Crimes Against Humanity against ‘Migrants’ in the Central Mediterranean Route Committed by officials of EU States and Agencies
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I
The European Council
AExecutive Summary
As the agenda-setting organ of the European Union, the European Council assumes a key role in the elaboration of the framework in which all the relevant migration policies outlined in the present and the prior communications were developed and implemented. Due to its composition – heads of state or of government of each Member State– and the recent progression towards intergovernmentalism within the European Union, the European Council was able to substantially control, incentivize, refrain or expand European Union and national policies on migration matters.
The permanent President has the responsibility to coordinate the work of the European Council and is assisted in this task by a technocratic structure, which is scrutinized in detail below. But the Member States’ representatives and civil servants were the ones who took the lead in setting the objectives of the European Council during the period of our concern. As such, some of their members became key actors in the progressive adoption of criminal policies that led to the death and ill-treatment of more than 150 000 people.
The General Secretariat supports the European Council to ensure the legality of the latter’s Conclusions, coordinate the positions of the Member States and provide it with technical advice. This body nonetheless failed to intervene and stop the criminal EU migration policies.
President Tusk seems to have been the ideological driver, with a unilateral approach centered exclusively on the repression of migration movements, which was perceived as a threat that should be fought at all costs. He significantly steered the European Council’s work and more specifically paved the way for the toughening and criminalization of European policies that were pushed by Italy, Malta, Germany, France, and the V4 in particular.
None of the Member States tried to resist the common shift towards criminal behavior. The consensual nature of the institution facilitated a progressive and uncontrolled tendency towards inhumane policies, a development that was fostered by lack of democratic and legal control. This shift happened as the European Council progressively took the lead in implementing the criminal policies, superseding the Council of the European Union and other institutions. Another institutional figure, the High Representative Mogherini, further promoted and supported coordination with Libya on matters of migration.
Because the European Council sets the agenda of the European Union but does not produce law per se, it was never the first institution to mention or explicitly elaborate specific policies. However, tracing its Conclusions throughout the years, researching the discussions that took place at the Council, interviewing former participants, advisers, and civil servants, reveal that the members of the European Council and asserted themselves over the EU’s bureaucratic structures, as migration policy was pushed front and center on the political stage. The EU Council increasingly pushed for the so-called securitization of borders, the deprioritization of search and rescue, and the externalization of border control to third countries such as Libya.
This was reflected in the rhetorical shift in Council Conclusions and statements by members of the Council who, for example, went from describing “economic or irregular” to “illegal” ‘migrants’ and the fading emphasis on “saving lives” towards a “crisis management” vocabulary that would only keep references to human rights as a decorum for its more and more aggressive policies.
While the end of Mare Nostrum was not explicitly mentioned in European Council Conclusions and statements, reports indicate that it was intensively discussed in informal channels by its participants. When Italian Prime Minister Matteo Renzi requested an “europeanization” of the mission, asking the EU to continue to carry out the search and rescue operation, Member States jointly rejected this request, as none of the actors of the European Council would back up a ministerial initiative that would prolong the large-scale search and rescue operation at a continental level, therefore signaling the path to follow to the Council of the European Union.
The launch of the scaled-down, Frontex’s Joint Operation Triton did not originate within the European Council. But it was nonetheless prompted by its members’ refusal to europeanize Mare Nostrum and their desire to deprioritize search and rescue. This decision was taken in full consciousness of the already insufficient capacities of Mare Nostrum to prevent large loss of life in the Mediterranean, and the knowledge that a further reduction in search and rescue capabilities would significantly increase the number of drownings in the Central Mediterranean. In parallel to the creation of JO Triton, impulsed by some of the most powerful members of the Council of the European Union, the European Council was already contemplating third country cooperation and the stabilization of Libya as its main policy options on the matter.
The EUBAM and Seahorse activities, which already started in 2013, illustrate the active steering of the European Union towards an externalization of border control to Libyan actors. This objective was further embedded in a context of repeated statements of various heads of government that European search and rescue operations constituted a “pull factor”, and these trends were impulsed by the Council under the Commission’s influence.
In response to the failure of their first policy of willful omission to rescue, the European Council members instructed the High Representative for Foreign Affairs and Security Policy Mogherini to prepare a Common Security and Defense Policy operation, an instruction which led to Operation Sophia. This was accompanied by a renewed call for third country cooperation to “stem” “illegal” immigration.
The European Council further framed “migrants” not as people seeking protection but criminals crossing into the European Union illegally. Simultaneously, the European Council members pushed for more cooperation with Libyan authorities, on top of Seahorse and EUBAM. Notwithstanding some of its most important members, including Emmanuel Macron, publicly acknowledged they constituted crimes against humanity, the European Council built a narrative to justify Libyan interception of ‘migrants’ and their subsequent treatment in Libya.
Although the institution iterated the need to regain control of its borders, Operation Sophia failed to fulfill the European Council’s objective to deter asylum seekers from crossing the Mediterranean. To rectify the perceived “weakness” of Sophia, and as a result of one of the European Council’s Conclusions, German Chancellor Angela Merkel initiated the Valletta Summit, which cemented the training of Libyan ‘coastguards’. In November 2015, the financial framework that would finance it: the EU Trust Fund For Africa (EUTF). The summit further laid the groundwork to share maritime surveillance data with Libya. Such a sharing of surveillance would drastically increase the capacity of the Libyan coastguards to intercept and pull back asylum seekers before reaching European shores into what a European diplomat had already described as “concentration camp like conditions.”1“Refugee mistreatment in Libyan trafficking camps,” DW, 29/01/17, https://www.dw.com/en/libyan-trafficking-camps-are-hell-for-refugees-diplomats-say/a-37318459, retrieved on 26/08/24 [https://web.archive.org/web/20240926161510/https://www.dw.com/en/libyan-trafficking-camps-are-hell-for-refugees-diplomats-say/a-37318459]
The pressure would keep on increasing from then on. In early 2016, the European Council still expressed its dissatisfaction with the “slow” pace of regaining control of external borders, whilst lauding the “yielding of results” of its migration policy. Once again, obtaining “results” in terms of decrease of “migrant” arrivals appeared more important than reducing the rising death toll of people attempting to cross over to Europe and the crimes against humanity they were being subjected to in Libya.
To “rectify” the so-called slow pace, the European Council pushed for “taking any measure that may become necessary”2European Council, Council Conclusions 17 and 18 March 2016, 18/03/2016 https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf, retrieved on 08/03/2021 [https://web.archive.org/web/20240929155757/https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf] , p. 3. – an expression that is not unknown to experts of international criminal law and mass violence – and expressed its full support to improve Libya’s ability to “manage” migration in the Mediterranean. This expression was particularly related to the training of and support to the Libyan coastguard – an action that would be included in Operation Sophia’s mandate only a few months after – despite the grave crimes committed against ‘migrants’ in Libya. Refoulement to and disembarkation in Libya, in spite of the fact that Libya could not be considered as a safe port, was thus perceived by the European Council not only as acceptable, but also desired, in so far it triggered a reduction of arrivals in Europe. The search, capture and force transfer of ‘migrants’ back to Libya have also resulted in a reduction of drownings’ figures in the Mediterranean, assisting the European Union in correcting the communicational damage its first policy caused, as well as further supporting the ousting of NGO from Mediterranean waters.
The European Council consistently praised Operation Sophia and the decrease in arrivals. The drop in arrivals was presented as the direct consequence of the criminal policies implemented in Libya under the Council’s auspices. This supposedly ‘positive’ development occurred against the background of further victimization, which in turn were pointed out by the European Council in order to call for additional support for these very same criminal policies.
The European Council mentioned the ill-treatment of ‘migrants’ in Libya once in 2017 and called for the allocation of funds to international organizations to “improve” their conditions. Yet international organizations had been present in Libya and European funds were widely deployed to them from day one. Yet no improvement was reached, criminal groups only reinforced their grip of over the lives and agency of ‘migrants’, and the commission of crimes against humanity against them prospered. No serious effort to try to terminate this situation would ever subsequently be taken. The same Council’s Conclusions praised the “success” of EU measures to remove incentives for “illegal” migration, underlining the EU’s hypocritical use of humanitarian language when it was in fact the Libyan coastguard it trained and funded which forcibly returned intercepted ‘migrants’ to detention where they were subjected to death, torture, rape, and enslavement.
In 2018, in an effort to undermine rescue NGO activity in the Mediterranean, the European Council called for all vessels to stop “obstructing” Libyan vessels. This demand happened in a context of rescue NGOs’ criminalization by a multitude of Member States, including Italy, Malta, Spain, the Netherlands, and Germany.
Adding to the intimidation of rescue NGOs which were trying to fill the fatal gap left by the end of Mare Nostrum, the European Council actively advocated for the interception of asylum seekers by Libyan authorities even if European rescue NGOs were in close distance to vessels in distress, thus willingly and consciously increasing the number of victims of crimes against humanity committed in Libya. In line with previous endeavors, the European Council made all effort to capture and forcibly transfer fleeing ‘migrants’ to Libya whilst veiling the involvement of European actors in this joint criminal enterprise.
BOrganizational Structure
IGeneral Overview
Until its integration in the Treaty on European Union (TEU), the European Council was an informal structure.3European Council, The President’s role, 17/08/2020, https://www.consilium.europa.eu/en/european-council/president/role/, retrieved on 16/09/2020 [https://web.archive.org/web/20200915123143/https://www.consilium.europa.eu/en/european-council/president/role/] Its status was only formalized in 2009, when the Treaty on European Union was adapted after the adoption of the Treaty of Lisbon, adding Article 15 under which the European Council “shall define the general political directions and priorities” of the Union.
The European Council is composed of the heads of state and government of the Member States of the European Union, the European Council President, and the European Commission President.4European Council, How the European Council works, www.consilium.europa.eu/en/european-council/how-the-european-council-works/, retrieved on 16/09/24 [https://web.archive.org/web/20240718152650/https://www.consilium.europa.eu/en/european-council/how-the-european-council-works/] When relevant, it is joined in its work by the High Representative of the Union for Foreign Affairs and Security Policy (Art. 15(2) TEU). The European Council adopts official Conclusions after each European Council meeting to outline particular actions to take or identify specific goals to reach within the European Union institutions and its Member States.5European Council, How the European Council works, www.consilium.europa.eu/en/european-council/how-the-european-council-works/, retrieved on 16/09/24 [https://web.archive.org/web/20240718152650/https://www.consilium.europa.eu/en/european-council/how-the-european-council-works/]
The modus operandi of the institution is marked by a strong informal tradition that dates back to the mid-seventies.6KASSIM, H., “The European Council – the who, what, where, how and why,” UK IN A CHANGING EUROPE, 18/02/16, https://ukandeu.ac.uk/explainers/the-european-council-the-who-what-where-how-and-why/, retrieved on 25/08/24 [https://web.archive.org/web/20240926105328/https://ukandeu.ac.uk/explainers/the-european-council-the-who-what-where-how-and-why/] Reuniting the most powerful political authorities of the continent, capable of formalizing the adoption of several legal dispositives (including Treaties), it nonetheless does not rely on direct normative power, but rather on its capacity to influence and guide the EU’s policy agenda through a series of more or less formalized “techniques” and tools, as for example its capacity to set a deadline for reaching an agreement on a specific topic or for the presentation of a legislative proposal, as well as to arbitrate disagreements that arise at the level of the Council of the European Union.7European Council, How the European Council works, www.consilium.europa.eu/en/european-council/how-the-european-council-works/, retrieved on 16/09/24 [https://web.archive.org/web/20240718152650/https://www.consilium.europa.eu/en/european-council/how-the-european-council-works/]
Conclusions, the main formal tool available to the Council, are generally adopted by consensus in the course of scheduled and extraordinary meetings, which are not publicly accessible and take place quarterly.8European Council, How the European Council works, www.consilium.europa.eu/en/european-council/how-the-european-council-works/, retrieved on 16/09/24 [https://web.archive.org/web/20240718152650/https://www.consilium.europa.eu/en/european-council/how-the-european-council-works/] “Informal meetings” are also regularly convoked, after which Statements, and not Conclusions, can be issued. The main difference between formal and informal meetings of the Council is that in the first case, the draft Conclusions are screened through a lengthy process involving the COREPER (Committee of the Permanent Representatives of the Governments of the Member States to the European Union), the sherpas (personal representatives of heads of state, government and EU institutions) and the General Affairs Council (GAC),9European Council, European Council conclusions, https://www.consilium.europa.eu/en/european-council/conclusions/#process, retrieved on 26/08/24 [https://web.archive.org/web/20240926142401/https://www.consilium.europa.eu/en/european-council/conclusions/#process] while in the second case draft statements can emerge with significatively less concertation.10European Council, European Council conclusions, https://www.consilium.europa.eu/en/european-council/conclusions/#process, retrieved on 26/08/24 [https://web.archive.org/web/20240926142401/https://www.consilium.europa.eu/en/european-council/conclusions/#process] The GAC refers to the council of European affairs ministers from all Member States which convenes once a month and is tasked with upholding consistency across all Council configurations, including European Council meetings.
In practical terms, full discretion remains at the disposal of heads of states in any of those formations, as they are neither escorted by advisors nor dispose of any communication device when negotiating in the European Council.11Interviewee I76 Assisted by the “Antici” advisers, who, in a separate room, are authorized to hear the discussions of the Council, take notes and report to their administration, the heads of State and Government can convoke them in order to obtain punctual support.12Interviewee I76
Ahead of the actual European Council meetings, guidelines for the Conclusions are drafted by the President of the European Council and their content is essentially pre-negotiated by the Sherpas of heads of state. Sherpa meetings serve to ease out tensions and unofficially facilitate an agreement at the level of heads of governments. Generally, there is one designated Sherpa per country, but depending on the Member States’ personnel capacities, configurations might vary according to thematic issues.13Interviewee I22 14Interviewee I76 15Interviewee I72 At European Council meetings, the European Commission is represented by its President,16European Commission, Ursula Von Der Leyen, https://ec.europa.eu/commission/commissioners/2019-2024/president, retrieved on 16/09/2020 [https://web.archive.org/web/20200916083428/https://ec.europa.eu/commission/commissioners/2019-2024/president] which introduces “an element of supranationalism into an otherwise avowedly intergovernmental body.”17European Parliament, Relations between the European Council and the European Parliament, Institutional and political dynamics, 09/2018, https://www.europarl.europa.eu/RegData/etudes/STUD/2018/630288/EPRS_STU(2018)630288_EN.pdf, retrieved on 08/03/2021
IIThe President of the Council and its Cabinet
The President of the European Council is elected by Member States for two and a half years and is tasked, according to the official terminology, with chairing, driving forward, ensuring the preparation and continuity (sic) of the work of its members ; facilitating cohesion and consensus ; and reporting to the European Parliament after each session.18Consolidated version of the Treaty on European Union, article 15, http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] During the relevant time period, this office was held successively by Herman Van Rompuy (December 2009 – November 2014), Donald Tusk (December 2014 – November 2019) and Charles Michel (December 2019 – 2024).
The Presidents of the European Council does not have a vote in the European Council, which accords them the status of a non-voting executive chair. Member States agreed to provide the President of the European Council with a staff equivalent in size to the European Commission’s President immediate office. Additionally, the President “can draw on the resources of the Council Secretariat, traditionally at the disposal of the Council Presidency.”19European Parliament, Relations between the European Council and the European Parliament, Institutional and political dynamics, 09/2018, https://www.europarl.europa.eu/RegData/etudes/STUD/2018/630288/EPRS_STU(2018)630288_EN.pdf, retrieved on 08/03/2021 [https://web.archive.org/web/20240903130254/https://www.europarl.europa.eu/RegData/etudes/STUD/2018/630288/EPRS_STU(2018)630288_EN.pdf], p. 8. A small private office of close advisors forms the cabinet of the President. It is composed of a head of cabinet who commonly acts as the President’s Sherpa, and seven supporting units: “Horizontal coordination; Europe in the world; Prosperous Europe; Integrated and sustainable Europe; Press and communications; Private office; Administrative support.”20European Council, Cabinet of Charles Michel, https://www.consilium.europa.eu/en/european-council/president/cabinet/, retrieved on 15/04/2021 [https://web.archive.org/web/20210328113745/https://www.consilium.europa.eu/en/european-council/president/cabinet/]
In matters of migration policy, the head of cabinet and the Europe in the world unit advise and support the President’s work.21Interviewee I72 The head of cabinet is responsible for the European Council meetings as well as the general strategy and management of the Cabinet. He is assisted in both endeavors by the deputy head of cabinet whose position was subsumed within a designated Sherpa position under Charles Michel.22European Council, Cabinet of Charles Michel, https://www.consilium.europa.eu/en/european-council/president/cabinet/, retrieved on 15/04/2021 [https://web.archive.org/web/20210328113745/https://www.consilium.europa.eu/en/european-council/president/cabinet/] The advisors draft the text of the European Council Conclusions, prepare the guidance of the discussions in the Council, and present the President with available options, suggesting which course to take. The advisors within the unit use their network within Member States and the Permanent Representations to inquire about Member States’ positions on a given topic. When dealing with migration policies, their focal points are usually the European Advisor within an Interior Ministry or the Advisor on Justice and Home Affairs of a head of state. They also communicate with the General Secretariat of the Councils’ Directorate-General Justice and Home Affairs (DG JAI). This General Directorate generally has a sound understanding of Member States’ opinions since they follow all the evolutions of the working parties’ positions, and can thus provide an overview over Member States agreement or disagreement at any given time. In parallel, whilst the deputy head of cabinet is in charge of engaging with the Member States’ Sherpas, the head of cabinet maintains the link with the Permanent Representatives of the Member States. The fragmentary information is collected, compiled by the cabinet and used to draft the European Council Conclusions. Before being deliberated on by the heads of state, a prior Sherpa meeting in which they discuss the first draft of Conclusions and offer their comments and objections usually takes place. Based on this feedback, the cabinet will rework the Conclusions before presenting them to the European Council.23Interviewee I72
IIIThe General Secretariat of the Council
The General Secretariat of the Council provides administrative, legal, and advisory support to both the European Council and the Council of the EU, the latter’s presidency, the Permanent Representatives Committee (Coreper), and the other committees and working parties of the Council of the EU.24European Council, The General Secretariat of the Council, 07/09/2020, https://www.consilium.europa.eu/en/general-secretariat/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916083844/https://www.consilium.europa.eu/en/general-secretariat/] Officially, its main objectives are to[1] “assist, advise and help coordinate the work of the Council and the European Council, including the implementation of the Council's 18-month programme; to support the Council presidency in negotiations within the Council and with other EU institutions; to provide logistical support and handle the practical organization of meetings (including meeting rooms, document production and translation); to prepare draft agendas, reports, notes and minutes of meetings at all levels.”25European Council, The General Secretariat of the Council, 07/09/2020, https://www.consilium.europa.eu/en/general-secretariat/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916083844/https://www.consilium.europa.eu/en/general-secretariat/]
As such the General Secretariat also carries a “legislative function” in helping to draft documents and disseminating them to ministers, diplomats and the presidencies and can propose to discuss a subject to the presidency.26Interviewee I19 The General Secretariat is able to offer opinions on policy and exercises an important and influential role.27Interviewee I19 Through the years the General Secretariat’s importance increased. Due to its position at the intersection of the two Councils, the desire for enhanced inter-institutional coordination, and its closeness to the Presidencies, the Secretariat General has been described to be at “the center of gravity of European power.”28MANGENOT, M., “La Présidence du Conseil : sociologie d’une institution de l’Union Européenne,” Politique Européene, 03/2011, https://shs.cairn.info/revue-politique-europeenne-2011-3-page-7?lang=fr, retrieved on 24/08/2024 [https://web.archive.org/web/20240903131517/https://shs.cairn.info/revue-politique-europeenne-2011-3-page-7?lang=fr]
Moreover, the Presidency most often follows General Secretariat’s advice and recommendations.29Interviewee I70 Such advice theoretically never concerns policy objectives but rather indicates ways to achieve a majority among Member States.30Interviewee I70 The General Secretariat interacts with all delegations to strike a suitable compromise. In the migratory context, evidence suggests that it has not pushed towards a human rights approach but rather for “what could reach a majority”.31Interviewee I70
At times, the General Secretariat is also responsible for the organization of high-level meetings with heads of state or ambassadors from non-EU countries. The General Secretariat is in contact with the Commission, specifically its Secretariat-General, at all times.32Interviewee I48
It is headed by a Secretary General (Uwe Corsepius[2] 2011 – July 2015 & Jeppe Tranholm-Mikkelsen July 2015 –) who is instated by the Council of the EU. This person is in charge of the entire General Secretariat’s organization. They participate in Council and European Council meetings and ensure continuity and progress of the Council’s work.33General Secretariat, The Secretary-General, 07/09/2020, https://www.consilium.europa.eu/en/general-secretariat/secretary-general/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153734/https://www.consilium.europa.eu/en/general-secretariat/secretary-general/]
The General Secretariat is further divided into the following seven Directorates-General (DGs), each headed by a Director-General, providing policy and legal support, with three DGs appearing to be most relevant for the matter at hand:
Directorate-General JAI - Justice and Home Affairs
Directorate-General JUR – Legal Service
Directorate-General RELEX - Foreign Affairs, Enlargement and Civil Protection
Each of the DGs is administered by a Director-General. They support and manage Council configurations and advise the president of the European Council, the Council of the EU as well as its members on policy and procedural issues.34General Secretariat, Directors-General, 15/09/2020, https://www.consilium.europa.eu/en/general-secretariat/director-generals/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153929/https://www.consilium.europa.eu/en/general-secretariat/director-generals/] Political administrators within the General Secretariat discuss Council documents with the presidency and assess the position of Member States on specific policy decisions.35Interviewee I1 With regard to migration policy, the Director Generals were, depending on their personal relations, given direct access to permanent representatives and heads of state, exerting a notable degree of influence.36Interviewee I76
(a) Legal Service (DG JUR)
One crucial part of the General Secretariat is its Legal Service. It provides legal opinions to the Council of the EU and its preparatory committees to ensure the lawfulness of their decisions.37European Council, The General Secretariat of the Council, 07/09/2020, https://www.consilium.europa.eu/en/general-secretariat/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916083844/https://www.consilium.europa.eu/en/general-secretariat/] This legal service additionally arbitrates “difficult decisions.”38Interviewee I19 One source indicated that this division’s advice carries the most weight.39Interviewee I19 In this capacity, DG JUR is involved in all discussions at every level of both Councils, including the Working Groups and the Coreper.40Interviewee I70 Their work consists mostly of oral interventions.41Interviewee I70 Upon request, or in some other specific cases, such as in case of uncertainties regarding the legality of a decision, they also provide written opinions.42Interviewee I70 The DG is not empowered to authorize or veto decisions but gives advice when it considers decisions to be illegal or at risk of being considered illegal.43Interviewee I70 The Council may ignore any opinion by the Legal Service.44Interviewee I70 The Legal Service may further be asked for an opinion or intervention at informal discussions among Member States in the Council.45Interviewee I70 Based on these discussions, the Presidency prepares a compromise with the assistance of the Legal Service.46Interviewee I70
Mr. Hubert Legal was Director General of the legal service since 2011 and retired in July 2019.47General Secretariat, Appointment of the new Director general of the Council legal service, 15/03/2019, https://www.consilium.europa.eu/en/press/press-releases/2019/03/15/appointment-of-the-new-director-general-of-the-council-legal-service/, retrieved on 08/03/2021. According to the information gathered and confirmed by two members of DG JUR, between 2013 and 2019 DG JUR had never intervened to ensure the Council’s discussions over migration issues are based on the Law’s rule or warned about potential violations of international, European and EU law.
