be prepared for the unintended consequences of their efforts to stem irregular migration in the central Mediterranean, in particular the displacement of migrants to other sea routes and a possible evolution of the business model of smuggling.
100 While it would be theoretically possible for the mission to proceed to act in Libyan territorial waters with only a UNSCR, both China and Russia—two permanent members of the UNSC—have stated that a Libyan invitation would be required by them in order to authorise a UNSC resolution.
107 Foreign and Commonwealth Office, ‘Philip Hammond visits Tripoli to support new Libyan Government’ (18 April 2016): https://www.gov.uk/government/news/philip-hammond-visits-tripoli-to-support-new-libyan-government [accessed 20 April 2016]
108 ‘Libya’s new government’, The Economist, 9-15 April 2016
109 Operation Dignity was launched by former Libyan army general Khalifa Haftar in May 2014, against Islamist militants in Benghazi and the east of Libya. In March 2015 Libya’s House of Representatives appointed him commander of the Libyan National Army.
113 ‘Military action against human smugglers: legal questions concerning the EUNAVFOR Med operation’, Meijers Committee, 23 September 2015: http://www.commissie-meijers.nl/sites/all/files/cm1513_-_legal_questions_on_eunavfor_med.pdf [accessed 25 April 2016]
114 Rowena Mason and Patrick Kingsley, ‘David Cameron: send more patrol shops to turn refugee boats back to Libya’, The Guardian (18 March 2016): http://www.theguardian.com/world/2016/mar/18/refugee-boats-david-cameron-early-intervention-libya-migrants-mediterranean-eu-leaders [accessed 4 April 2016]
117 The realisation period for this budget was 1 February 2015 to 31 December 2015.
120 Written evidence submitted to the EU Home Affairs Sub-Committee on 31 August 2015 (Session 2015–16), PMS0009 (Frontex)
123 Oral evidence taken before the EU Home Affairs Sub-Committee, 16 September 2015 (Session 2015–16), Q 70 (Fabrice Leggeri)
124 NATO, ‘NATO Secretary General welcomes expansion of NATO deployment in the Aegean Sea’ (6 March 2016): http://nato.int/cps/en/natohq/news_128833.htm [accessed 25 April 2016]
125 Q 62 We also note that NATO’s ability to work in Turkish territorial waters—an origin point of migrant flows—is a key advantage NATO has compared to Operation Sophia (in Phases 1 and 2A).
132 Q 25 Double-hatting allows military assets to be available to more than one command structure (such as NATO and the EU) at the same time.
134 Written evidence from Vice Admiral Clive Johnstone (ENF0004). The ‘participation problem’ caused by the Turkish-Cypriot bilateral disagreement has reduced the scope of effective cooperation between the EU and NATO.
141 Patrick Wintour, ‘Libya offered security help by European Union’, The Guardian (19 April 2016): http://www.theguardian.com/world/2016/apr/19/libya-offered-security-help-by-european-union-fayez-seraj [accessed 21 April 2016]
142 Council conclusions on Libya, 18 April 2016: http://www.consilium.europa.eu/en/press/press-releases/2016/04/18-fac-libya-conclusions/ [accessed 21 April 2016]
145 Borzou Daraghi, ‘Embattled Libyan coastguard struggles to stop migrants’, Financial Times (15 May 2015): available at http://www.ft.com/cms/s/0/2c9f22c0-f949-11e4-be7b-00144feab7de.html#axzz43kEl7qCd [accessed 5 April 2016]
146 European External Action Service, EU Border Assistance Mission in Libya (EUBAM Libya) (January 2015): http://eeas.europa.eu/csdp/missions-and-operations/eubam-libya/pdf/factsheet_eubam_libya_en.pdf [accessed 25 April 2016]
147 Letter from David Lidington MP to Lord Boswell of Aynho, (27 January 2016)