A plan for EU Member States to capture or destroy the boats used by people smugglers in the Mediterranean is one of ten possible courses of action that will be considered during the Extraordinary European Council Meeting on the Situation in the Mediterranean that will be held on 23 April.
The boat destruction proposal should be rejected for multiple reasons. There is no basis in law for the proposal and it would endanger lives of innocent people including migrants and fishermen, among others. It would certainly have little effect on its intended target, the people smugglers.
EU migration commissioner Avramopoulos described the plan, which has been recommended by the Foreign Affairs Council which met on 20 April, as a civil-military operation which would “capture and destroy vessels used by smugglers.” Avramopoulos reportedly compared the proposed EU boat destruction plan to Operation ATALANTA, the EU’s maritime operation against piracy off Somalia, saying that Atalanta “should inspire us for new operations against smugglers in the Mediterranean.”
As is always the case, the specific details of the proposed plan matter. There are situations where the destruction of a migrant boat under certain circumstances may be perfectly legal and otherwise appropriate. For example after a rescue operation when migrants have been safely removed from an unflagged and unseaworthy vessel, it may be appropriate for that vessel to be destroyed at sea rather than taking it in tow or leaving it adrift and thereby creating a navigational hazard. In such circumstances, there is no reason for an EU coast guard vessel, after migrants have been transferred from a migrant boat, to stand by and allow smugglers to take possession of the now empty migrant boat.
But if the EU boat destruction plan were to authorise the use of armed force to capture or destroy a smuggling boat at sea, particularly in the face of armed resistance from people smugglers, or if it were to authorise the destruction of boats at anchor in Libyan harbours, it is difficult to imagine how such a plan could be carried without endangering the lives of migrants and fisherman and thereby violating international humanitarian and human rights law.
Frontex and Italian patrol boats have already experienced armed threats at sea during rescue operations. One situation occurred on 13 April when armed people smugglers fired into the air to recover an empty migrant boat after an Italian tugboat and the Icelandic Coast Guard vessel Týr deployed by Frontex had rescued a group of migrants. The Frontex vessel did not engage the people smugglers with force and allowed the smugglers to return to Libya with the empty migrant boat. If Frontex vessels or coast guard vessels were now to be called upon to use some level of appropriate force to prevent such incidents, rescue operations would be delayed, further complicated, and the rescued migrants would be placed in danger.
In regard to the possible destruction of boats at anchor in a Libyan harbour, the EU cannot engage in the proposed civil-military operation without having a legal basis to do so. One possible source of authority would be the invocation of Chapter VII of the UN Charter by the UN Security Council, but this would require the finding that the flow of migrant boats constitutes a threat to international peace and security. While the security situation in Libya or Syria might well constitute such a threat, the large scale movement of migrants by people smugglers does not.
Chapter VII has of course been invoked to authorise the EU Operation ATALANTA after the Security Council authorised of the use of force off Somalia in international waters and in Somalian territorial waters (as well as within Somalian territory). But the legal basis for Operation ATALANTA has no relevance to the proposed EU boat destruction plan. The suppression of piracy in international waters is authorised and governed by specialized international law and customary international practice relating to the suppression of piracy. There is no equivalent basis in international law for the suppression of people smuggling.
Chapter VII was likewise invoked in 2011 to authorise the use of force by NATO in Libya. The Security Council again made the necessary determination that the situation in Libya at the time was a threat to international peace. Among the factors referenced by the Security Council in Resolution 1973 was the plight of refugees and foreign workers who were subject to violence and who were forced to flee Libya. The resolution praised Tunisia and Egypt for protecting the fleeing refugees and called on the international community to support the efforts. It would be repugnant if today the ongoing violence in Libya was somehow used as a legal basis for a use of force which would serve to trap and endanger migrants, rather than making them safer.
In addition to the serious legal questions relating to the use of force to capture and destroy smugglers’ boats, there are serious practical concerns. Take the example of the unprecedented boat disaster and the 900 deaths that occurred earlier this week. One of the likely reasons for the massive death toll was the large number of persons who were locked below the main deck of the boat. What precautions would prevent the destruction of a suspected smuggling vessel at anchor with hundreds of people below deck and out of sight? Would the EU boat destruction plan require that any capture or destruction of a suspected smuggling boat be carried out by deploying EU military personnel on the ground in Libya with the resulting ability to more closely inspect a vessel before its destruction? Or would the plan permit destruction of a suspected smuggling boat by armed drones or military aircraft? If the destruction could occur through the use of aircraft, people will be killed, and it is more likely that those who will be killed will be migrants or innocent fisherman and not the people smugglers.
The easiest targets for destruction will be the larger fishing vessels that are being used by the people smugglers. But not so long ago the smuggling boats of choice were the Zodiacs and other large or medium–sized inflatable boats powered by outboard engines. This type of boat can be easily stored in vehicles or storage buildings and quickly moved into the water when needed. It would be an easy tactical shift on the part of the people smugglers to resume the use of inflatables if the larger fishing vessels were no longer obtainable.
The European Council needs to take new and significant steps to respond to this crisis. A focus on people smugglers should certainly be something that is addressed, but while the people smugglers are taking advantage of the crisis, they are not the cause. The EU response needs to instead focus on expanded search and rescue (i.e. Mare Nostrum plus – not Operation Triton plus) and creating alternative safe paths for people to seek protection in the EU or in other appropriate countries. The boat destruction plan should be rejected.