[1] The General Secretariat’s structure will be explained hereafter and equally applies to the report on the Council of the EU.
[2] Corsepius was later the European Advisor to Chancellor Merkel within her office.
IVPower Dynamics within the European Council
Power Structures within the European Council are fairly opaque. It is unclear how much influence the permanent President exerts over the migration policy agenda in comparison to the Member States. Given the politicized nature of migration issues, however, it is more likely than not that the Member States refused to cede much strategic control to the President.
Generally, multiple sources suggest that France, Germany, and Italy were the most influential Member States.48Interviewee I20 49Interviewee I22 50Interviewee I28 51Interviewee I61 Due to the polarization of the issue itself, however, all Member States had a vested interest in asserting their own positions. In this regard, the Visegrad group and countries such as Austria or the UK became vocal in their opposition to any measures potentially offering “incentives” to asylum seekers to come to Europe and tried to constitute alternative alliances that would be able to weigh on the discussions and the Conclusions of the Council.52Interviewee I34 53Interviewee I35
VInternal Member State Developments
During the examined period, a number of important developments in policy positions can be traced within key Member States, illustrating their position’s evolution on migration and reflecting actions endorsed in the European Council.
As one of the most powerful Member States, Germany underwent a policy change and increased its active involvement in migration policies due to the sudden influx of “migrants” into the country. A progressive reorientation towards third country cooperation from mid-2015 underpins, firstly, Germany’s crucial role in the EU-Turkey agreement,54“Merkel setzt bei EU-Gipfel in der Flüchtlingskrise auf die Türke,” Deutsche Welle 16/02/2016, https://www.dw.com/de/merkel-setzt-bei-eu-gipfel-in-der-flüchtlingskrise-auf-die-türkei/a-19051970, retrieved on 08/03/2021 and later in 2016, its aim to replicate such cooperation, this time with Libya.55“Dann ist Europa zerstört,” Welt.de, 04/06/2016, https://www.welt.de/politik/deutschland/article155953559/Dann-ist-Europa-zerstoert.html, retrieved on 08/03/2021 [https://web.archive.org/web/20180309180027/https://www.welt.de/politik/deutschland/article155953559/Dann-ist-Europa-zerstoert.html]
Chancellor Merkel stated after the EU-Turkey deal that the next challenge was to handle migration from Africa, calling for similar agreements with EU’s southern neighbors.56Die Bundeskanzlerin.de, Pressekonferenz von Bundeskanzlerin Merkel und dem österreichischen Bundeskanzler Kern, 23/06/2016, https://www.bundeskanzlerin.de/bkin-de/aktuelles/pressekonferenz-von-bundeskanzlerin-merkel-und-dem-oesterreichischen-bundeskanzler-kern-844590, retrieved on 08/03/2021 [https://web.archive.org/web/20250529164559/https://cvd.bundesregierung.de/cvd-de/login] Former Minister of Interior De Maizière stated in early 2016 that the “period of waving through of refugees” was now over.57“De Maizière beendet “Zeit des Durchwinkens,” Welt.de, 28/02/2016, https://www.welt.de/politik/deutschland/article152719775/De-Maiziere-beendet-Zeit-des-Durchwinkens.html, retrieved on 03/08/2021 [https://web.archive.org/web/20240705060830/https://www.welt.de/politik/deutschland/article152719775/De-Maiziere-beendet-Zeit-des-Durchwinkens.html] Despite a Foreign Office’s report in 2017 on “concentration camp-like conditions” in Libyan detention camps,58“Merkel reagiert auf KZ-ähnliche Zustände in Flüchtlingslager in Libyen,” Euractiv, 30/01/2017, https://www.euractiv.de/section/eu-aussenpolitik/news/merkel-reagiert-auf-kz-aehnliche-fluechtlingslager-in-libyen/, retrieved on 17/05/2020 [https://web.archive.org/web/20240530145819/https://www.euractiv.de/section/eu-aussenpolitik/news/merkel-reagiert-auf-kz-aehnliche-fluechtlingslager-in-libyen/] Germany reiterated the need for a quick deal with the North African country, to actively promote “migration partnerships”.
France, comparatively, was marked by a more reluctant course of action on migration under François Hollande’s Presidency, with a simultaneous active engagement of the Interior Minister Bernard Cazeneuve that seemed to be authorized but not guided by the head of state. This changed when Emmanuel Macron took office and concentrated migration policy matters in his office.[1]
Italy, being at the heart of the “migration crisis”, underwent a radical policy transformation during the considered time and its positions in the European Council consequently evolved. While it had operated the large-scale search and rescue operation Mare Nostrum under Enrico Letta, its policy position subsequently shifted towards an increasing externalization of border control. As former Foreign Affairs Minister Alfano mentioned shortly before the European Council meeting in December 2015, “everyone is now convinced that the key is to strengthen the external border.”59“Renzi attacca su migranti e rigore: ‘No a un’ Europa a guida solo tedesca’,” La Repubblica.it, 17/12/2015, https://www.repubblica.it/esteri/2015/12/18/news/renzi_attacca_su_migranti_e_rigore_no_a_un_europa_a_guida_solo_tedesca-129716135/, retrieved on 11/03/2021 [https://web.archive.org/web/20211017103656/https://www.repubblica.it/esteri/2015/12/18/news/renzi_attacca_su_migranti_e_rigore_no_a_un_europa_a_guida_solo_tedesca-129716135/] Matteo Renzi, former Prime Minister, stated in a radio interview that “if we want to solve the problem upstream, we need a different relationship with Africa,”60“Migranti: Renzi, bene documento Ue,” Ansa.it, 21/10/2016, https://www.ansa.it/sito/notizie/topnews/2016/10/21/migranti-renzi-bene-documento-ue_c013b8e3-604d-4917-95d8-df6ac0bea91f.html, retrieved on 11/03/2021 most likely upholding this position in the European Council meeting of 21st October 2016, taking place on the same day of the interview.
Italy’s externalization efforts were made in the form of extensive support and cooperation with Libyan authorities, and Italy steered actively towards this policy position in the Council’s meetings. At a press conference sidelining a European Council meeting in 2017 where the Malta Declaration was signed, Former Prime minister Gentiloni highlighted that the agreement with Libya "opens many opportunities on which Italy will work and invest, but it is very important that the EU also works and invests, and it will also do so with additional resources that Juncker and Mogherini have explicitly mentioned.”61“Migranti, vertice a Malta. Leader Ue, pieno sostegno ad accordo Italia-Libia,” Ansa.it, 03/02/2017, https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html, retrieved on 11/03/2021 [https://web.archive.org/web/20241124194105/https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html]
With regard to the cooperation with Libya, Gentiloni called for increased involvement of the EU stressing that "what has been done, has been done thanks to the Italian initiative, of which we must be aware and proud.”62“Migranti, vertice a Malta. Leader Ue, pieno sostegno ad accordo Italia-Libia,” Ansa.it, 03/02/2017, https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html, retrieved on 11/03/2021 [https://web.archive.org/web/20241124194105/https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html] Strong cooperative ties with Libya are not only illustrated by the Memorandum of Understanding that former Prime Minister Gentiloni signed with his Libyan counterpart Serraj on the fight against human trafficking and ‘illegal’ immigration, receiving congratulations from Juncker (President of the European Commission), Tusk (President of the European Council) and Tajani (President of the European Parliament) but also by the fact that Italy was the only Western country to reopen its diplomatic representation in Tripoli in 2017.63“Migranti, vertice a Malta. Leader Ue, pieno sostegno ad accordo Italia-Libia,” Ansa.it, 03/02/2017, https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html, retrieved on 11/03/2021 [https://web.archive.org/web/20241124194105/https://www.ansa.it/sito/notizie/mondo/europa/2017/02/02/-tusk-possiamo-riuscire-a-chiudere-rotta-verso-italia-_ea1090ed-4945-476d-92ff-651e1b50d210.html]
With regard to the restriction and criminalization of NGOs, former Prime Minister Conte highlighted in June 2018 "that all ships crossing the Mediterranean, including NGOs, must respect the laws and must not interfere with the operations of the Libyan Coast Guard”64General Secretariat, Appointment of the new Director general of the Council legal service, 15/03/2019, https://www.consilium.europa.eu/en/press/press-releases/2019/03/15/appointment-of-the-new-director-general-of-the-council-legal-service/, retrieved on 08/03/2021. – a statement that illustrates most likely the position presented by Italy at the European Council meeting of 28 June 2018. The outlined shift in policy position was instigated by the political shift first to Social-Democrat Matteo Renzi, who resigned after failing to realize constitutional reforms; his temporary successor Gentiloni, and finally an anti-establishment government coalition led by Giueseppe Conte.[2] While Conte himself was not part of a political party, the political structures of the Italian government imbued his cabinet members with substantial influence and power and reduced his autonomy in the Council meetings.65CRISTIANI, D., “Italy Eyes Central Europe to Promote Sovereigntism Inside EU,” The Jamestown Foundation Global Research and Analysis, 22/10/2019, https://jamestown.org/program/italy-shifting-dynamics-in-foreign-policy-decision-making/, retrieved on 16/06/2025 [https://web.archive.org/web/20250616120104/https://jamestown.org/program/italy-eyes-central-europe-to-promote-sovereigntist-inside-eu/]
Malta, led by the Social-Democrat Joseph Muscat, pursued an aggressive migration policy from the start, reportedly concluding its own agreements with first Italy and later Libya to keep “migrants” from reaching Maltese shores with complete disregard for the resulting commission of crimes against humanity.[3] Muscat himself had to resign in the midst of corruption and murder allegations. This aggressive policy continued under Robert Abela and was at the core of Malta’s interventions in the Council, as a bargaining tool for other subjects. Muscat’s lengthy mandate as well as the geographic central position of Malta in the Central Mediterranean allowed him to create personal relations with most of the heads of State and increase his weight in the discussions.
The UK, albeit on the verge of leaving the EU in the relevant period, progressed from an initially fairly indifferent David Cameron to a highly active Theresa May and later Boris Johnson. While May and Johnson increasingly exited EU policymaking, they contributed considerably to the migration policies at hand and supported restrictive migration policies and the deprioritization of search and rescue incentivized by the Council.[4]
Spain underwent changes in its political leadership but continuously pursued a migration policy of externalization for almost a decade.[5] The Spanish government systematically relied on alliances with major countries in order to amplify its voice. To strengthen its negotiation position in the central Mediterranean, Spain emphasized its “experience” and crucial role in cooperation with countries relevant for the West-Mediterranean route, namely Senegal, Mauritania, and Morocco. It was the first country to pledge contributions to the EU Trust Fund for Africa in November 2015,66Conferencia de prensa del presidente del Gobierno después de la Cumbre de La Valeta sobre Migración,” La Moncloa, 12/11/2015, https://www.lamoncloa.gob.es/presidente/intervenciones/Paginas/2015/prrp20151112.aspx, retrieved on 08/03/2021 [https://web.archive.org/web/20221106172949/https://www.lamoncloa.gob.es/presidente/intervenciones/Paginas/2015/prrp20151112.aspx] and the government remained firm on its position to stop ‘illegal migration’ in the Mediterranean through the cooperation with third countries.67ABELLA, L., “Los líderes europeos fracasan en lograr avances en la crisis migratoria,” El Pais, 19/02/2016, https://elpais.com/internacional/2016/02/19/actualidad/1455850318_496971.html, retrieved on 08/03/2021 [https://web.archive.org/web/20230922015145/https://elpais.com/internacional/2016/02/19/actualidad/1455850318_496971.html] In 2016 its rhetoric changed from an initially slightly more humanitarian narrative of “saving lives at sea” to an openly strong support for external border control.68Conferencia de prensa del presidente del Gobierno después de la Cumbre de La Valeta sobre Migración,” La Moncloa, 12/11/2015, https://www.lamoncloa.gob.es/presidente/intervenciones/Paginas/2015/prrp20151112.aspx, retrieved on 08/03/2021 [https://web.archive.org/web/20221106172949/https://www.lamoncloa.gob.es/presidente/intervenciones/Paginas/2015/prrp20151112.aspx]
In the Visegrad countries, increasingly populist governments took office and pursued highly restrictive border policies domestically and within the EU regardless of the human cost, taking very aggressive public stances prior and after the Council reunions in order to raise the stakes and obtain major concessions.[6] In 2015, Poland and the Czech Republic were reported to be the most vociferous opponents to a mandatory quota scheme in the EU.69“Das große Schachern,” Zeit online, 23/06/2015, https://www.zeit.de/politik/deutschland/2015-06/fluechtlinge-eu-human-rights-watch, retrieved on 08/03/2021 [https://web.archive.org/web/20250125130817/https://www.zeit.de/politik/deutschland/2015-06/fluechtlinge-eu-human-rights-watch] 70LOATKA, J. and JANCARIKOVA, T., “France, central European states oppose quotas in EU migrant debate,” Reuters, 19/06/2015, https://www.reuters.com/article/us-europe-migrants-centraleurope-idUSKBN0OZ1IB20150619, retrieved on 08/03/2021 [https://web.archive.org/web/20220307200603/https://www.reuters.com/article/us-europe-migrants-centraleurope-idUSKBN0OZ1IB20150619] Statements of the Visegrad group indicate that the governments preferred voluntary redistribution of refugees over mandatory mechanisms. Even prior to European Council meetings in October 2015, the group had expressed the need to prioritize external border protection, cooperation with transit countries outside Europe.71Government of Czech Republic, The Countries of the Visegrad Group Issued a Joint Declaration on the Migrant Crisis, 15/10/2015, https://www.vlada.cz/en/media-centrum/aktualne/joint-statement-of-the-visegrad-group-countries-136019/, retrieved on 08/03/2021 [https://web.archive.org/web/20240418041632/https://vlada.gov.cz/en/media-centrum/aktualne/joint-statement-of-the-visegrad-group-countries-136019] Throughout 2016 and 2017 the Visegrad Group remained firm on these positions and welcomed that “what was denounced as insane is starting to rule the agenda (…) You have to stop migration beyond Europe’s borders,”72HERSZENHORN, D., “Hungary hardens immigration line,” Politico, 07/02/2021, https://www.politico.eu/article/hungarys-new-hardline-immigration-scheme-viktor-orban-refugees-migration-crisis-europe/, retrieved on 08/03/2021 [https://web.archive.org/web/20250611214344/https://www.politico.eu/article/hungarys-new-hardline-immigration-scheme-viktor-orban-refugees-migration-crisis-europe/] in particular, to detain prospective asylum seekers in Libyan camps.73Miniszterelnok.hu, Speech of Viktor Orbán at the EPP Congress, 30/03/2017, http://www.miniszterelnok.hu/speech-of-viktor-orban-at-the-epp-congress/, retrieved on 08/03/2021
In 2015, Austria initially raised concerns about the “planned destruction of tugboats by military forces” in the Mediterranean Sea. However, former Foreign Minister Sebastian Kurz described it as "necessary" that the European Union "does not stand by and watch but becomes active" in the fight against traffickers.74Grünes Licht für EU-Marinemission gegen Schlepper, Der Standard, 18/05/2015, https://www.derstandard.at/story/2000016000952/gruenes-licht-fuer-eu-marinemission-gegenschlepperbanden, retrieved on 08/03/2021 [https://web.archive.org/web/20250619133207/https://www.derstandard.at/consent/tcf/story/2000016000952/gruenes-licht-fuer-eu-marinemission-gegenschlepperbanden] In this period Federal Chancellor Werner Faymann had also stressed the need for functioning repatriation agreements for African refugees.75“Flüchtlingsgipfel: Aktionsplan von EU und Afrika,” ORF, 11/11/2015, https://orf.at/v2/stories/2309320/, retrieved on 08/03/2021 [https://web.archive.org/web/20250619133031/https://newsv2.orf.at/stories/2309320/] Similar to the development in the Visegrad Group countries, Austria was marked by a slide into increasingly right-wing and populist governance under Sebastian Kurz, elected in 2017. He was one of the first EU politicians to call for a closure of the central Mediterranean refugee route76“Österreichs Konflikt-Themen mit der EU,” Profi.at, 27/06/2018, https://www.profil.at/oesterreich/oesterreichs-konflikt-themen-mit-der-eu/400906592, retrieved on 08/03/2021 [https://web.archive.org/web/20200807173318/https://www.profil.at/oesterreich/oesterreichs-konflikt-themen-mit-der-eu/400906592] and actively advocated for restrictive migration policies without any concern for the resulting commission of crimes against humanity. Despite Kurz relatively short term in office (2017-2019), his influence in the previous period as Foreign Minister seemingly directed Austria to pursue border control focused policies from the start.[7] Similar to Mr. Orban, Kurz invested a large part of his political capital in these issues and used the Council meetings on migration in his interior political space to demonstrate Austria’s hardness and political weight. On 1 July 2018, shortly after Austria took over the EU Council Presidency, heads of state agreed on better border protection, faster repatriations, and the creation of refugee centers in countries in North Africa where intercepted refugees should be contained. Kurz welcomed the decisions as a "turnaround" in EU migration policy.77“Salzburg-Gipfel - Chronologie: “Und täglich grüßt das Murmeltier,” Salzburger Nachrichten, 17/09/2018 https://www.sn.at/politik/weltpolitik/salzburg-gipfel-chronologie-und-taeglich-gruesst-das-murmeltier-40170607, retrieved on 08/03/2021 [https://web.archive.org/web/20180918131500/https://www.sn.at/politik/weltpolitik/salzburg-gipfel-chronologie-und-taeglich-gruesst-das-murmeltier-40170607] The motto of Austria’s EU Presidency “A Europe that protects,” illustrated the country’s firm position in “fighting illegal migration for more security in Europe.”78“EU-Vorsitz - Große Brocken in der Ratspräsidentschaft Österreichs,” Trend.at, 26/06/2018, https://www.trend.at/newsticker/eu-vorsitz—-grosse-brocken-in-der-ratspraesidentschaft-oesterreichs-10163563, retrieved on 08/03/2021 [https://web.archive.org/web/20220520071632/https://www.trend.at/newsticker/eu-vorsitz—-grosse-brocken-in-der-ratspraesidentschaft-oesterreichs-10163563]
The Netherlands was led by the same Prime Minister, Mark Rutte, throughout the entire period. Rutte pursued a persistent conservative policy that became more and more aggressive as the successive plans to reduce the Mediterranean crossings at all costs appeared to fail.[8] The government’s positioning on migration policies in 2015 was to “deploy all relevant policy means and instruments at the disposal of the Union” and highlighted the shared responsibility of countries of origin, transit, and destination in the question of “human smuggling and broader migration problems.”79Parlamentaire Monitor, Brief regering; Geannoteerde agenda van de Europese Raad van 25 en 26 juni 2015 - Raad Algemene Zaken en Raad Buitenlandse Zaken, 23/06/2015, https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vjv0enkdm7zs, retrieved on 08/03/2021. Throughout the following period the Dutch government remained firm on its position in the European Council to “dismantl[e] the cynical business model of human smuggling and thus reducing the migration flows to Europe and making them more manageable.”80Parlamentaire Monitor, Brief regering; Recente ontwikkelingen op het terrein van asiel en migratie en geannoteerde agenda voor de extra JBZ-Raad van 22 september 2015 en de informele extra Europese Raad van 23 september 2015, 23/09/2015, https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vjxkhcx192zv, retrieved on 08/03/2021 [https://web.archive.org/web/20240903133615/https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vjxkhcx192zv] In 2016 and 2017, when loss of life in the central Mediterranean continued to take place, the Dutch government highlighted the importance of intensifying the cooperation of migration cooperation with countries in North Africa.81Parlamentaire Monitor, Brief regering; Geannoteerde agenda Europese Raad van 9 en 10 maart 2017 - Europese Raad, 07/03/2017, https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vkcbkzq3y1wo, retrieved on 08/03/2021 [https://web.archive.org/web/20240903133657/https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vkcbkzq3y1wo] Despite mentioning that Libya remained without a stable government, Prime Minister Rutte continuously expressed the need to establish an agreement to “stem the flow of migrants”. Rutte applauded the agreement within the European Council in June 2018 to strengthen Frontex and to “take measures to prevent NGOs providing assistance at sea from being misused by human traffickers.”82Rijksoverheid.nl, EU-leiders bereiken akkoord over migratie, 29/06/2018, https://www.rijksoverheid.nl/actueel/nieuws/2018/06/29/eu-leiders-bereiken-akkoord-over-migratie, retrieved on 08/03/2021 [https://web.archive.org/web/20210302115511/https://www.rijksoverheid.nl/actueel/nieuws/2018/06/29/eu-leiders-bereiken-akkoord-over-migratie]
[1] See France’s Report
[2] See Italy’s Report
[3] See Malta’s Report
[4] See United Kingdom’s report.
