Over 23,000 migrants were disembarked in Italy in June, following rescue from unseaworthy boats in the Central Mediterranean. Rescues are conducted by a mixed bag of actors, including public agencies, such as EUNAVFOR MED operation Sophia, FRONTEX and the Italian Coast Guard, and private charities such as the humanitarian NGO Médecins Sans Frontières, and amateur groups of individuals. In response to the massive number of sea arrivals, already surpassing 2016 numbers, Italy recently threatened to close Italian ports to boats flying foreign flags. Given that preventing the disembarkation of rescued migrants is practically unfeasible and possibly contrary to international law, the Italian threat is most likely aimed at forcing a fairer distribution of migrant reception among the EU Member States. The unsustainable burden currently falling on Italy, is souring the attitude of Italians to Mediterranean search and rescue, particularly to the NGOs rescuing migrants directly along the Libyan territorial sea, who are seen to be indirectly fueling the migrant smuggling.

The issue of rescue by NGOs acting as an incentive to migrant smugglers, was a bone of contention at the fourth Shared Awareness and De-confliction in the Mediterranean Sea (SHADE MED) that took place on 8-9 June at the Francesco Baracca airbase in Rome. The SHADE MED is organized by the European Union military operation active in the Southern Central Mediterranean (EUNAVFOR MED), which was established in response to the ‘refugee crisis’. EUNAVFOR MED operation Sophia is primarily charged with ‘disrupting’ migrant smuggling activities coming out of Libya, through identifying, capturing and destroying boats and weapons used by smugglers. The operation commenced in 2015, with three key phases: information gathering and surveillance; boarding, search and seizure of smugglers’ vessels on the high seas and Libyan territorial waters; and operational measures inside Libyan territory, controversially including the training of the Libyan Coastguard.

The forum has taken place biannually since 2015 to allow representatives from international, State or non-governmental organizations to meet and share their knowledge of trends and experience in facing the refugee crisis in the Mediterranean. The participants represented a comprehensive range of actors engaged in combatting migrant smuggling in the Mediterranean or providing search and rescue, including Navy and EUNAVFOR MED personnel, representatives from FRONTEX, NATO, INTERPOL, EUROPOL, the Italian Maritime Rescue Coordination Centre, the International Criminal Court, the UN Office on Drugs and Crime, consular and governmental officials from Member States, as well as senior figures in the Libyan Coast and Border Guard, and a few stray academics. The SHADE MED meeting has grown from 80 participants from 39 organizations/countries in November 2015 to 188 participants from 37 countries and 98 organizations at the June 2017 meeting.

The recent threats by Italy to prevent disembarkation of rescued migrants by NGO boats highlights the importance of such forums in bringing together the diverse stakeholders active in the Mediterranean. With tensions running high, such events, similar to the April 2017 ILS/LUF workshop on ‘Search and rescue at sea: The interaction between public and private actors’, provide an essential neutral space for these actors to debrief, ‘deconflict’ and coordinate their maritime operations, as well as challenge misunderstandings often reported in the media. For example, media reports of accusations of NGOs cooperating with Libyan migrant smugglers was an informal issue of discussion amongst participants at the forum.

The focus of the latest SHADE MED was overwhelmingly on ‘disrupting the smugglers business model’ of Libyan migrant smugglers to prevent deaths at sea. The forum commenced with a welcome address by the operation Sophia Commander, Rear Admiral Enrico Credendino, who highlighted the need for stakeholders to work together against migrant smuggling operations, followed by keynote addresses from law enforcement agencies and operational updates from the navy operations. A senior Libyan Coast Guard official also spoke, delivering a public wish list for weapons and boats to the European Union. Capacity building of the Libyan Coast Guard was an important theme throughout the forum.

This forum’s working group sessions were situated around the themes of Operational, Smugglers’ Business model and its effects, Communication and Information System, Migration – SAR – Shipping, Capacity building and training in Libya, and Legal. The legal workshop discussed whether migrant smuggling or human trafficking taking place in Libya could fall within the definition of a crime against humanity under article 7 of the Rome Statute of the International Criminal Court. The EUNAVFOR MED legal team suggested updating article 7 to reflect an expanded concept of ‘modern slavery and systematic violations of human rights such as those occurring during the migrations flows from Libya’. The push to redraft the definition of CAH to include migrant smuggling and human trafficking by the EUNAVFOR MED reflects the difficulties in prosecuting smugglers after their capture.

When operating in international waters, apprehended smugglers have been prosecuted in Italian courts, but with the move to operating in Libyan waters a new legal basis is needed. It would currently be necessary for Libya to waive their right to prosecute suspected smugglers to allow for prosecution by an EU Member State, or to have a transfer agreement in place for transferal to Libya. Both options rely on Libyan consent, and prosecution within Libya raises human rights protection issues. Expanding the definition of CAH would provide universal jurisdiction for prosecution by State Parties to the ICC Rome Statute.

Interestingly, EUNAVFOR MED has been actively canvassing this idea, as Commander Credendino noted in his opening remarks (available on the EUNAVFOR website):

The organized violation of the basic rights of a group of people has led me to realize that, under certain circumstances, migrant smuggling and human trafficking, taking place in Libya, should be considered as an international crime against humanity. In the past months, I shared this idea with a number of international and national partners and obtained a wide backing…

It will be interesting to watch how the EUNAVFOR MED-led attempts to expand the definition of crimes against humanity progress, since the migrant crisis shows no signs of abating.