[5] See Spain’s report
[6] See Visegrad Group’s Report
[7] See Austira’s report
[8] See the Netherlands’s report
CImplication in Criminal Policies
IPREAMBLE: 2013 – The Beginning
In October 2013, following the tragic drownings of migrants in the Mediterranean near Lampedusa, the European Council discussed migration policies at the initiative of Van Rompuy. The Conclusions of the Council of 25 October 2013 allege a “deep sadness” of the Council and pledged “determined action (…) to prevent the loss of lives at sea and to avoid that such human tragedies happen again.”83European Council, Council Conclusions 24/25 October 2013, 25/10/2013, www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf, retrieved on 26/04/2022 [https://web.archive.org/web/20131029192953/https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf], p. 17.
The responsibility of the follow-up in terms of migration policy was however delegated to the European Commission. The Conclusions, as was already planned in the pre-General Affairs Council draft, circulated on 21 October 2013 and welcomed the establishment of the Task Force Mediterranean, calling for a report by the Commission at the December European Council “with a view of taking operational decisions.”84European Council, Council Conclusions 24/25 October 2013, 25/10/2013, www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf, retrieved on 26/04/2022 [https://web.archive.org/web/20131029192953/https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf], p. 18. Therefore, the Council’s further actions were to be largely influenced by this external body.85LUDLOW, P., “Pre-summit Briefing 2013/5: The European Council of 24-25 October 2013,” Eurocomment, Leuven University Press, 10/2013
However, the members of the Council also pushed for particular strategic orientations. On the evening of October 22nd, Italy and other Mediterranean States submitted a comprehensive agreement, calling for burden-sharing and solidarity, as well as “specific measures to stop illegal flows in the countries of origin and transit, in particular through the provision of capacity building measures, the stepping up of FRONTEX activities, assistance and solidarity with the frontline member states.”86LUDLOW, P., “The Digital Economy, EMU, Migration, Cameron’s Deregulation Sideshow and Merkel’s Mobile Phone,” Eurocomment, Leuven University Press, 10/2013, p. 28. Van Rompuy, then president of the Council, chose to modify the text, which was changed between 23 and 25 October.87LUDLOW, P., “The Digital Economy, EMU, Migration, Cameron’s Deregulation Sideshow and Merkel’s Mobile Phone,” Eurocomment, Leuven University Press, 10/2013, p. 28. He mostly focused on including the second, more repressive part; there was only a piecemeal reference to burden-sharing or solidarity.88LUDLOW P., “Preliminary Evaluation 2013/5: The European Council of 24-25 October 2013,” Eurocomment, Leuven University Press, 10/2013This proves both the Member States’ involvement in shaping EU migration policy, in that they pushed for specific additions at a rather late time of the drafting process, and Van Rompuy’s own agency, as he was the one to choose which way the policy was to be oriented, i.e., towards “enhancing cooperation with the countries of origin and transit,” “the reinforcement of Frontex activities in the Mediterranean” and “swift implementation by Member States of the new European Border Surveillance System (EUROSUR).”89European Council, Council Conclusions 24/25 October 2013, 25/10/2013, www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf, retrieved on 26/04/2022 [https://web.archive.org/web/20131029192953/https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf], p. 18. These points would feature prominently in the strategy later outlined by the newly created ‘Task Force Mediterranean’.
II2014 - Mare Nostrem
In 2014, almost none of the Council Conclusions mentioned migration in relation to the Mediterranean or Libya. The European Council of 20 and 21 March 2014, stressed the importance of addressing “irregular migration and the fight against smuggling of migrants and trafficking of human beings.”90European Council, Council Conclusions – 20/21 March 2014, 21/03/2014, https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/141749.pdf, retrieved on 05/05/2022 [https://web.archive.org/web/20200606164035/http:/data.consilium.europa.eu/doc/document/ST-11-2015-INIT/en/pdf], p. 15. It was Joseph Muscat who successfully insisted on inserting the phrase about “smuggling of migrants.”91LUDLOW P., “Preliminary Evaluation 2014/2: The European Council of 20-21 March, 2014,” Eurocomment, Leuven University Press, 05/2014, p. 43. One of the soon to be priority policy emerged during an informal dinner on 27 May 2014: the idea of “irregular migration” as an intrinsically negative phenomenon.92Interviewee I76 93European Council, Remarks by President Herman Van Rompuy following the informal dinner of Heads of State or Government, 27/05/2014, www.consilium.europa.eu/media/25752/142862.pdf, retrieved on 20/01/2022 [https://web.archive.org/web/20220120102221/https://www.consilium.europa.eu/media/25752/142862.pdf], p. 2. In the European Council of December 2014, Matteo Renzi opposed financing Ukraine. He and others suggested, on the grounds that the EU might need this money elsewhere, for example in Libya, thus anticipating the EU’s financial intervention in Libya.94LUDLOW P., “Preliminary Evaluation 2014/6: December 2014 : A New Beginning?,” Eurocomment, Leuven University Press, 01/2015, p. 28.
Whilst no official meetings about ending Mare Nostrum took place, multiple reports indicate that this decision was still discussed in the usual European Council channels, through Sherpas and among heads of state and government.95Interviewee I33 96Interviewee I26 97Interviewee I76 Renzi inquired whether the EU would be willing to europeanize the operation as Italy could no longer do so, “politically” and “financially”.98Interviewee I33 This idea was rejected as Italy and Malta were willing to agree to a European Mare Nostrum only if they would not have to accept the rescued “migrants.”99Interviewee I28 Notably, Italy withdrew its consent in the European Council to what it considered its “main asset: the landing of migrants,” and Malta argued “they did not have the space” to take in “migrants.”100Interviewee I28 According to Joseph Muscat, all other Member States were unwilling to take in these “migrants” which is why this proposal ultimately failed.101Interviewee I28 Despite the comparatively low number of asylum seekers and “migrants” present at the time in the in the territories of the Member States, none of these States was willing to continue searching and rescuing “migrants” in distress at sea, if rescue means safe disembarkation in an EU port.
III2015 - Operation Triton
The Council members refused to europeanize Mare Nostrum. Instead, they aimed to deprioritize search and rescue to deter “migrants” from crossing to Europe. It is in this context that the scaled-down Joint Operation (JO) Triton, which was discussed and implemented only at the ministerial level, was developed. Once Triton was established102European Council, Council Conclusions 19 and 20 March 2015, 20/03/2015, https://data.consilium.europa.eu/doc/document/ST-11-2015-INIT/en/pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200606164035/http:/data.consilium.europa.eu/doc/document/ST-11-2015-INIT/en/pdf] at the request of Italy, the European Council Conclusions in March 2015 advocated for “strengthening Triton”,103European Council, Council Conclusions 19 and 20 March 2015, 20/03/2015, https://data.consilium.europa.eu/doc/document/ST-11-2015-INIT/en/pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200606164035/http:/data.consilium.europa.eu/doc/document/ST-11-2015-INIT/en/pdf], p. 6. an action that is embedded in a context of repeated statements by government officials across the EU, warning that European search and rescue operations would constitute a “pull factor.”104Interviewee I76 105“De Maizière: Mühsam, aber nötig,” DW, 09/07/2014, https://www.dw.com/de/de-maizi%C3%A8re-ursachen-der-flucht-bek%C3%A4mpfen/a-17769243, retrieved on 18/06/2024 [https://web.archive.org/web/20240618101601/https://www.dw.com/de/de-maizière-ursachen-der-flucht-bekämpfen/a-17769243] 106TOTARO, P., “The UK is now turning its back on migrants dying at sea – have we learned nothing from Australia,” the Guardian, 29/10/2014, https://www.theguardian.com/commentisfree/2014/oct/29/the-uk-is-now-turning-its-back-on-migrants-dying-at-sea-have-we-learned-nothing-from-australia, retrieved on 18/06/2024 [https://web.archive.org/web/20240920085353/https://www.theguardian.com/commentisfree/2014/oct/29/the-uk-is-now-turning-its-back-on-migrants-dying-at-sea-have-we-learned-nothing-from-australia] Conclusively, the European Council’s members accepted the foreseen deaths of “migrants” in the Mediterranean as a means to deter further crossings.
These developments combined with the European elections, Juncker’s election and Mogherini’s nomination, led to the reintroduction of the question of Libya in the European Council. It also followed Mogherini’s alert to the foreign ministers about the danger in Libya at the informal Foreign Affairs Council (FAC) meeting in Riga in January 2015, and her subsequent briefings and calls to action addressed to Tusk.107LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published), p. 29. Tusk, who was convinced by Obama’s pessimistic outlook on Libya, requested to properly tackle this issue at the European level.108LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published), p. 29. His plans, circulated at the beginning of March 2015, proposed that the European Council would hold an “exchange of views on the situation in Libya and its implications for the security of the European Union in terms of illegal migrants and terrorist threats.”109LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published), p. 29. As for the draft Conclusions, they were directly inspired by the Foreign Affairs Council’s Conclusions of 16 March 2015, the first FAC to discuss migration policy in eleven years.110LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published), p. 36. 111LUDLOW P., “Pre-summit Briefing 2015/2,” Eurocomment, Leuven University Press, 03/2015, p. 4.
During the council meeting on 19 March 2015, Tusk opened the discussion by underlining how much of a threat Libya represented, so much so that he planned on visiting affected countries.112LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) But it is Federica Mogherini who framed the debate.113LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) She stressed the need to reinforce efforts towards the establishment of a government of national unity, which would require concertation with the local leaders in Libya, and considering the challenge posed by immigration.114LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) Mogherini recalled that 85-90% of the ‘migrants’ coming into Europe from the South transited via Libya, which is why she would work with the commissioner in charge of migration, Commissioner Dimitris Avramopoulos, in the next weeks.115LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) She also advocated for a “jumbo council” between JHA and FAC Councils, in anticipation of the June European Council.116LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) Renzi, Michel, Rajoy, Muscat, Hollande, Tsipras, Passos Coelho, Sobotka, Borissov, Bettel and Cameron agreed.117LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published)
Muscat specifically asked for and obtained the integration of two amendments in the final Conclusions. In paragraph 15, he pushed not only for the EU “[standing] ready” to work with a Government of National Unity in Libya, but to declare that it was prepared to “make use of all its instruments,” pointing implicitly to the CSDP mission advocated by Mogherini, which would be concretized with Operation Sophia.118LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) In paragraph 16, he managed to add to the objectives of the Commission’s new Agenda for Migration “the fight against and the prevention of illegal migration.”119LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) This orientation had not emerged as such from the Foreign Affairs Council, although Mogherini seemed favorable to it.120LUDLOW P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published) This session on Libya was covered by the Antici, which means that there is a verbatim report on what was said on the matter.
After the ‘black week’ of April 2015, during which hundreds of “migrants” drowned in the Mediterranean, the European Council convened for a special meeting on 23 April 2015. During the meeting the Council alleged that its priority was to save lives and that it was intending to increase its “presence at sea”.121European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] Tusk had put Pierre Vimont in charge of the Central Mediterranean zone, relied on the newly appointed Jeppe Tranholm-Mikkelsen and Christine Roger to ground his power, and asked the EU Councils and the Commission for their propositions in terms of policy.122LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press
This Council was called only three days in advance and was insufficiently prepared. The special meeting’s statement, drafted by Piotr Serafin on April 22nd, came from the JHA-FAC jumbo council of April 20th and from the first draft statement that Serafin presented to a special meeting of COREPER on the 21st.123LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press The Commission’s input to this statement was therefore marginal, although Commissioner Dimitris Avramopoulos had presented, at the aforementioned jumbo council, an outlook of the Commission’s work that was to be released.124LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press This partly explains why this Council proved unable to have an effective response to the mass drownings unfolding in the Mediterranean: poor coordination with other instances impeded the European Council from pushing for a precise and comprehensive action plan. Most of the Council’s impact lays in the momentum it gave to the imposition of Libya-specific Conclusions by Renzi, Muscat and Mogherini, which in turn led to prioritization of Libya in European migration policies, notably within the Councils of the European Union and by the upcoming Luxembourg presidency.125LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press
This European Council was also the turning point in terms of power balance with the European Commission: migration policy was becoming Chefsache (affairs of the person in charge), tackled by the heads of state and government, rather than by the bureaucrats of the European Union. Concurring bodies then tried to push for their own approach of the crisis, creating an institutional and political dichotomy.126LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published) Juncker, the president of the Commission, openly criticized the Council of 13 April 2015, a few days later, for its lack of significant decisions.127LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published) He tried to delay the meeting, so that it could be built upon the Commission’s work; but it was denied, and the only input of the Commission – marginally taken into account during the Council preparation – was a hasty ten-point action plan.128LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published) The Commission’s “Migration agenda”, announced on 4 March 2015, would finally be published on 13 May 2015; elaborated alongside the Council’s emergency decisions, it contributed to the dichotomy in the European migration policy.
The published Agenda demonstrated the Commission’s scramble to rise to the severity of the occasion as well as the rivalry itself from the start of the Juncker Commission. The initial presentation of the agenda’s intended working areas lacked a response or even mention of the crisis unfolding in the Mediterranean.129LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), pp. 5, 16. The published Agenda did contain explicit mention of the loss of life at sea and calls for a restoration of Mare Nostrum level search and rescue efforts through, crucially, the increase of Triton and Poseidon’s budget. Yet these efforts have never reached the previous levels of search and rescue, further contributing to the endangering of migrants. This event likely further jeopardized Juncker’s position and enabled the Council’s takeover, leading to an overall more repressive and less humanitarian policy.
This change was reflected in one of the main practical measures emerging from this European Council, which similarly called for the increase of funds for Triton and Poseidon, “allowing to increase search and rescue possibilities within the Frontex mandate.”130European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] This measure faced similar opposition as Mare Nostrum. The UK, for instance, argued that an increase in SAR capacities would simply increase refugees’ crossings.131LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 2. Theresa May, the British home affairs minister, renewed her opposition to any enhancement of the “pull” factor at the special JHA Council of 20 April 2015.132LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 2. However, the ongoing humanitarian crisis provoked a shift. The draft statement called for at least the doubling of financial support to Triton and Poseidon Operations in 2015 and 2016, along with the provision of more and better ships for SAR.133LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 3. All of this however was to be enacted “within the mandate of Frontex”, a pernicious condition that would impede effective and large-scale SAR.134LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 3. A call for pledges by the member states was included in the draft statement.135LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 3.
During the Council itself, Tusk called for “solidarity” in face of the “tragedy”. He called for the extension of Triton and Poseidon’s resources, even though these operations did not have sufficient rescue capacities. He called for a strategy of relocalization and cooperation, which did not respond to the drownings in the Mediterranean. The sole apparent purpose, was to maintain European cohesion.136LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 7.
Tusk did not let Mogherini to speak within the first interventions. Although she had presided the crucial JHA-FAC jumbo council, he had let her to speak only at the end.137LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 8. As for Juncker, he had set his priorities, calling for a tripling rather than a doubling of Triton and Poseidon’s resources.138LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 9. Renzi supported his position, stressed the security dimension of the crisis, and supported Tsipras’s call for a CSDP operation and for support to origin and transit countries.139LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 9. He warned that “[i]f Libya’s current instability is not resolved, we shall never be able to prevent the Mediterranean from becoming a cemetery.”140LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 9.
Renzi’s warning explicitly frames European migration policy in terms of containment and externalization, rather than immediate prevention of the humanitarian tragedies that justified the convening of this Council. No actual efforts to prevent drownings from happening again were made. Instead, the Council merely introduced humanitarian vocabulary as window dressing intended to distance themselves from any political responsibility. Some heads of state or of government might have sincerely believed in Frontex’s ability to conduct search and rescue operations, considering their lack of familiarity with the question. An assertive amendment to paragraph 3a, stating that the pledges would allow Frontex to increase its search and rescue possibilities “in the coming weeks”, was inserted; it is yet to be determined who pushed for it and how impactful it was supposed to be beyond paying further lip service to humanitarian efforts.141LUDLOW, P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press (never published), p. 13.
This increase was adopted in October 2015142European Parliament, Definitive adoption (EU, Euratom) 2015/1769 of Amending budget No 5 of the European Union for the financial year 2015, 07/10/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015B1769,retrieved on 16/09/2020 [https://web.archive.org/web/20200916084949/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015B1769] but did not meaningfully expand the operation’s search and rescue activities.[1] It thus served rather as a visual assurance to the European public in light of the Lampedusa tragedies more so than as an honest effort to rectify its own policy which contributed to the increasing death tolls.
[1] See Frontex report.
IVENTRACTE - 2015 - The shift towards the externalization
The Council statement of 23 April 2015 made explicit reference to Libya for the first time in this context, stressing its support for achieving stability in the country, as well as the active efforts towards re-establishing a governmental authority in Libya.143European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] In this statement the EU declared that it will “step up efforts” to address conflict and instability as key ‘push’ factors of migration.144European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] “[A]ll efforts” at EU disposal should be mobilized, in cooperation with countries of origin and transit, to tackle root causes of the “human emergency” at sea.145European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] As early as two years before the Malta Declaration, the EU was considering cooperation with Libya as a means to “prevent illegal migration flows and to reinforce internal solidarity and responsibility.”146European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] Under the humanitarian cover, the EU laid the foundations for its subsequent practice of systematic refoulement, to complement the willful omission prevent loss of life at sea.
In the same statement, the European Council emphasized its aim to “prevent illegal migration flows,” by “building capacity for maritime border management and search and rescue operations… [through] work[ing] with regional partners.”147European Council, Special meeting of the European Council – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916084720/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] This is probably the first explicit mention of the envisioned use of ostensible search and rescue capacities by non-European countries as a means to “solve” the “migration crisis”. The EUBAM and Seahorse activities which had already started in 2013 and focused on supporting Libya’s border [management and security],148European Union External Action Service, Common Security and Defence Policy - EU Integrated Border Assistance Mission in Libya (EUBAM Libya), January 2015, https://eeas.europa.eu/archives/docs/csdp/missions-and-operations/eubam-libya/pdf/factsheet_eubam_libya_en.pdf, retrieved 09/06/2024149European Commission, Questions and Answers: Migration on the Central Mediterranean route – Memo, 25/01/2017, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_17_135, retrieved on 09/06/2024 demonstrate that the European Council was actively steering towards an externalization of border control to the Libyan authorities and therefore towards the systematic refoulement of asylum seekers, despite its own clear understanding of the dire conditions in Libya.
To this end, the European Council invited Mogherini to prepare a potential Common Security and Defense Policy operation, presumably leading to the European Union Naval Force – Mediterranean (EUNAVFOR MED) Operation “Sophia” – a military operation with the aim to systematically “identify, capture, and dispose of vessels [being used by] suspected migrant smugglers” in the Southern Central Mediterranean.150EUNAVFOR MED, Mission, https://www.operationsophia.eu/about-us/#mission, retrieved on 08/03/2021 [https://web.archive.org/web/20250610102346/https://www.operationsophia.eu/about-us/#mission] The following Conclusions in June 2015 reiterated the desire to cooperate with third countries to stem “illegal migration,” commended the launch of EUNAVFOR MED and mentioned the Valletta Summit as an important venue to realize its goals in terms of third country cooperation on migration.151European Council, Council Conclusions 25 and 26 June 2015, 26/06/2015, https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917095507/https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf] The April 2015 Council, which had emerged out of humanitarian concerns, resulted in the launch of a military operation whose objective was never to save lives.
During the April 2015 Council, Stefan Löfven, the Swedish prime minister, was the only one to intervene on refugees’ rights and respect of international law.152LUDLOW, P., “Preliminary Evaluation 2015/3: Migration Policy,” Eurocomment, Leuven University Press (never published), p. 10. He pushed to remove a phrase in the initial draft that called to prevent potential migrants from reaching European shores, which would have blocked asylum seekers from applying for asylum.153LUDLOW, P., “Preliminary Evaluation 2015/3: Migration Policy,” Eurocomment, Leuven University Press (never published), p. 10. He succeeded with the support of Faymann and Mogherini, in spite of Rutte’s opposition. All the other members seemed unbothered and passive.154LUDLOW, P., “Preliminary Evaluation 2015/3: Migration Policy,” Eurocomment, Leuven University Press (never published), p. 10. However, this victory was purely formal and symbolic, as all the instruments implemented or reinforced within this council effectively steered in the opposite direction.
The European Council meeting in June 2015, which was more thoroughly prepared than that of April 2015, voted on migration related questions.155LUDLOW, P., “Preliminary Evaluation 2015/4 and 5,” Eurocomment, Leuven University Press (never published) As an event “institutionalized” by the Treaties, it was structured by a provisional agenda conceived on 11 May 2015, followed by draft guidelines on 10 June 2015, draft Conclusions on 15 June 2015, and a pre-General Affairs Council draft on 22 June 2015.156LUDLOW, P., “Preliminary Evaluation 2015/4 and 5,” Eurocomment, Leuven University Press (never published), p. 1. It is only on 10 June 2015, however, that migratory questions became central through Tusk’s initiative.157LUDLOW, P., “Preliminary Evaluation 2015/4 and 5,” Eurocomment, Leuven University Press (never published), p. 1.
This Council set up the Visegrad Group as a main actor on migration, as the situation in the Eastern Mediterranean was gaining more attention from European institutions than that in the Central Mediterranean. The Visegrad Group which was composed of the Czech Republic, Hungary, Poland and Slovakia, opposed mandatory distribution quotas pushed for by the Commission. Other Member States’ efforts pushed for an agreement on “the temporary and exceptional relocation” of a very limited number of refugees from Italy and Greece.158European Council, European Council Meeting 25 and 26 June 2015 Conclusions, 26/06/2015, https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf, retrieved on 08/03/2021 [https://web.archive.org/web/20240929165743/https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf] Tusk, along with Merkel and Dijsselboem, tried to find a compromise. But “something was broken” in the atmosphere of the European Council,159Interviewee I76 and European Council members focused on questions and areas where an agreement could be reached: the “protection” of external borders.160Interviewee I76 This was also the case for the Malta Declaration in 2017 so that every member state could agree despite leaving open questions. After Juncker’s inability to impose his European Agenda for Migration, the Council took the lead on migration policy by consolidating its decisions from April 2015, while abandoning any consideration of the humanitarian consequences of such policies.
In September 2015, Merkel and Faymann tried in to urgently reintroduce the question of relocation within the Council discussions. Tusk conceded after some delay, but changed the main focus: the Council’s invitation letter of 18 September 2015 evoked partnerships with third countries rather than quotas.161LUDLOW, P., “Preliminary Evaluation 2015/8,” Eurocomment, Leuven University Press, pp. 14-15. He then organized an extraordinary Council meeting on 23 September 2015.162LUDLOW, P., “Preliminary Evaluation 2015/8,” Eurocomment, Leuven University Press, pp. 14-15. The focus on third country cooperation was reinforced by Renzi’s strong insistence on tackling the Libyan question.163LUDLOW, P., “Preliminary Evaluation 2015/8,” Eurocomment, Leuven University Press, p. 5. The European Council Conclusions of 16 October 2015 subsequently touched on this matter by calling for an increase in the funding of the EUTF with additional contributions by Member States.164European Council, European Council meeting (15 October 2015) – Conclusions, 16/10/2015, https://www.consilium.europa.eu/media/21693/euco-conclusions-15102015.pdf, retrieved on 28/08/2024 [https://web.archive.org/web/20240902084128/https://www.consilium.europa.eu/media/21693/euco-conclusions-15102015.pdf], p. 2. What would become the EUTF was proposed by Juncker only a few weeks earlier in his “State of the Union” speech of 9 September 2015, evidencing that the operational plans were still initiated and conceived by the Commission.165LUDLOW, P., “Preliminary Evaluation 2015/8,” Eurocomment, Leuven University Press, p. 10.
Operation Sophia failed to fulfill the European Council’s desire to successfully deter “migrants” from crossing the Mediterranean. At the informal meeting in September 2015, Tusk stressed the need to “regain control of our external borders.”166European Council, Doorstep remarks by President Donald Tusk before the Informal meeting of Heads of state or government, 23 September 2015, 23/09/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/09/23/pec-tusk-doorstep/, retrieved on 16/09/2020 [https://web.archive.org/web/20180107041449/https://www.consilium.europa.eu/en/press/press-releases/2015/09/23/pec-tusk-doorstep/] The European Council further instructed EU institutions to increase their pace as well as pledging support for the formation of the Government of National Accord in Libya.167European Council, Informal meeting of heads of state or government, 23/09/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/09/23/statement-informal-meeting/, retrieved on 16/09/2020 [https://web.archive.org/web/20241209065337/https://www.consilium.europa.eu/en/press/press-releases/2015/09/23/statement-informal-meeting/] The same points were reiterated in the European Council’s October Conclusions.168European Council, Council Conclusions 15 October 2015, 16/10/2015, https://www.consilium.europa.eu/media/21693/euco-conclusions-15102015.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20191008221445/https://www.consilium.europa.eu/media/21693/euco-conclusions-15102015.pdf]
This proactive behavior is in line with descriptions of Tusk as an agenda-setting President, willing to express his personal position, and Juncker’s assessment of Tusk as overstepping the powers of his position.169Interviewee I76 170D’ARGENIO, A., “”Accettate i migranti o stop fondi europei” Così è nato l’accordo con i paesi dell’Est,” La Republicca, 27/06/2024, https://ricerca.repubblica.it/repubblica/archivio/repubblica/2015/06/27/accettate-i-migranti-o-stop-fondi-europei-cosi-e-nato-laccordo-dellest15.html?ref=search, retrieved on 18/06/2024 [https://web.archive.org/web/20240618132509/https://ricerca.repubblica.it/repubblica/archivio/repubblica/2015/06/27/accettate-i-migranti-o-stop-fondi-europei-cosi-e-nato-laccordo-dellest15.html?ref=search] The draft Conclusions were the first ones to evoke the question of integrated border management (IBM) outside of the EU, in line with the Commission’s plans, paving the way to the cooperation agreements with the Libyan coastguard (LYCG).171LUDLOW, P., “Pre-summit Briefing 2015/9,” Eurocomment, Leuven University Press, 10/2015 The United Kingdom showed its quite expansive interest in participating in these mechanisms of external border management for the first time during this 15 October 2015 Council.172LUDLOW, P., “Preliminary Evaluation 2015/9,” Eurocomment, Leuven University Press, 15/10/2015, p. 11. This occurred in a context where anxiety about migration flows constituting a threat was omnipresent in the work documents of the Council – as exemplified by the draft statement of 9 October 2015.173LUDLOW, P., “Preliminary Evaluation 2015/9,” Eurocomment, Leuven University Press, 15/10/2015, p. 9.
It appears that 9.2 billion euros were made available by the European institutions between 2015 and 2016 to ‘manage’ migration.174LUDLOW, P., “Preliminary Evaluation 2015/9,” Eurocomment, Leuven University Press, 15/10/2015, p. 7. The EU therefore had the capacity, including the financial one, to comply with international law and prevent humanitarian disasters. The choice not to direct them to protect the life and rights of people on the move was strictly political.
Several sources report that Merkel was one of the most powerful actors within the European Council, without whom no decision would have gone ahead,175Interviewee I22 176Interviewee I61 with influence on Tusk and the Commission’s priorities, probably in coordination with Selmayr. Juncker remarked that “he could not remember a time in the past fifteen years (since Kohl’s departure), when the German Chancellor and the president of the Commission had been closer to each other than they were now.”177LUDLOW, P., “Pre-summit Briefing 2015/9,” Eurocomment, Leuven University Press, 10/2015, p. 25.
V2015 - Valletta Summit
Merkel, with the assistance of Pierre Vimont,[1] initiated the Valletta Summit,178LUDLOW, P., “Preliminary Evaluation 2015/10,” Eurocomment, Leuven University Press, 12/11/2015, pp. 9-11. which was hosted by Malta but framed as a European Council event. All EU heads of state attended, with the exception of the UK, Ireland, Poland and Portugal,179LUDLOW, P., “Preliminary Evaluation 2015/10,” Eurocomment, Leuven University Press, 12/11/2015, pp. 13. as well as many of their African counterparts. Also, Martin Schulz, Jean Asselborn and Frans Timmermans attended the summit, despite not being members of the European Council.180LUDLOW, P., “Preliminary Evaluation 2015/10,” Eurocomment, Leuven University Press, 12/11/2015, pp. 13. The Libyan Deputy Prime Minister Abdourhman A. M. Alahirish, was present as well.181European Council, Valletta Summit - Participants, 12/11/2015, https://www.consilium.europa.eu/media/23727/v-summit-2015-trombinoscope.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20250317113450/https://www.consilium.europa.eu/media/23727/v-summit-2015-trombinoscope.pdf]
The agreed upon Action Plan presented at the end of the conference proposed to:
“Train law enforcement and judicial authorities, […],
Contribute to prevent and address irregular migration and to fight related organized crime such as migrant smuggling […,]
Develop [European-African relations] to support maritime surveillance, […,]
Provide capacity building and financing for investments in improved border management system of Member States at regional and national level […, including] developing [a] training mechanism for border guards and police.”182European Council, Valletta Summit, 11 – 12 November 2015 Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916085754/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf], pp. 12-14.
The EU Emergency Trust Fund for Africa (EUTF), dedicated to assist with “migration management projects”, was also launched.183European Council, Valletta Summit, 11 – 12 November 2015 Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916085754/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf], pp. 12-14.
Pierre Vimont was the main architect of this Action Plan and of the Political Declaration. As his personal representative, he reported to Tusk consistently throughout its preparation.184LUDLOW, P., “Preliminary Evaluation 2015/10,” Eurocomment, Leuven University Press, 12/11/2015, p 4. He prepared the plan by working with Brussels-based ambassadors of the African Union; in the final phases, he chaired or co-chaired three pre-Valetta meetings with sherpas and representatives of supranational and international institutions.185LUDLOW, P., “Preliminary Evaluation 2015/10,” Eurocomment, Leuven University Press, 12/11/2015, p. 10.
The Valletta Summit laid the groundwork for the future training of the Libyan coastguard and created the financial tool to sustain it. The training of the Libyan coastguard to control their ostensible maritime zone was described as the “biggest project” and one of the least controversial discussions among Member States.186Interviewee I76 It further laid the foundation to share maritime surveillance data with Libya. Such a sharing of surveillance would drastically increase the capacity of the Libyan coastguards to capture “migrants” before reaching European shores.
The following financial contributions from individual Member States as well as the Commission and Switzerland were made to the EUTF, by 12 November 2015.187European Commission, A European Agenda on Migration – Factsheet, 12/01/2015https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917100400/https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf], p. 3.
The December 2015 European Council occurred after a period of intense work on migration questions. The Commission released a series of propositions on 15 December 2015, presented by Juncker on the same day before the European Parliament and supported the day after by Merkel at the Bundestag.188LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 12. On 16 December 2015, upon Tusk’s request, a report on migratory questions was produced by the Luxembourg presidency.189LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 8. At the Council itself, Mogherini made a declaration on the situation in the Central Mediterranean.190LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 5. Whose exact content could prove relevant for this case (the meeting was covered by Antici notes). Luxembourgish Prime Minister Xavier Bettel opened the debate by insisting on the (unproven) existence of a “pull factor.”191LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 17. Tusk had notably introduced Bettel by underlining his exceptional importance in the management of the refugee crisis during the Luxembourg Presidency.192LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 27. Tusk and Juncker then pushed for the Council to take strong measures ‘to save’ Schengen.193LUDLOW, P., “Preliminary Evaluation 2015/12,” Eurocomment, Leuven University Press, p. 27. The European Council officially expressed its dissatisfaction with the current results and repetitively urged for “speed[ing] up” implementation, stressing the necessity to “regain control over the external borders.”194European Council, Council conclusions 17 – 18 December 2015, 18/12/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/12/17/euco-conclusions-migration/, retrieved on 16/09/2020 [https://web.archive.org/web/20171225210701/https://www.consilium.europa.eu/en/press/press-releases/2015/12/17/euco-conclusions-migration/]
The only explicit mention of the Libyan question in these Conclusions makes reference to the Skhirat agreement.195European Council, Council conclusions 17 – 18 December 2015, 18/12/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/12/17/euco-conclusions-migration/, retrieved on 16/09/2020 [https://web.archive.org/web/20171225210701/https://www.consilium.europa.eu/en/press/press-releases/2015/12/17/euco-conclusions-migration/] This inclusion happed upon Mogherini’s request and with Muscat’s support, who both stressed that it was only a first step and that it should be further discussed at the next Councils.196European Commission, A European Agenda on Migration – Factsheet, 12/01/2015https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917100400/https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf] On 18 December 2015, a COREPER was convened by Christian Braun, permanent representative for Luxembourg, to elaborate the “terms of reference” of the Council’s Conclusions, adopting them unanimously (except for Italy).197European Commission, A European Agenda on Migration – Factsheet, 12/01/2015https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917100400/https://www.consilium.europa.eu/media/21933/euagendafor-migration_trustfund-v10.pdf], p. 22.
[1] A French diplomat who was serving as Executive Secretary-General of the European External Action Service.
VI2016
On 18-19 February 2016, the European Council reconvened, chaired by President Donald Tusk. The session began with an address from the President of the European Parliament, Martin Schulz,198European Council, European Council meeting Provisional Agenda, 17/02/2016, https://www.consilium.europa.eu/media/23724/18-19-euco-provisional-agenda.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917100848/https://www.consilium.europa.eu/media/23724/18-19-euco-provisional-agenda.pdf] and President of the Commission, Jean-Claude Juncker.199DRACHENBERG, R. and GRANT, T., “Outcome of the European Council of 18-19 February 2016,” 26/02/2016, https://epthinktank.eu/2016/02/26/outcome-of-the-european-council-of-18-19-february-2016/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916090928/https://epthinktank.eu/2016/02/26/outcome-of-the-european-council-of-18-19-february-2016/] The European Council highlighted the necessity to act swiftly on limiting migration.200European Council, Council Conclusions 18 and 19 February 2016, 19/02/2016, https://www.consilium.europa.eu/media/21787/0216-euco-conclusions.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916091104/https://www.consilium.europa.eu/media/21787/0216-euco-conclusions.pdf] paras 7-8. Once again, the desired result of decreasing “migrant” arrivals was more important than mitigating the rising death toll of “migrants” attempting to cross to Europe.201RANKIN, J., “Rising death toll in Mediterranean makes 2016 deadliest year yet,” The Guardian, 26/10/16, https://www.theguardian.com/world/2016/oct/26/rising-death-toll-in-mediterranean-makes-2016-deadliest-year-yet, retieved on 26/08/24 [https://web.archive.org/web/20240926161000/https://www.theguardian.com/world/2016/oct/26/rising-death-toll-in-mediterranean-makes-2016-deadliest-year-yet] The meeting itself focused on other matters, leaving the situation in the Central Mediterranean unaddressed.202LUDLOW, P., “European Council Briefing Note 2016/1-3,” Eurocomment, Leuven University Press, p. 28-42.
The European Council of 7 March 2016 was dedicated to the EU-Turkey deal, but it nonetheless reveals the dynamics and the state of mind within the Council. Cameron’s declaration that “[the EU] need[s] to break the link between getting in a boat and getting settlement in Europe,”203LUDLOW, P., “European Council Briefing Note 2016/1-3,” Eurocomment, Leuven University Press, p. 62. best exemplifies the Council’s approach. More than three years after the beginning of the “migration crisis” and one year after the Council taking charge, it still had not come to terms with the consequences of the ECHR’s Hirsi ruling. Cameron’s statement urged an increased externalization of migration policies to third parties that would intercept the “migrant” before any European intervention, thus avoiding the creation of any juridical obligation for the EU. Once again, the only one that tried to moderate the tone of the Conclusions was the Swedish Prime Minister Löfven, who insisted that migrants should be called “irregular” rather than “illegal”.204LUDLOW, P., “European Council Briefing Note 2016/1-3,” Eurocomment, Leuven University Press, p. 62.
At the European Council of 17-18 March 2016, the third within one month,205RICCARDI, K., “Migranti, verso il Consiglio Europeo. Renzi: E il terzo in un mese. Non va bene,” la Repubblica, 16/03/2016, https://www.repubblica.it/politica/2016/03/16/news/renzi_strage_via_fani_che_la_visione_di_moro_ci_aiuti_ad_essere_all_altezza_-135592995/, retrieved on 15/04/2021 [https://web.archive.org/web/20191225153111/https://www.repubblica.it/politica/2016/03/16/news/renzi_strage_via_fani_che_la_visione_di_moro_ci_aiuti_ad_essere_all_altezza_-135592995/] A few days before a Council meeting in March 2016, former Italian Prime Minister Renzi highlighted in the national Parliament that given the sluggish developments, “the European institution needs new ideas and a decisive change of direction. the EU-Turkey Deal was signed. Cameron insisted that Conclusions would tackle the Libyan question, which was granted by Tusk.206LUDLOW, P., “European Council Briefing Note 2016/1-3,” Eurocomment, Leuven University Press, p. 62. The European Council’s Conclusions called for “taking any measure that may become necessary” should new migration routes arise, and reiterated its support for the Government of National Accord and Libya’s ability to “manage migration in the Mediterranean”.207European Council, Council Conclusions 17 and 18 March 2016, 18/03/2016 https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf, retrieved on 08/03/2021 [https://web.archive.org/web/20240929155757/https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf] para 8. The Libyan Government of National Accord was rendered responsible for the ‘management’ of migration in the Central Mediterranean, confirming the strategy of externalization and discharge of responsibility. A sidelining meeting with heads of government from the UK, Germany, France, Italy, Malta and High Representative of the EU for Foreign Affairs and Security Policy Federica Mogherini took place, to discuss the situation in Libya and cooperation with the Libyan government.208“Rajoy: El acuerdo con Turquía “respeta escrupulosamente” la declaración institucional del Congreso,” La Moncloa, 18/03/2016, https://www.lamoncloa.gob.es/presidente/actividades/Paginas/2016/180316-consejo.aspx, retrieved on 08/03/2021 [https://web.archive.org/web/20240903173928/https://www.lamoncloa.gob.es/presidente/actividades/Paginas/2016/180316-consejo.aspx] Mogherini delivered a “huge input” on the creation of third country cooperation with Libya.209Interviewee I76
The expression of “any measure […] necessary” was mainly meant to incentivize the training and support of the Libyan coastguard - an action that will be included in Operation Sophia’s mandate only a few months after – despite the grave crimes committed against “migrants” in Libya and the full knowledge that Libya cannot be considered a “safe port” by any means.210Interviewee I76 211Mario Giro, Deputy Minister of Foreign Affairs, Italy, 6 August 2017 quoted in: MENDUNI, M., ‘Giro: “Fare rientrare quelle persone vuol dire condannarle all’inferno,” La Stampa, 6/08/2017, https://www.lastampa.it/2017/08/06/italia/giro-fare-rientrare-quelle-persone-vuol-dire-condannarle-allinferno-SXnGzVlzftFl7fNGFCMADN/paginahtml, retrieved on 31/05/2019 [https://web.archive.org/web/20240903174120/https://www.lastampa.it/cronaca/2017/08/14/news/giro-fare-rientrare-quelle-persone-vuol-dire-condannarle-all-inferno-1.34431931/] 212French President, Emmanuel Macron, 22 November 2017, quoted in: PENNETIER, M., “France tells Libya to act over migrant ‘crimes against humanity’,” Reuters, 22/11/2017, https://www.reuters.com/article/us-libya-migrants-france/france-tells-libya-to-act-over-migrant-crimes-against-humanity-idUSKBN1DM1YU, retrieved on 18/05/2019 [https://web.archive.org/web/20240903174153/https://www.reuters.com/article/us-libya-migrants-france/france-tells-libya-to-act-over-%20migrant-crimes-against-humanity-idUSKBN1DM1YU/] At that stage, refoulement through the Libyan coastguard became acceptable if it reduced arrivals to Europe and improved the EU’s reputation by also reducing “migrants’” drowning.
Reinforcing this strategy, the June 2016 Council Conclusions stressed the above-mentioned points as well as the “need” to cooperate with transit countries through the Partnership Framework laid out by the Commission.213European Council, Council Conclusions 28 June 2016, 28/06/2016, https://www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916091203/https://www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf] The Conclusions also commended the UNSC Resolution 2292 and the inclusion of Operation Sophia in enforcing the arms embargo on Libya as well as “training the Libyan coastguard.”214European Council, Council Conclusions 28 June 2016, 28/06/2016, https://www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916091203/https://www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf], p. 7.
This is the first direct and explicit mention of training the Libyan coastguard in the Conclusions. Shortly after, in August 2016, a Memorandum of Understanding was signed between the Operation Commander of Sophia and the Commander of the Libyan coastguard.215EUNAVFOR MED Operation Sophia, Operation SOPHIA: signed the agreement on Libyan Coast Guard and Navy Training, 23/08/2016, https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916091328/https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/] The narrative and co-operational set up of the training of the Libyan coastguard by the European Council through its Conclusions and agreements thus “paid off” and engendered the desired means to prevent and deter “migrants” from reaching European shores.
From June 2016 onwards, in line with the EEAS and the Commission’s Partnership Framework, priority was given to partnerships with African countries. Renzi insisted that the meeting in Bratislava should focus more on the Central Mediterranean, i.e. on crossings from Libya and relations between the EU and Africa.216LUDLOW, P., “European Council Briefing Note 2016/4-5,” Eurocomment, Leuven University Press The Bratislava Declaration of September 2016 thus once again reiterated the need to “ensure full control of external borders” but did not lay out new measures regarding policy in the Mediterranean.217European Council, Bratislava Declaration, 16/09/2016, https://www.consilium.europa.eu/media/21250/160916-bratislava-declaration-and-roadmapen16.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101447/https://www.consilium.europa.eu/media/21250/160916-bratislava-declaration-and-roadmapen16.pdf] Mr. Tusk described the meeting as a success stating that “the European Union is not perfect but we agree.”218“Cosa si è deciso a Bratislava,” Ilpost.it, 17/09/2016, https://www.ilpost.it/2016/09/17/unione-europea-bratislava-renzi-insoddisfatto/, retrieved on 11/03/2021, [https://web.archive.org/web/20240903174628/https://www.ilpost.it/2016/09/17/unione-europea-bratislava-renzi-insoddisfatto/]
In October 2016, Renzi called for increased involvement of the other Member States, as the EUTF had begun to give funding to migration-management projects in Africa.219LUDLOW, P., “European Council Briefing Note 2016/6,” Eurocomment, Leuven University Press, 10/2016 The European Council called for additional measures to curb migration and consequently, the European Border and Coastguard (Frontex) Regulation entered into force.220European Council, Council Conclusions 20 and 21 October 2016, 21/10/2016, https://www.consilium.europa.eu/media/24257/20-21-euco-conclusions-final.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101543/https://www.consilium.europa.eu/media/24257/20-21-euco-conclusions-final.pdf] Training of the Libyan coastguard under Sophia also began in the same month.221ENAVFORMED Operation Sophia, Operation SOPHIA: training activity in progress, 10/05/2018, https://www.operationsophia.eu/operation-sophia-training-activity-in-progress/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916091636/https://www.operationsophia.eu/operation-sophia-training-activity-in-progress/]
At the European Council of 15 December 2016, the question of the training, using the term “practical support” as a euphemism, of the Libyan coastguard was integrated for the first time in the agenda of the Council.222LUDLOW, P., “Pre-summit Briefing 2016-7,” Eurocomment, Leuven University Press, 12/2016, p. 2. It is unclear who or what led to such a step, directly involving the Council in a criminal policy. Mogherini stressed the necessity to focus on more “efficient” and closer to home actions in the Central Mediterranean, rather than developing the collaboration with further African states like Niger or Nigeria.223LUDLOW, P., “European Council Briefing Note 2016/7,” Eurocomment, Leuven University Press, 25/03/2017, p. 11. This Council was Gentiloni’s first one. It was also the first Council where the actions of NGOs were described as problematic and creating difficulties.224LUDLOW, P., “European Council Briefing Note 2016/7,” Eurocomment, Leuven University Press, 25/03/2017, p. 11.
VII2017 - The Libyan coastguard
The Central Mediterranean route became a pivotal concern for EU migration policy in 2017.225Council of the European Union, COMMISSION STAFF WORKING DOCUMENT – Report from the Commission to the European Parliament and the Council, 01/02/2019, http://europeanmemoranda.cabinetoffice.gov.uk/files/2019/02/ST-5988-2019-ADD-1-EN.pdf, retrieved on 15/04/2021, pp. 25-26. The COREPER met on January 19th, where it discussed a note prepared by the Maltese Presidency with the President of the European Council.226LUDLOW, P., “European Council Briefing Note 2017/1,” Eurocomment, Leuven University Press, p. 4. This note stressed the need for “robust outside support to local authorities”, and aimed explicitly at preventing anyone from leaving Libya towards the Central Mediterranean, either by “strong and lasting EU support” to the LYCG or by allowing European naval forces into Libyan territorial waters.227LUDLOW, P., “European Council Briefing Note 2017/1,” Eurocomment, Leuven University Press, p. 4. On January 25th 2017, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy presented the Joint Communication “Migration on the Central Mediterranean route: Managing flows, saving lives” to the Councils and the Parliament, proposing to reinforce EU action along the Central Mediterranean route and attributing a key role to Libya.228Council of the European Union, COMMISSION STAFF WORKING DOCUMENT – Report from the Commission to the European Parliament and the Council, 01/02/2019, http://europeanmemoranda.cabinetoffice.gov.uk/files/2019/02/ST-5988-2019-ADD-1-EN.pdf, retrieved on 15/04/2021, p. 25. Both of these documents were merged on January 30th after a meeting between sherpas and the COREPER organized by Serafin.229LUDLOW, P., “Pre-summit Briefing 2017/1,” Eurocomment, Leuven University Press, 01/2017 In this meeting it was crucially decided to include the announcement of the release of 200 million euros by the Commission for projects of ‘migration flows management’ in Libya in the draft Malta declaration:230LUDLOW, P., “Pre-summit Briefing 2017/1,” Eurocomment, Leuven University Press, 01/2017 this was the effective beginning of the criminal EU’s 2nd Policy, as it was named in the first Communication. The Malta Declaration, signed by the heads of state in February 2017, reflected this strategy and led to an increase of “implementation of the North Africa window of the [EUTF].”231Council of the European Union, COMMISSION STAFF WORKING DOCUMENT – Report from the Commission to the European Parliament and the Council, 01/02/2019, http://europeanmemoranda.cabinetoffice.gov.uk/files/2019/02/ST-5988-2019-ADD-1-EN.pdf, retrieved on 15/04/2021, p. 269.
In early February 2017, the Memorandum of Understanding between Italy and Libya was signed, according to which Italy provided technical and financial support to the Libyan boarder guard and coastguard.232Memorandum of Understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic, signed at Rome 2 February 2017 (English translation published by ASGI, https://www.asgi.it/antidiscriminazione/italy-libya-agreement-the-memorandum-text/, retrieved on 14/06/2025 According to Federica Mogherini, former Italian Minister of Foreign Affairs and by that time High Representative of the Union for Foreign Affairs and Security Policy, the agreement between Italy and Libya "fits perfectly in the European policies built in recent months with Libya.”233DEL RE, G., “Vertice di Malta. Migranti, l’Ue: pieno sostegno all’Italia per l’accordo con la Libia,” Avenire, 03/02/2017, https://www.avvenire.it/attualita/pagine/migranti-dall-ue-pieno-sostegno-all-italia-per-l-accordo-con-la-libia?utm_source, retrieved on 03/06/2025 [/web/20250603191400/https://www.avvenire.it/attualita/pagine/migranti-dall-ue-pieno-sostegno-all-italia-per-l-accordo-con-la-libia]
The Malta Declaration was signed a day after this Memorandum of Understanding.234European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092542/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/] All the members of the European Council participated, including Donald Tusk, Joseph Muscat (Malta), Christian Kern (Austria), Charles Michel (Belgium), Rumen Radev (Bulgaria), Andrej Plenkovic (Croatia), Nicos Anastasiades (Cyprus), Bohuslav Sobotka (Czech Republic), Lars Lokke Rasmussen (Denmark), Juri Ratas (Estonia), Juha Sipila (Finland), François Hollande (France), Angela Merkel (Germany), Alexis Tsipras (Greece), Viktor Orban (Hungary), Enda Kenny (Ireland), Paolo Gentiloni (Italy), Maris Kucinskis (Latvia), Dalia Grubauskaite (Lithuania), Xavier Bettel (Luxembourg), Mark Rutte (Netherlands), Beata Szydlo (Poland), Antonio Costa (Portugal), Klaus Werner Iohannis (Romania), Robert Fico (Slovakia), Miro Cerar (Slovenia), Mariano Rajoy Bery (Spain), Stefan Löfven (Sweden), and Theresa May (United Kingdom).
This event was not an official European Council meeting but rather an informal summit which was hosted by Muscat. 2016 was the deadliest year in terms of drownings of ‘migrants’ attempting to cross the Mediterranean,235International Organization for Migration, Mediterranean Migrant Arrivals Top 363, 348 in 2016; Deaths at Sea 5,079, 01/06/2017, https://www.iom.int/news/mediterranean-migrant-arrivals-top-363348-2016-deaths-sea-5079, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092740/https://www.iom.int/news/mediterranean-migrant-arrivals-top-363348-2016-deaths-sea-5079] but the Malta Declaration chose to focus on and applaud the decrease in arrivals,236European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092542/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/] stating it intends to do more of the same in 2017:
“[O]ver 181,000 arrivals were detected in 2016, while the number of persons dead or missing at sea has reached a new record every year since 2013. With hundreds having already lost their lives in 2017 and spring approaching, we are determined to take additional action to significantly reduce migratory flows along the Central Mediterranean route and break the business model of smugglers, while remaining vigilant about the Eastern Mediterranean as well as other routes.”237European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092542/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/]
This was followed by a call for additional measures focused on Libya. The European Council members expressed they wish to “stabilize Libya”; “build Libya’s capacities to effectively manage migration”; “Train, equip and support the Libyan national coast guard”; implement “complementary EU training programmes”; “create sustainable funding through among other things the Seahorse Mediterranean Network”; and cooperate with IOM and UNHCR to ‘improve’ conditions in Libya.238European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092542/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/]
This informal meeting of the European Council in Malta officially cemented the externalization of European migration policy. Cooperation with Libyan ‘authorities’ and ‘coastguard’ was made official and generalized. The element of conducting search and 'rescue operations in the area was notably missing from the European Council’s position. The European Council members were fully conscious of the consequences their policies incurred yet prioritized its desired “results” of decreasing arrivals over the lives and safety of “migrants”. The combination of the Maltese Presidency of the European Council, the arrival of Gentiloni in the Council and Minitti at the JHA, were decisive factors in leading European policies towards criminality.239LUDLOW, P., “European Council Briefing Note 2017/1,” Eurocomment, Leuven University Press
The first half of 2017 saw Malta and the European Commission take charge of European policies. The Conclusions of February 2017 also expressed support for the Italy-Libya Memorandum of Understanding.240European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 16/09/2020 [https://web.archive.org/web/20200916092542/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/] The following Conclusions in March and June 2017 reiterated support for the Libyan coastguard and demanded a swift implementation.241European Council, Conclusions by the President of the European Council, 09/03/2017, https://www.consilium.europa.eu/media/24113/09-conclusions-pec.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102634/https://www.consilium.europa.eu/media/24113/09-conclusions-pec.pdf] 242European Council, Council Conclusions 22 and 23 June 2017, 23/06/2017, https://www.consilium.europa.eu/media/23985/22-23-euco-final-conclusions.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916093302/https://www.consilium.europa.eu/media/23985/22-23-euco-final-conclusions.pdf] The EEAS was focusing on negotiating diplomatic agreements and developing cooperation with the international organizations like IOM and UNHCR.243LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 10/03/2017, p. 5. Merkel supported the establishment of partnerships with Northern African countries through her diplomatic visits to Egypt, Algeria and Tunisia.244LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 10/03/2017, p. 6. Italy also intensified its bilateral efforts of LYCG training and capacity-building.245LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 10/03/2017, p. 6. During the Council of 9-10 March 2017, Gentiloni explicitly took pride in it, talking about 90 trained Libyan coastguards, and complained about NGOs’ actions that undermined Italy’s strategy by saving migrants.246LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 10/03/2017, p.6.
The European Council meeting of 23 June 2017 once again masked the criminal actions of the European Union and its Libyan proxy through the false language of humanitarian efforts: Mogherini spoke positively about how the EU-trained LYCG had “saved” 23,000 ‘migrants’ since the beginning of 2017,247LUDLOW, P., “European Council Briefing Note 2017/5,” Eurocomment, Leuven University Press, p. 23. by capturing and forcibly transferring them to Libyan camps; The Visegrad Group presented a memorandum on the situation in Libya; Gentiloni reiterated his criticisms against NGOs, who were “aiding and abetting the smugglers”,248LUDLOW, P., “European Council Briefing Note 2017/5,” Eurocomment, Leuven University Press, p. 24. and rejected the possibility of striking a Turkey-like EU-Libya deal as “unrealistic”,249LUDLOW, P., “European Council Briefing Note 2017/5,” Eurocomment, Leuven University Press, p. 24. manifesting awareness to the incomparability between the two third countries in terms of the scale of the breach of international law.
In October 2017, the European Council confirmed the “success” of these measures of support to the LYCG and its aim to remove incentives for “illegal migration.”250European Council, Council Conclusions 19 October 2017, 19/10/2017, https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf, retrieved on 18/06/2024 [https://web.archive.org/web/20240618162727/https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf] For the first time, the ill-treatment of “migrants” in Libya was explicitly mentioned.251European Council, Council Conclusions 19 October 2017, 19/10/2017, https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf, retrieved on 18/06/2024 [https://web.archive.org/web/20240618162727/https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf] Instead of terminating its operations, the European Council called for more funding for the IOM and UNHCR to ensure “humane treatment of migrants.”252European Council, Council Conclusions 19 October 2017, 19/10/2017, https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf, retrieved on 18/06/2024 [https://web.archive.org/web/20240618162727/https://data.consilium.europa.eu/doc/document/ST-14-2017-INIT/en/pdf] Yet international organizations had been present in Libya from the start and failed to improve the situation in Libya.
The discussion itself was directed by Tusk towards supporting Italy’s actions in the Central Mediterranean and meeting “the financial needs necessary to stem the flow of illegal immigrants from Africa” through the EUTF in Libya and other African countries.253LUDLOW, P., “Pre-summit Briefing 2017-6,” Eurocomment, Leuven University Press, 10/2017, p. 2. During this Council, Tusk fully supported Gentiloni and Minitti’s policies, encouraging other Council members to embrace them.254LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 6. Gentiloni’s first of two interventions focused on LYCG training, tensions with NGOs that he framed as leading to a “pull-factor”, and the “extremely difficult” conditions in Libya.255LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 7. He also called for the EU to engage with the smugglers, in order to ensure that they would cease their activity in the Central Mediterranean.256LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 7. Juncker and Mogherini then asked for more funds to further their action in this direction.257LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 7. 15 heads of state or government took part in the discussion, which proved rather consensual and coherent.258LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 8. Macron announced a tripling of France’s contribution to the EUTF and insisted exclusively on security, while Sobotka reminded the Council that the Czech Republic has recently transferred 1 million euros to the EUTF, that were to be used for the training of the LYCG.259LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 9. Tusk proved to be the most important in this and the previous Council: “the draft Conclusions, which emerged virtually intact, were the Presidency’s and the discussion itself proceeded very much along the lines that he wanted it to.”260LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 11.
The December European Council saw Visegrad and Italy getting closer than ever, with Gentiloni praising his talks with V4 leaders261LUDLOW, P., “European Council Briefing Note 2017/7,” Eurocomment, Leuven University Press, p. 6. and their financial contribution of 35 million euros to the EUTF.262KIPP, D., “From Exception to Rule – the EU Trust Fund for Africa,” German Insitute for international and security affairs, 18/12/2018, https://www.swp-berlin.org/en/publication/eu-trust-fund-for-africa/, retieved on 03/09/2024 [https://web.archive.org/web/20230824115736/https://www.swp-berlin.org/en/publication/eu-trust-fund-for-africa/] More generally, what had been agreed on migration policy was not questioned, displaying a large consensus on the priorities and orientations of the members of the Council.
VIII2018
In June 2018, the European Council described the implemented measures as successful in reducing numbers of crossings – despite increased death rates – and additionally called on “all vessels… not [to] obstruct operations of the Libyan coastguard.”263European Council, Conclusions 28 June 2018, 29/06/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102943/https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/] This occurred in a context of rescue NGO criminalization by a multitude of Member States. Aside from preventing NGOs from conducting search and rescue operations, the European Council advocated for “migrants” to be intercepted by the Libyan coastguard even if vessels of European rescue NGOs were closer to those in distress. In line with its previous endeavors, the European Council made all efforts to forcibly and unlawfully return “migrants” to Libya, whilst remaining unaccountable for doing so.
This complex and yet delicate project of conspiring a crime without being caught invoked intense debates and required many changes during the Council. Multiple revision sessions took place, and this time Macron, Merkel and Tranholm-Mikkelsen were largely more involved in the drafting than usual.264LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press Since the draft Conclusions of 19 June 2018, Tusk had made sure that ways to increase the capabilities of the Libyan coastguard would be discussed – which was displayed transparently in the Conclusions as the pledge that the EU “will step up support for (…) the Libyan Coastguard.”265European Council, Conclusions 28 June 2018, 29/06/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102943/https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/] A mini-summit that preceded the Council, organized on Merkel’s behest with Juncker’s support and without the presidency, led to a more politicized and hardened statement.266LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 20.
The evolution throughout the revision sessions of the Council demonstrates the influence of the various actors. During the first one, REV 1, France and Italy proposed the following addition to the draft: “All vessels operating in the Mediterranean must respect the applicable laws and not obstruct operations of the Libyan Coastguard.”267LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 20. This amendment was reinforced by Muscat during REV 2 with even more aggressive language towards NGOs, as he pushed for the extra addition of these sentences: “Vessels should abide by the instructions given by the appropriate Search and Rescue authorities, the Libyan coastguard being the official competent Search and Rescue authority in the Libyan Search and Rescue Region. Member states should take all necessary measures in case of violations.”268LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 21. During REV 3, Muscat’s amendment was rejected, mostly thanks to Sanchez’s efforts, to come back to the Franco-Italian amendment as a point of consensus.269LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 21. Even with this last “leveling down”, this part of the Conclusions is a transparent warning towards NGOs and an attempt to intimidate them, legitimizing the coercive policies already conducted by Member States.
Interestingly, the Italian government had vetoed its funding for the EU-Turkey deal unless other Member States refunded the EUTF, from which Italy drew funding for its activities in Libya,270LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 21. evidencing the extent to which the policy in the Central Mediterranean was dependent on EU rather than Italian resources. Paragraph 7 on funding ultimately agreed on transferring 500 million euros from the 11th EDF reserve to the EUTF, and called for member states’ further contributions to it.271European Council, Conclusions 28 June 2018, 29/06/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102943/https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/] para. 7. The European Council also re-emphasized the need to “eliminate the incentive to embark on perilous journeys” by a new approach to the disembarkation of people saved in search and rescue operations, and by exploring the potential of regional disembarkation platforms in cooperation with third countries.272European Council, Conclusions 28 June 2018, 29/06/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102943/https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/] para 5. Further emphasizing its priority to stop “migrants” at all costs and demonstrating their inherent dehumanization, it specified that arrivals had decreased by 95%, used the notion “illegal migration” to describe all “migrants” and emphasized the need for a broader Frontex mandate and reinforcement of its capacities.273European Council, Conclusions 28 June 2018, 29/06/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917102943/https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/20180628-euco-conclusions-final/] para 7.
Later Conclusions that year restated that the current migration policy should be continued,274European Council, European Council conclusions, 18 October 2018, 18/10/2018, https://www.consilium.europa.eu/en/press/press-releases/2018/10/18/20181018-european-council-conslusions/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917105428/https://www.consilium.europa.eu/en/press/press-releases/2018/10/18/20181018-european-council-conslusions/] and there is no further mention of migration in the Mediterranean in the 2019 or 2020 Conclusions. Reviewing the developments within the European Council, Donald Tusk seems to have been the ideological driver, with a unilateral approach centered exclusively on the repression of migration movements as a threat that should be fought at all costs. He significantly steered the European Council’s work and more generally European policies throughout his presidency, due to the weakness of the Commission in counterweighting the Council, as well as the Member States’ inability to offer alternative solutions. Tusk thus paved the way for the toughening and criminalization of European policies, alongside Gentiloni and Minitti and with the support of Merkel, the V4, and Muscat. The Netherlands and Luxembourg were less proactive, but their punctual support during their respective presidencies also proved institutionally important.
No Interviewee, public source or document shows the existence of any effort from one of the institutional structures of the European Council to limit, counter or otherwise resist the adoption of criminal policies, including from its General Secretariat and its Legal Service. On the contrary, the above-outlined activities illustrate that all actors participated in the “consensus building” that triggered the death of tens of thousands of people and the victimization and exposure to crimes against humanity of 120,000 others.
DKey individuals
Suspects
-
Matteo Renzi>
02/2014–12/2016
ItalyThe European CouncilPrime Minister
-
Donald Tusk>
2007–2014
Prime Minister
2014–2019
The European CouncilPresident
-
Joseph Muscat>
2013–2020
MaltaPrime Minister
-
Sebastian Kurz>
-
Andrej Babis>
2017–2021
Visegrad GroupPrime Minister, Czech Republic
-
Emmanuel Macron>
2017–Present
FrancePresident
-
Angela Merkel>
2005–2021
GermanyChancellor
-
Mark Rutte>
2010–2023
The NetherlandsPrime Minister
-
Beata Szydlo>
2015–2017
Visegrad GroupPrime Minister of Poland
-
Uwe Corsepius>
2015–2022
GermanySherpa
-
Hubert Legal>
2011–2019
Director-General of Legal Services
-
Piotr Serafin>
2014–2019
The European CouncilChief of Staff of Tusk
-
Victor Orbán>
2010–Present
Prime Minister of Hungary
-
Paolo Gentiloni>
-
Mariano Rajoy>
2011–2018
SpainPrime Minister
-
Giuseppe Conte>
2018–2021
ItalyPrime Minister
-
François Hollande>
2012–2017
FrancePresident
Involved
-
José Manuel Barroso>
2004–2014
European CommissionPresident of the European Commission
-
Antonio Costa>
11/2015–2024
The European CouncilPrime Minister of Portugal
-
Dalia Grubauskaite>
07/2009–07/2019
The European CouncilPresident of Lithuania
-
Enda Kenny>
03/2011–06/2017
The European CouncilPrime Minister of Ireland
-
Ewa Kopacz>
09/2014–11/2015
The European CouncilVisegrad GroupPrime Minister
-
Klaus Werner Iohannis>
12/2014–2025
The European CouncilPresident of Romania
-
Maris Kucinskis>
02/2016–01/2019
The European CouncilPrime Minister of Latvia
-
Miro Cerar>
09/2014–09/208
The European CouncilPrime Minister
-
Nicos Anastasiades>
02/2013–2023
The European CouncilPresident of Cyprus
-
Robert Abela>
2020–
MaltaThe European CouncilPrime minister
-
Werner Faymann>
12/2008–05/2016
AustriaChancellor
-
Xavier Bettel>
12/2013–2023
The European CouncilPrime Minister of Luxembourg
-
Alexis Tsipras>
01/2015–07/2019
The European CouncilPrime Minister of Greece
-
Andrej Plenkovic>
10/2016–
The European CouncilPrime Minister of Croatia
-
Bohuslav Sobotka>
01/2014–11/2019
Visegrad GroupThe European CouncilPrime Minister of Bulgaria
-
Brigitte Bierlein>
06/2019–01/2020
AustriaChancellor
-
Charles Michel>
2019–2024
The European CouncilPresident of the European Council
-
Christian Kern>
05/2017–12/2017
AustriaChancellor
-
Hartwig Löger>
05/2018–06/2019
AustriaChancellor
-
Herman van Rompuy>
12/2009–11/2014
The European CouncilPresident of the European Council
-
Jeppe Tranholm-Mikkelsen>
07/2015–05/2022
The European CouncilCouncil of the European UnionSecretary General of General secretariat of the Council of the European Union
-
Juha Sipila>
05/2015–06/2019
The European CouncilPrime Minister of Finland
-
Juri Ratas>
10/2016–2021
The European CouncilPrime Minister of Estonia
-
Lars Lokke Rasmussen>
06/2015–06/2019
The European CouncilPrime Minister of Denmark
-
Mateusz Morawiecki>
12/2017–2023
The European CouncilVisegrad GroupPrime Minister of Poland
-
Pedro Sánchez Pérez-Castejón>
2018–
SpainThe European CouncilPresident of the Government
-
Peter Pellegrini>
03/2018–2020
The European CouncilVisegrad GroupPrime Minister of Slovakia
-
Reinhold Mitterlehner>
05/2016–06/2016
The European CouncilAustriaChancellor
-
Robert Fico>
04/2012–03/2018
The European CouncilVisegrad GroupPrime Minister
Related
- 1“Refugee mistreatment in Libyan trafficking camps,” DW, 29/01/17, https://www.dw.com/en/libyan-trafficking-camps-are-hell-for-refugees-diplomats-say/a-37318459, retrieved on 26/08/24 [https://web.archive.org/web/20240926161510/https://www.dw.com/en/libyan-trafficking-camps-are-hell-for-refugees-diplomats-say/a-37318459]
- 2European Council, Council Conclusions 17 and 18 March 2016, 18/03/2016 https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf, retrieved on 08/03/2021 [https://web.archive.org/web/20240929155757/https://data.consilium.europa.eu/doc/document/ST-12-2016-INIT/en/pdf] , p. 3.
- 3European Council, The President’s role, 17/08/2020, https://www.consilium.europa.eu/en/european-council/president/role/, retrieved on 16/09/2020 [https://web.archive.org/web/20200915123143/https://www.consilium.europa.eu/en/european-council/president/role/]
- 4European Council, How the European Council works, www.consilium.europa.eu/en/european-council/how-the-european-council-works/, retrieved on 16/09/24 [https://web.archive.org/web/20240718152650/https://www.consilium.europa.eu/en/european-council/how-the-european-council-works/]
- 5Ibid.
II
Council of the European Union
AExecutive Summary
The Council of the European Union is one of the forums in which the perpetration of crimes against humanity in the Mediterranean and Libya were planned and carried out. The Member States are represented at every level of the decision-making process, from the inception and design of the policy to the final authorization and subsequent implementation of the decisions of the body. The Council and its supporting bodies appear to have functioned as a vehicle to concretize and carry out the strategic direction impulsed by the European Council and in line with the Member State hierarchization of heads of state and government and ministers.
The Council is led by a rotating Presidency of one Member State, changing every six months. During the relevant period, several key Member States assumed the Presidency, providing them a broad arena to push forward their political agenda, notably through the Presidency programme, the trio-programme, and multilateral meetings preparing forthcoming Council meetings. The Presidencies exerted considerable influence on the agenda and policy objectives of the Council, pursuing a migration policy that would remain coherent with the impulsion of the European Council, sometimes outpacing them, to prevent “migrants” from reaching European shores at all costs.
The Council was not officially involved in ending Mare Nostrum. But evidence show that, when assuming the Presidency, Italy requested at multiple levels for a Europeanization of the operation, which suggests the matter may have been discussed within Council structures, and informal ministerial discussions have taken place at the behest of French Interior Minister Cazeneuve. The Council, led by Italian Interior Minister Alfano, neither initiated the subsequent Operation Triton, which was conceived by Frontex and Italy. However, at a meeting on 10 October 2014, the Council endorsed the operation as part of a general policy to “better manage migratory flows" and encouraged Member States to cooperate with Frontex to consolidate its presence in the Mediterranean through the deployment of Operation Triton. A series of meetings organized ahead of the Council’s initiatives and meetings evidences the intent to use the body as a central tool to shift the European Union and Member State policies. The Council conclusively supported the deprioritization of search and rescue and accepted the withdrawal of ships from critical rescue areas to deter “migrants” from reaching Europe.
The military operation Sophia was launched by the Council itself and planned by the Political and Security Committee. All Member States agreed to the instigation of the operation without making use of their veto power. After Operation Sophia was launched, the Committee continued giving strategic directions to the operation, maintaining a high degree of operational knowledge at all levels.
The Council had sought to build a system of border externalization already in 2013 with the creation of EUBAM Libya. This project envisioned Libya as a partner in “border management” and sought to build its capacities to support this mission. These efforts reached their peak in June 2016 when - after preparation by the Political and Security Committee - another decision by the European Council extended the mandate of Operation Sopha to the training of the Libyan‘coastguards’. This decision too was taken in unanimity. Several pieces of evidence prove that the Council and its preparatory bodies were fully conscious of the horrific conditions faced by “migrants” in Libya, the criminal elements within the Libyan ‘coastguard’, the fact that Libya could not be considered a safe place for disembarkation, and that the training of the Libyan ‘coastguard’ to undertake such actions is in breach of international law.
Not only the approval but also the subsequent renewal of the training of the Libyan ‘coastguards’ proves the Council’s (and its relative bodies) conscious acceptance of the crimes committed against “migrants” in Libya, as a direct consequence of the prevention of their arrival to Europe and interception in the Mediterranean. The Romanian and Finnish Council Presidencies themselves informed the entire Council of the horrific conditions faced by “migrants” in Libya upon their interceptions by the Libyan ‘coastguards’.
But this information led to no policy change. The Council pushed for a further reduction of European rescue assets in the Central Mediterranean and expansion of the capacities of the Libyan ‘coastguard’. As an EU official who is implicated in the process admitted, the Council “let people be rescued by the Libyan coastguard knowing that their fate in Libya is catastrophic.”275Interviewee I2
BOrganizational Structure
IGeneral Overview
The Council of the European Union (also referred to as the Council) is one of seven institutions, as established by article 13 of the Treaty on European Union (“TEU”). The Council is composed of a representative of each Member State at ministerial level who may commit their respective governments and cast its vote.276Consolidated version of the Treaty on European Union, article 16(2), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] The Council has five main tasks.277Council of the EU, The Council of the European Union, 17/07/2019, https://www.consilium.europa.eu/en/council-eu/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143917/https://www.consilium.europa.eu/en/council-eu/] First, it negotiates and adopts legislative acts jointly with the European Parliament following a legislative proposal submitted by the European Commission.278Consolidated version of the Treaty on European Union, article 16(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Second, the Council coordinates Member States’ policies in specific fields by adopting policy frameworks, setting out priorities for cooperation between Member States or drawing guidelines and recommendations for Member States.279Consolidated version of the Treaty on European Union, article 16(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Third, the Council develops the EU’s Common Foreign and Security Policy (“CFSP”) by elaborating the EU’s external action and ensuring, together with the High Representative of the Union for Foreign Affairs and Security Policy, the unity, consistency and effectiveness of the EU's external action.280Consolidated version of the Treaty on European Union, article 16(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Importantly, the Common Security and Defense Policy (“CSDP”) of the EU is an integral part of the CFSP.281Consolidated version of the Treaty on European Union, article 16(6) and 22, http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Fourth, based on a proposal of the Commission, the Council can also conclude international agreements. Finally, the Council adopts the EU budget jointly with the European Parliament.282Consolidated version of the Treaty on European Union, article 42(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
In order to fulfill its mandate, the Council meets regularly in ten different configurations, depending on the matter being discussed. The ten configurations are the following: Agriculture and Fisheries; Competitiveness; Economic and Financial Affairs; Education, Youth, Culture and Sport; Employment, Social Policy, Health and Consumer Affairs; Environment; Foreign Affairs; General Affairs; Justice and Home Affairs; and Transport, Telecommunications and Energy.283Council of the EU, Council Configurations, 25/08/2020, https://www.consilium.europa.eu/en/council-eu/configurations/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144150/https://www.consilium.europa.eu/en/council-eu/configurations/] The precise membership of these configurations varies according to the topic under consideration. When discussing foreign policies, for instance, the Council will meet in its Foreign Affairs configuration formed by the 27 national ministers whose portfolio includes this policy area – usually Foreign Affairs Ministers. Importantly, each Council meeting is chaired by the minister of the Member State holding the 6-month Council Presidency, with the exception of the Foreign Affairs Council which is chaired by the High Representative of the Union for Foreign Affairs and Security Policy.
The council votes by simple majority, qualified majority or unanimously depending on the matter at stake. When a matter is considered by Member States to be sensitive, the Council will have to vote unanimously in order for the decision to be adopted.284Council of the EU, Unanimity, 28/01/2020, https://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150035/https://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/] This gives a de facto veto power to every Minister sitting in a Council meeting where the issue discussed requires unanimity to be adopted. As a general rule, any matter of CFSP discussed at the Foreign Affairs Council has to be adopted unanimously by all Ministers.285Consolidated version of the Treaty on European Union, article 31(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Unanimity is also required for certain provisions in the field of Justice and Home Affairs when the matter is deemed sensitive.286Council of the EU, Unanimity, 28/01/2020, https://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150035/https://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/]
The Justice and Home Affairs configuration and the Foreign Affairs configuration of the Council of the EU are the two configurations that have adopted or endorsed policies subsequently implemented in the Mediterranean Sea to stem the migration ‘flows’ to Europe.
IIThe Justice and Home Affairs Council Configuration
The Justice and Home Affairs (“JHA”) Council adopts policies inter alia in the domains of asylum and immigration policy, external border management, judicial cooperation in both civil and criminal matters, and police cooperation.287MONAR, J., “Justice and Home Affairs” in Jones, E., et. Al. (eds), The Oxford Handbook of the European Union, Oxford, Oxford University Press, 2012, in print. p. 1 The JHA Council is made up of Justice and Interior/Home Affairs Ministers from all Member States. Justice Ministers will sit at the Council when judicial cooperation and fundamental rights policies are decided, while Interior Ministers will sit at the Council when migration, external border management and police cooperation policies are adopted.288Council of the EU, Justice and Home Affairs Council Configuration (JHA), https://www.consilium.europa.eu/en/council-eu/configurations/jha/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145324/https://www.consilium.europa.eu/en/council-eu/configurations/jha/]
IIIiii) The Foreign Affairs Council Configuration
The Foreign Affairs Council is responsible for the EU’s external action which includes Common Foreign and Security Policy (CFSP), development cooperation and defense policy.289Council of the EU, Foreign Affairs Council Configuration (FAC), https://www.consilium.europa.eu/en/council-eu/configurations/fac/, retrieved on 24/09/2020 [https://web.archive.org/web/20200809082256/https://www.consilium.europa.eu/en/council-eu/configurations/fac/] It is composed of the Foreign Affairs Ministers from all EU Member States and is chaired by the High Representative of the Union for Foreign Affairs and Security Policy who is assisted by the European External Action service (EEAS).290Consolidated version of the Treaty on European Union, article 18(3) and 27(3), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] Importantly, pursuant to Article 43 (2) of the TEU, the Council – usually its Foreign Affairs configuration – can launch EU civil and military crisis management operations, in pursuit of EU’s objectives of security and peace.291Consolidated version of the Treaty on European Union, article 42, 43(2) and 38, http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
IVPresidency of the Council of the European Union
Each Council meeting is chaired by the Minister of the Member State holding the 6-month rotating Council Presidency, except for the Foreign Affairs Council meetings which are chaired by the High Representative of the Union for Foreign Affairs and Security Policy.292Consolidated version of the Treaty on European Union, article 16(9), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
The Presidency of the Council is held by a national government (not a specific individual) and is responsible for convening Council meetings at its own initiative or at the request of one Member State or the Commission,293Consolidated version of the Treaty on the Functioning of the European Union, Article 237, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150412/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012E%2FTXT] chairing meetings, determining its agendas, setting a work program and facilitating dialogue at the Council meetings and with other EU institutions, especially the Commission and the European Parliament.294Council of the EU, The Presidency of the Council of the EU, 01/07/2020, https://www.consilium.europa.eu/en/council-eu/presidency-council-eu/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150750/https://www.consilium.europa.eu/en/council-eu/presidency-council-eu/] The Presidency of the Council also organizes informal meetings in Brussels and in the country of the presidency.
It can be inferred that the power of the rotating Presidency depends on the active engagement of the Member State in charge and their relation to the Permanent Presidency. The power dynamics between the permanent Presidency and the rotating Presidency is somewhat unclear. Yet, given the highly politicized aspect of migration issues, the rotating Presidencies gained considerable power during the relevant time frame because it was an issue Member States were unwilling to cede to internal EU structures. Since the 2009 Lisbon Treaty, a “trio Presidency” is set-up between the past, current and future Member States holding the Presidency. Together, they set up the long-term goals and issues to be addressed over 18 months.295Secrétariat Général, The Presidency of the Council of the EU, https://www.consilium.europa.eu/fr/documents-publications/library/library-blog/posts/the-presidency-of-the-council-of-the-eu/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924151218/https://www.consilium.europa.eu/fr/documents-publications/library/library-blog/posts/the-presidency-of-the-council-of-the-eu/]
The rotating Presidency of the Council during the 2014-2019 period was held as follows: Greece (January – June 2014)296Hellenic Republic, The Hellenic Presidency of the Council of the European Union - challenges and results, https://www.mfa.gr/brussels/en/permanent-representation-eu/greece-in-the-eu/the-hellenic-presidency-of-the-council-of-the-european-union-challenges-and-results.html, retrieved on 28/02/2018 [https://web.archive.org/web/20220520193847/https://www.mfa.gr/brussels/en/permanent-representation-eu/greece-in-the-eu/the-hellenic-presidency-of-the-council-of-the-european-union-challenges-and-results.html; Italy (July-December 2014)2972014 Italian Presidency of the Council of the European Union, http://italia2014.eu/en/, retrieved on 24/09/2020 [https://web.archive.org/web/20200907111625/http://italia2014.eu/en/]; Latvia (January – June 2015)298Latvijas prezidentūras Eiropas Savienības Padomē sekretariāts, EU Presidency, https://web.archive.org/web/20140110101820/http://www.eu2015.lv/en/eu-presidency, retrieved on 10/01/2014; Luxembourg (July-December 2015)299Le gouvernement du Grand-Duché de Luxembourg, Presidency of the Council of the European Union, http://www.eu2015lu.eu/en/index.html, retrieved on 24/09/2020 [https://web.archive.org/web/20200924151811/http://www.eu2015lu.eu/en/index.html]; Netherlands (January – June 2016)300The Dutch Government, Nederlands EU-voorzitterschap 2016, https://www.rijksoverheid.nl/documenten/kamerstukken/2016/07/07/kamerbrief-over-resultaten-en-uitvoering-van-het-nederlandse-eu-voorzitterschap#, retrieved on 25/02/2025, [https://web.archive.org/web/20240911161659/https://www.rijksoverheid.nl/documenten/kamerstukken/2016/07/07/kamerbrief-over-resultaten-en-uitvoering-van-het-nederlandse-eu-voorzitterschap#:~:text=Nederlands%20voorzitterschap%20EU&text=Dat%20gebeurt%20op%201%20januari,en%20met%2031%20december%202029]; Slovakia (July-December 2016)301Ministry of Environment of the Slovak Republic, Slovak Presidency 2016, https://www.minzp.sk/en/eu-affairs-international-agenda/eu-affairs/the-presidency-council-eu/slovak-presidency-2016/?utm, retrieved on 24/09/2020; Malta (January – June 2017)302European Olympic committees, Programme of the Maltese Council Presidency: January - June 2017,https://www.euoffice.eurolympic.org/programme-maltese-council-presidency-january-june-2017/?utm, retrieved on 24/09/2020; Estonia (July-December 2017)303Estonian Presidency of the Council of the European Union, retrieved on 30/12/2018 [https://web.archive.org/web/20181230050220/https://www.eu2017.ee/]; Bulgaria (January – June 2018)304Bulgarian Presidency of the Council of the European Union, https://eu2018bg.bg/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152905/https://eu2018bg.bg/]; Austria (July-December 2018)305Austrian Presidency of the Council of the European Union, http://www.eu2018.at/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153030/https://www.eu2018.at/]; Romania (January – June 2019)306Romanian Presidency of the Council of the European Union, http://www.romania2019.eu/, retrieved on 24/09/2020; Finland (July-December 2019).307Finland‘s Presidency of the Council of the European Union, https://eu2019.fi/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153310/https://eu2019.fi/en/frontpage] Key countries pursuing highly restrictive migration policies and border externalization at all costs assumed the Presidency during this time, including Italy, Slovakia, Malta, Bulgaria, and Austria.
VThe General Secretariat of the Council
The General Secretariat of the Council (“General Secretariat”) provides administrative, legal, and advisory support to both the European Council and the Council of the EU, as well as the latter’s presidency, the Permanent Representatives Committee (Coreper) and the other committees and working parties of the Council of the EU.308General Secretariat, The General Secretariat of the Council, https://www.consilium.europa.eu/en/general-secretariat/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153526/https://www.consilium.europa.eu/en/general-secretariat/] Its main objectives are “to advise and coordinate the work of the two Councils, support the Presidency of the Council in negotiations within the Council and with other institutions, provide logistical support for meetings and to prepare agendas, reports and minutes of meetings.”309General Secretariat, The General Secretariat of the Council, https://www.consilium.europa.eu/en/general-secretariat/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153526/https://www.consilium.europa.eu/en/general-secretariat/][1]
VIDirectorate-General for Legal Service
The Legal Service participated in every step concerning Operation Sophia.310Interviewee I70 Most legal questions were discussed at the Working Groups level as well as the Political and Security Committee and were usually cleared by the time they reached the level of Coreper or the Council itself.311Interviewee I70 In these cases, DG JUR is tasked with ensuring decisions are legally sound and would not be overturned in court, rather than assert a final opinion on a decision’s legality.312Interviewee I70 These assessments are based on compliance with EU law which includes obligations under international law.313Interviewee I70 Human rights are a part of these considerations and questions of respect of the non-refoulement principle and the different jurisdictional statuses of waters in the Mediterranean were discussed internally by the Legal Service.314Interviewee I70 These internal discussions prepared the DG’s interventions in the Council.315Interviewee I70 According to one source there likely was not a written opinion on Sophia.316Interviewee I70 The oral interventions did however lead to a change from the decision’s initial design.317Interviewee I70 It is unclear how extensive this change was and what it entailed.
VIICouncil of the EU Informal Meetings
Each Presidency of the Council can organize informal meetings of any Council configurations. It is particularly common for the JHA Council configuration and the Foreign Affairs Council configuration. Usually, at the beginning of each Presidency, an informal meeting of Ministers is scheduled by the Presidency in order to discuss matters important at that time. However, it can be organized at any point during the Presidency to offer a flexible negotiation forum. There is no formal agenda, there can be no Council Conclusions, no official outcome nor any public record save for some occasional information or press releases made available online. During those informal meetings, any topic – decided by the Presidency - can be addressed in full secrecy. It allows the Presidency to have an overview of the position of the different Ministers on a specific topic. Depending on the ability of the Presidency to prepare those informal meetings, they can be instrumental in preparing and framing the formal meeting.
For instance, if the Commission has recently published a communication on a specific policy, the informal meetings can be the first instance where Ministers can discuss the Commission’s proposal. On the basis of informal meetings’ discussions, the Presidency can adapt the structure of the formal discussion which will focus on particular aspects on which Ministers’ positions diverged. In general, these informal meetings precede meetings of the Council preparatory bodies (see below) to allow Member States officials of the preparatory bodies to have indications on their Ministers’ position on a matter.318Interviewee I1
VIIIThe Coreper
Coreper stands for the ‘Committee of the Permanent Representatives of the Governments of the Member States to the European Union’. It is the Council’s main preparatory body and is composed of the permanent representatives of each Member States who express their governments’ position.319Consolidated version of the Treaty on European Union, article 16(7), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]320Consolidated version of the Treaty on the Functioning of the European Union, article 240, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150412/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012E%2FTXT] It is tasked with finding agreements and compromises amongst all the Member States permanent representatives that are then submitted to the Council for adoption. With very few exceptions, all items to be included in a Council’s meeting agenda must have first been examined by the Coreper.321Council of the EU, Coreper II, 08/05/2019, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155821/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/] However, it does not have the competence to take decisions except on restricted procedural matters, and any agreement reached within the Coreper can be renegotiated at the Council. There are two configurations of the Coreper: Coreper I and II. The Coreper I is not relevant within the scope of this Communication. Coreper II prepares the work of multiple Councils, including the Justice and Home Affairs Council and the Foreign Affairs Council.322Council of the EU, Coreper II, 08/05/2019, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155821/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/]
The Coreper should not be seen as a mere formality through which draft policies must go through before being submitted to the Council. Especially when it comes to sensitive matters, including migration, on which opinions among Member States diverge considerably, the negotiations taking place during the Coreper’s meetings are essential to reach a consensus prior to Council sessions.323Interviewee I1 The work of the Coreper II is prepared by the Antici group, an informal group of high ranking diplomats from the permanent representations in Brussels, which helps to form an initial idea of the various positions taken at the Coreper II meeting.324Council of the EU, Coreper II, 08/05/2019, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155821/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/coreper-ii/]
IXThe European External Action Service
The High Representative for Foreign Affairs and Vice-President of the Commission oversees the European External Action Service (EEAS), the EU’s diplomatic branch.325European Union External Action Service, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085540/https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en] The High Representative during the relevant time frame was, successively, Catherine Ashton (December 2009 – November 2014), Federica Mogherini (November 2014 – November 2019), and Joseph Borrell (December 2019 –). The EEAS represents the implementing element of foreign policy-making in the EU.326European Union External Action Service, Working with other EU institutions, 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085829/https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en] Imperatively, it is interconnected with both the Council and the Commission and can be considered a “hybrid-institution”.327LASSCHE, D., “The EU Military Staff: a frog in boiling water?,” Military Spectator, 10/08/2017, https://www.militairespectator.nl/thema/internationale-samenwerking/artikel/eu-military-staff-frog-boiling-water, retrieved on 09/09/2020 [https://web.archive.org/save/https://www.militairespectator.nl/thema/internationale-samenwerking/artikel/eu-military-staff-frog-boiling-water] This hybrid nature resulted from the “merger of the external relations departments of the Council and relevant international relations departments of the European Commission.”328LASSCHE, D., “The EU Military Staff: a frog in boiling water?,” Military Spectator, 10/08/2017, https://www.militairespectator.nl/thema/internationale-samenwerking/artikel/eu-military-staff-frog-boiling-water, retrieved on 09/09/2020 [https://web.archive.org/save/https://www.militairespectator.nl/thema/internationale-samenwerking/artikel/eu-military-staff-frog-boiling-water] It is constantly engaged with the Member States’ ministries of foreign affairs and defense as well as the Council, Parliament, and Commission.
Within the process of policy direction and principles being laid out by the European Council and subsequently transformed into concrete policies by the Council of the EU,329European Union External Action Service, Working with other EU institutions, 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085829/https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en] the EEAS is extensively involved in both planning and implementing foreign policy decisions, especially with regards to the Common Security and Defense Policy (CSDP). CSDP decisions taken by the Council are prepared by bodies which are both largely preparatory bodies of the Council as well as part of the EEAS structure and under the authority of the High Representative. The Foreign Affairs Council itself is also chaired by the High Representative.330European Union External Action Service, Working with other EU institutions, 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085829/https://eeas.europa.eu/headquarters/headquarters-homepage/3647/working-other-eu-institutions_en] In such a tangled relationship, the EEAS plays a preponderant role of agenda-setting, planning, and implementation.
Another key function of the EEAS is to coordinate the work of EU delegations. These delegations “are responsible for all policy areas of the relationship between the EU and the host country” and provide “analyse[s] and report[s] on political developments in their host country.”331European Union External Action Service, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085540/https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en] Its “operational expenditures” are paid for by the Commission’s Foreign Policy Instruments which are also overseen by the High Representative.332European External Action Service, Foreign policy instruments, 27/11/2019, https://eeas.europa.eu/diplomatic-network/foreign-policy-instruments/2084/foreign-policy-instruments_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909090703/https://eeas.europa.eu/diplomatic-network/foreign-policy-instruments/2084/foreign-policy-instruments_en]
The EEAS’ “daily work” is supervised by a Secretary-General who reports to the High Representative. Pierre Vimont filled this position until February 2015 and was succeeded by Alain Le Roy (February 2015 – August 2016), and Helga Schmid (December 2016 –). The Secretary-General is assisted by three Deputy Secretaries-General responsible for economic and global issues; political affairs; and CSDP and crisis response. These oversee a number of “geographical and thematic directorates.”333European Union External Action Service, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085540/https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en] Before becoming the Secretary-General, Helga Schmid was the Deputy Secretary-General for political affairs until August 2016. Jean-Christophe Belliard subsequently assumed the position334BUTUCEA, M. C., “Appointment of Mr. Jean-Christophe BELLIARD as the new Deputy Secretary General for Political Affairs – Political Director for the EEAS,” Diplomatic Intelligence, 09/08/2016, http://www.diplomaticintelligence.eu/diplomatic-news/1939-appointment-of-mr-jean-christophe-belliard-as-the-new-deputy-secretary-general-for-political-affairs-political-director-for-the-eeas, retrieved on 09/09/2020 [https://web.archive.org/web/20200909091148/http://www.diplomaticintelligence.eu/diplomatic-news/1939-appointment-of-mr-jean-christophe-belliard-as-the-new-deputy-secretary-general-for-political-affairs-political-director-for-the-eeas] until at least September 2019.335“EEAS Deputy Secretary-General ‘Observes Borderisation’ in Gugutiantkari,” Tbilisi, Civil.ge, 08/09/2019, https://civil.ge/archives/319453, retrieved on 09/09/2020 [https://web.archive.org/web/20200608110905/https://civil.ge/archives/319453] This Deputy Secretary-General oversees the Political and Security Committee, as well as the directorate for human rights, global and multilateral issues, and the North Africa and the Middle East directorate. Maciej Popowski was the Deputy Secretary-General for the CSDP and security until November 2015.336European Council, Maciej POPOWSKI, https://ec.europa.eu/info/sites/info/files/cv-maciej-popowski_en_0.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20190528022122/https://ec.europa.eu/info/sites/info/files/cv-maciej-popowski_en_0.pdf] Pedro Serrano succeeded him and remained in office until at least July 2019.337EU Naval Force – Somalia Operation ATALANTA, EEAS Deputy Secretary General Pedro Serrano visits EU NAVFOR’s Maritime Security Centre Horn of Africa (MSCHOA), 05/07/2019, https://eunavfor.eu/eeas-secretary-general-pedro-serrano-visits-eu-navfors-maritime-security-centre-horn-of-africa-mschoa/, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092447/https://eunavfor.eu/eeas-secretary-general-pedro-serrano-visits-eu-navfors-maritime-security-centre-horn-of-africa-mschoa/] The Deputy Secretary-General for the CSDP and security is in charge of the “Common Security and Defence Policy (CSDP) planning and crisis response departments.”338European Union External Action Service, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en, retrieved on 09/09/2020 [https://web.archive.org/web/20200909085540/https://eeas.europa.eu/headquarters/headquarters-homepage/82/about-european-external-action-service-eeas_en] They also ensure liaison with EU military staff. Both of these deputies were key actors in the policies discussed in this Communication and supervised the units which drafted them.
XCouncil Preparatory Bodies
Before permanent representatives of EU Member States can reach an agreement on a policy or legislative act to be submitted to the Council for validation, a considerable number of highly specialized working parties and committees, known as the “Council preparatory bodies”, prepare the work of the Coreper.339The full list of preparatory bodies is accessible online. See: General Secretariat of the Council, List of Preparatory Bodies, 17/12/2019, https://data.consilium.europa.eu/doc/document/ST-15119-2019-INIT/en/pdf, retrieved on 18/06/2020 [https://web.archive.org/web/20200618032627/https://data.consilium.europa.eu/doc/document/ST-15119-2019-INIT/en/pdf] Some of these preparatory bodies have been established by EU Treaties like the Political and Security Committee,340Consolidated version of the Treaty on European Union, article 38, http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj] others have been established by a Council’s act including the European Union Military Committee (EUMC)341The European Union Military Committee was established by: Council Decision 2001/79/CFSP of 22 January 2001, OJ L 27, 30.1.2001. and the Committee for Civilian Aspects of Crisis Management (CivCom),342The CivCom was established by a Council Decision. See: Council of the EU, 2000/354/CFSP: Council Decision of 22 May 2000 setting up a Committee for civilian aspects of crisis management, 27/05/2000, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32000D0354, retrieved on 30/09/2020 [https://web.archive.org/web/20200930072108/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%253A32000D0354] whilst many have been established by the Coreper itself.343EEAS, European Union Military Committee (EUMC), https://eeas.europa.eu/topics/common-security-and-defence-policy-csdp/5428/european-union-military-committee-eumc_en, retrieved on 15/04/2021 [https://web.archive.org/web/20210120173152/https://eeas.europa.eu/topics/common-security-and-defence-policy-csdp/5428/european-union-military-committee-eumc_en]
Ad hoc committees can be created for a specific purpose and cease to exist once their task is fulfilled. Each Council configuration’s work is prepared by preparatory bodies specialized in the relevant policy fields. For instance, depending on the issue at stake, the work of the Justice and Home Affairs Council may be prepared by the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), the Working Party on Integration, Migration and Expulsion and/or the Working Party on Frontiers. The individual composition of the 150 individual preparatory instances of the Council varies greatly: the preparatory bodies can be composed of Chiefs of defense of the Member States344Council of the European Union, Politico-Military Group (PMG), 09/11/2017, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093743/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/] or representatives from national security services.345Council of the European Union, Politico-Military Group (PMG), 09/11/2017, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093743/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/]
Decisions taken by the Council which concern the Common Security and Defence Policy are prepared by bodies which are both largely preparatory bodies of the Council as well as part of the EEAS structure and under the authority of the High Representative. These include the Political and Security Committee, the European Union Military Committee, the Committee for Civilian Aspects of Crisis Management, the Politico-Military Group, the EU Military Staff, Civilian Planning and Conduct Capability, and the Crisis Management Planning Directorate.
The Politico-Military Group, chaired by a High Representative office member,346Council of the European Union, Politico-Military Group (PMG), 09/11/2017, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093743/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/politico-military-group/] is tasked with the “political aspects of EU military and civil-military issues, including concepts, capabilities and operations and missions.”347European External Action Service, Common Security and Defence Policy (CSDP) structure, instruments, agencies , 08/07/2016, https://eeas.europa.eu/headquarters/headquarters-Homepage/5392/common-security-and-defence-policy-csdp-structure-instruments-agencies_ka#The+Crisis+Management+and+Planning+Directorate+%2528CMPD%2529, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093609/https://eeas.europa.eu/headquarters/headquarters-Homepage/5392/common-security-and-defence-policy-csdp-structure-instruments-agencies_ka] On this basis, it makes recommendations to the Political and Security Committee. It further drafts Council conclusions and oversees “effective implementation” of the Political and Security Committee’s decisions as well as third country cooperation. In regard to the Commission, it reviews its “legislative proposals…in its field of expertise” and subsequently send it to the Council.[348EU Monitor, Politico-Military Group (PMG), https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vh7ej5swwyyw, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093831/https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vh7ej5swwyyw] All Member States are represented in this group which is staffed by experts.349EU Monitor, Politico-Military Group (PMG), https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vh7ej5swwyyw, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093831/https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vh7ej5swwyyw]
The EUMC and the CivCom are two preparatory bodies on matters related to Foreign Affairs that deal with CSDP.350Interviewee I1 The EUMC is composed of the Chiefs of Defense of the Member States, who are regularly represented by their permanent military representatives. It is tasked with giving advice and recommendations on military matters and operations within the EU to the Political and Security Committee.351European External Action Service, Common Security and Defence Policy (CSDP) structure, instruments, agencies , 08/07/2016, https://eeas.europa.eu/headquarters/headquarters-Homepage/5392/common-security-and-defence-policy-csdp-structure-instruments-agencies_ka#The+Crisis+Management+and+Planning+Directorate+%2528CMPD%2529, retrieved on 09/09/2020 [https://web.archive.org/web/20200909093609/https://eeas.europa.eu/headquarters/headquarters-Homepage/5392/common-security-and-defence-policy-csdp-structure-instruments-agencies_ka] The Political and Security Committee was also advised by the CivCom who provided information and recommendations on the civilian aspect of the Crisis management for Operation Sophia. The CMDP is a body within the EEAS in charge of the integrated civilian-military planning within the sphere of the CSDP.352Council of the EU, 2974th Council meeting General Affairs and External Relations External Relations, 17/11/2009, https://ec.europa.eu/commission/presscorner/detail/en/PRES_09_329, retrieved on 30/09/2020 [https://web.archive.org/web/20200930083357if_/https://ec.europa.eu/commission/presscorner/detail/en/PRES_09_329]
(a) The Political and Security Committee
The Political and Security Committee is responsible for the Common Foreign Security Policy (CFSP) and the Common Security Defense Policy (CSDP). The Political and Security Committee was established by Article 38 of the TEU and is composed of the Member States Permanent Representatives to the Political and Security Council in Brussels.353Council of the EU, Political and Security Committee, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/political-security-committee/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930074211/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/political-security-committee/] It is chaired by an EEAS Representative and its main tasks include the monitoring of the international situation in the areas covered by CFSP and the contribution to the definition of CFSP policies, including CSDP, by delivering opinions to the Council on policy options and strategic approaches. Importantly, the Political and Security Committee can also take relevant decisions concerning the political control and strategic direction of crisis management operations.354Consolidated version of the Treaty on European Union, article 38, 42 and 43, http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
The Political and Security Committee also provides guidance to the Military Committee, the Politico-Military Group and the Committee for Civilian Aspects of Crisis Management. It prepares the Foreign Ministers’ decisions on Foreign and Security Policy. All missions of the CSDP go through the Political and Security Committee before going discussed at the Council.355Interviewee I2 However, it only deals with the part of migration policy that is linked to Foreign and Security Policy.356Interviewee I2 For example, it was the Political and Security Committee that appointed the EUBAM Libya Head of Mission.357Interviewee I2 In the relevant period, the Political and Security Committee was chaired first by Walter Stevens (2013 – 2018), then by Sofie From-Emmesberger (2018 – 2020).
Its work is prepared by other preparatory bodies – the European Union Military Committee (EUMC) and the Committee for Civilian Aspects of Crisis Management (CivCom) – under the Political and Security Committee’s guidance.358Interviewee I2 The Political and Security Committee always decides by consensus which is developed through extensive discussions;359Interviewee I2 the view of the commander and that of the EEAS have much weight within this decision-making process.360Interviewee I2 Theoretically, the chairperson does not have influencing power; they assume a coordinating role and make propositions based on the representatives impulses.361Interviewee I2 Once a plan of an operation such as Operation Sophia has been developed within the Political and Security Committee, the Coreper II and finally the Foreign Affairs Council review and discuss the content.362Interviewee I35 Given the Member States’ consensus-building within the Political and Security Committee, the Ministers rarely disagree with Political and Security Committee proposals.363Interviewee I2
Generally, nothing is done without the Member States’ agreement.364Interviewee I2 Discussions also occur within informal channels in which Representatives attempt to gain support for their own objectives.365Interviewee I2 For example, Italy, Germany, France, the United Kingdom, Greece, and Malta were allegedly the most involved in conversations on Operation Sophia.
XICommon Security and Defence Policy (CSDP)
The following outlines the decision-making process involved in developing the Common Security and Defence Policy which crucially comprises the planning of operations such as Operation Sophia. First, the Political and Security Committee must be satisfied that “EU action is appropriate” before planning a “detailed Operation Plan ready for execution.”366MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 4. For example, all entities involved in the policymaking of Sophia must have deemed its planned criminal actions “appropriate” and were implicated in planning every detail of the operation. The Crisis Management and Planning Directorate then develops and drafts a crisis management concept.367MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], pp. 4-5.Considering both political and military aspects of a “crisis situation,” the crisis management concept outlines a “grand strategic plan” submitted again for approval to the Political and Security Committee.368MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. Further involved are the Crisis Response Coordinating Teams composed of a varying number of “senior officials at director level from the Council Secretariat and the Commission”369NORHEIM-MARTINSEN, PER M., “The European Union and Military Force: Governance and Strategy,” Cambridge, Cambridge University Press, 93, 2012, in print., p. 93. and the EU Military Committee. Once the Political and Security Committee approves the crisis management concept, it is submitted to the COREPER and Council “for formal approval.”370MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5.
XIICivilian Strategic Options (CSOs) and Military Strategic Options (MSOs)
Once this process is concluded, “strategic options” are drafted by either the EU Military Staff (military) or the Civilian Planning and Conduct Capacity (police and civilians) with, at times, Commission contributions.371MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. These are reviewed by Committee for Civilian Aspects of Crisis Management and the EU Military Committee and subsequently presented to the Political and Security Committee which prepares a coherent document for the COREPER and the Council.372MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. At the end of this process, the Council formally adopts a decision, thereby legally “establish[ing] the operation”, finalizing financing and designating the Operation Commander.373MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5.
XIIIConcept of Operations (CONOPS) and the Operation Plan (OPLAN)
Subsequently, the EU Military Committee and the EU Military Staff create “an Initiating Military Directive” and present it to the Political and Security Committee.374MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. This Directive “translates the Council decision into military guidance for the Operation Commander.”375MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. Once the Committee approves the directive it is communicated to the “operation headquarters identified in the Council Decision.”376MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. At this point, the “military chain of command” takes over and issues “its own set of planning documents.”377MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. Concretely, it develops the Concept of Operations which outlines the Operation Commander’s implementation plans and the Operation Plan which describes the operation in depth.378MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5. These are subsequently reviewed and accepted by the EU Military Committee, the Political and Security Committee, and ultimately the Council.379MATTELAER, A., “The CSDP Mission Planning Process of the European Union: Innovations and Shortfalls, ”European Integration online Papers, 14(4), 2010, http://eiop.or.at/eiop/texte/2010-009a.htm, retrieved on 09/09/2020 [https://web.archive.org/web/20200909092905/http://eiop.or.at/eiop/pdf/2010-009.pdf], p. 5.
All these preparatory bodies assessed, therefore, planned and participated in the strategic direction of Operation Sophia and its criminal actions of rendering the passage of the Mediterranean more lethal through systematically destroying vessels under the guise of “combatting smuggling”,380TRAVIS, A., EU-UK naval mission on people-smuggling led to more deaths, report says, the Guardian, 11/07/2017, https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says, retrieved on 19/06/2024 [https://web.archive.org/web/20240813125701/https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says], p. 2. as well as training the Libyan ‘coastguard’ and ‘Navy’ to perform search and capture operations of ‘migrants’.
[1] For an in-depth explanation of the General Secretariat’s structure, function and power, see the previous report on the European Council.
CImplication in Criminal Policies
IThe End of Mare Nostrum
Preceding the end of Mare Nostrum, the Justice and Home Affairs Council introduced a “Task Force Mediterranean” in October 2013.381European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] This task force already explicitly lays out the blueprint for what would later crystallize within Operation Sophia, establishing the “particular importance [of] promot[ing] the development of an integrated border management system” and identifying the EUBAM mission and the Sahara-Mediterranean project as deliverers of this “assistance.”382European Commission, Communication from the Commission to the European Parliament and the Council 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. While it appears that the Council was not significantly involved in its work, this evidences the extensive and early planning of the criminal policy the EU would go on to realize in the coming years. These discussions crucially framed and either preceded or ran concurrently with Italy’s decision to end Mare Nostrum as a national project.[1]
While the Council was not officially involved in the ending of Mare Nostrum, some contextual elements suggest its indirect participation. Italy had assumed the Presidency of the Council from 1 July 2014 to 31 December 2015, at the same time as the ending of Mare Nostrum was being discussed. Italy requested a Europeanization of the operation at European Council level but was rejected by all other Member States.383Interview I26 384Interviewee I28 Given Italy’s Presidency, and French Interior Minister Cazeneuve’s tour of ministerial counterparts to discuss Mare Nostrum, it is likely that this proposal and Renzi’s rebuttal was discussed within the Council. Notably, the German government was particularly outspoken in shooting down the Italian proposal: German Interior Minister Thomas de Maiziere, who later lambasted Mare Nostrum as a “bridge to Europe,"385German Interior Ministry, Speech by Interior Minister Dr. Thomas de Maiziere on the occasion of the first debate of the 2015 budget, 09/09/2014 https://www.bmi.bund.de/SharedDocs/reden/DE/2014/09/haushaltsrede-2015.html, retrieved on 31/03/2021 [https://web.archive.org/web/20230113214922/https://www.bmi.bund.de/SharedDocs/reden/DE/2014/09/haushaltsrede-2015.html]. declared at a meeting of the EU’s Justice and Home Affairs Council in Milan on 8 and 9 July 2014 that “it cannot be the permanent task of the Italian navy to take in refugees,[ b]ut the idea that Frontex, with its modest means, will take over the activities of the Italian navy seems unrealistic."386MAYR, J., „Wie Viel Solidarität ist Nötig?“, Tagesschau, 08/08/2014, https://www.tagesschau.de/inland/eu-fluechtlinge-100.html, retrieved on 31/03/2021 [https://web.archive.org/web/20241210024801/https://www.tagesschau.de/inland/eu-fluechtlinge-ts-100.html]
IIThe Council of the EU and Operation Triton
Joint Operation Triton is not a CSDP operation but a Frontex operation which was launched at the behest of Italy. JO Triton served as a cover for replacing the lifesaving and vastly more expansive Mare Nostrum, a primarily search and rescue operation, with a scaled-back, surveillance-oriented mission. Triton was not discussed in the Council’s preparatory bodies – with the exception of Coreper II – a bypass that was justified by the fact “the operation did not require technical or legal consultation.”387Interviewee I31 There was no Council decision defining the scope, terms of reference, or any specificity of the operation: these elements were developed in discussions between the Management Board of Frontex, the Commission, the Council of Europe and Frontex Senior Staff.388Interviewee I1 389Interviewee I21 390Interviewee I53 The Council does not have the same oversight over such types of operations as over CSDP operations like Sophia.391Interviewee I1 However, Operation Triton was discussed at the JHA Council meeting of 10 October 2014, after its formal announcement, and Interior Ministers then adopted the meeting’s “Council conclusions on ‘taking action to better manage migratory flows’.”392Interviewee I53 In those Conclusions, the JHA Council endorsed Operation Triton by concluding that:
“[t]he enforcement of the surveillance of EU external borders is of vital interest to all Member States. Member States should cooperate closely with Frontex in order to consolidate the agency’s presence in the Mediterranean. In particular in the central Mediterranean, the new joint Operation Triton needs to be deployed without delay. While the operation is being deployed, full coordination with the emergency measures taken by Italy [i.e. Mare Nostrum] will be ensured, in view of their prompt phasing out.”393Council of the European Union, Council Conclusions on ‘Taking action to better manage migratory flows’ Justice and Home Affairs Council meeting, 10/10/2014, https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930080433/https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf] (emphasis added)
Council Conclusions express a political position or commitment of the Council on a certain topic and do not intend to have legal effects. Through its Conclusions, the Council can invite Member States to take specific action.394Council of the EU, Council Conclusions and Resolutions, https://www.consilium.europa.eu/en/council-eu/conclusions-resolutions/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930080546/https://www.consilium.europa.eu/en/council-eu/conclusions-resolutions/] This is specifically what the above Conclusions do: they encourage Member States to cooperate with Frontex to consolidate its presence in the Mediterranean and in particular through the deployment of Operation Triton. Importantly, these Conclusions have to be adopted by consensus between all Member States.395Council of the EU, Council Conclusions and Resolutions, https://www.consilium.europa.eu/en/council-eu/conclusions-resolutions/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930080546/https://www.consilium.europa.eu/en/council-eu/conclusions-resolutions/] If no consensus is reached the text may only be adopted as “presidency Conclusions.” However, the 10 October 2014 JHA Council’s “Conclusions on taking action to better manage migratory flows” were adopted by consensus, meaning that all Interior Ministers agreed on the text of the Conclusions, thereby insisting on the need to deploy operation Triton without delay.396Council of the European Union, Council Conclusions on ‘Taking action to better manage migratory flows’ Justice and Home Affairs Council meeting, 10/10/2014, https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930080433/https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf]
As noted above, when the Triton was discussed at the JHA Council meeting in October 2014, Italy held the presidency of the Council. Consequently, Italian Minister of the Interior Angelino Alfano chaired the meeting during which the Operation was discussed and endorsed.397Council of the EU, Agenda: Justice and Home Affairs Council, 9 and 10 October 2014, 8/10/2014, http://italia2014.eu/media/2582/agenda-justice-and-home-affairs-council-meeting-luxembourg-9-and-10-october-2014.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930080747/http://italia2014.eu/media/2582/agenda-justice-and-home-affairs-council-meeting-luxembourg-9-and-10-october-2014.pdf] Italy was in charge of setting the agenda for all meetings as well as facilitating dialogue within the meeting and likely used the advantages provided by its Presidency to push for such an operation, since, as mentioned above, the Italian establishment looked for a European substitute that would enable the termination of the Italian Mare Nostrum.
To obtain unanimous support within the JHA Council and the Commission, Italian Interior Minister Alfano advocated for Triton with his most influential counterparts, such as Cecilia Malmström, thereby making full use of his prerogatives as President of the Council to push forward his policy.
This can be retraced through several events. For instance, on 27 August 2014, Alfano and Malmström gave a joint press conference on migration in the Mediterranean. Before the press conference, they discussed the future of Mare Nostrum and agreed to launch a “Frontex plus” operation to increase the assistance to Italy and to replace the Italian Navy-led humanitarian operation Mare Nostrum. It was also said that Alfano was negotiating in parallel with Frontex with regards to the last details and needs of the operation.398European Commission, Visit of Angelino Alfano, Italian Minister for the Interior and President in office of the Council of the EU to Cecilia Malmström: joint press conference, 27/08/2014, https://audiovisual.ec.europa.eu/en/video/I-092070, retrieved on 30/09/2020 [https://web.archive.org/web/20200930081017/https://audiovisual.ec.europa.eu/en/video/I-092070]
The same day in Rome, Alfano met with his French counterpart, Bernard Cazeneuve, to discuss irregular migration along the Central Mediterranean route, on the basis of a plan presented by France and with Italian strategic propositions. In the official joint press release of that meeting, they “fully agree on the launch of a “Frontex plus” operation to ensure the control and surveillance of the European Union's external maritime borders in the central Mediterranean, in accordance with Frontex rules. The implementation of this operation will enable the Mare Nostrum operation to be phased out.”399Ministère de l’intérieur, Accord entre la France et l’Italie sur la question de l’immigration irrégulière en Méditerranée centrale, 28/08/2014, https://mobile.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale, retrieved on 30/09/2020 [https://web.archive.org/web/20200930081129/https://mobile.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale] The official statement in French provides that: “ils ont marqué leur complet accord sur le lancement d’une opération « Frontex + » chargée d’assurer le contrôle et la surveillance des frontières extérieures maritimes de l’Union Européenne en méditerranée centrale, conformément aux règles de Frontex. La mise en œuvre de cette opération permettra de mettre progressivement fin à l’opération Mare Nostrum.". 400“Naufrages de migrants: Rome et Paris mettent fin à l’opération Mare Nostrum,” Le Parisien, 28/08/2014, http://www.leparisien.fr/societe/naufrage-de-migrants-rome-et-paris-mettent-fin-a-l-operation-mare-nostrum-28-08-2014-4093199.php, retrieved on 30/09/2020 [https://web.archive.org/web/20200930081331/https://www.leparisien.fr/societe/naufrage-de-migrants-rome-et-paris-mettent-fin-a-l-operation-mare-nostrum-28-08-2014-4093199.php]
Two days later, on 30 August 2014, Cazeneuve met with Spanish Interior Minister Jorge Fernandez Diaz in Barcelona, and both agreed on supporting the launch, as soon as possible, of the “new European surveillance operation for marine frontiers ‘Frontex Plus’,” i.e., Triton, that would gradually take over Mare Nostrum.401“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/08/2014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 30/09/2020 [https://web.archive.org/web/20200922163531/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/] On 12 March 2015, Cazeneuve stated that France had obtained that Mare Nostrum will be replaced by Triton, following the submission of a non-paper.402Ministère de l’Europe et des affaires étrangères, Représentation Permanente de la France auprès de l’Union Européenne, Déclarations de M. Cazeneuve, Ministre de l’intérieur, en marge du Conseil Justice-Affaires, 12/03/2015, https://ue.delegfrance.org/terrorisme-migrations-conseil, retrieved on 30/09/2020 [https://web.archive.org/web/20200930081824/https://ue.delegfrance.org/terrorisme-migrations-conseil]
IIIThe Council of the EU and Operation Sophia
Operation Sophia is a Common Security and Defense Policy operation which was launched following the Foreign Affairs Council decision 2015/788 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED). At this phase, its alleged intent was to disrupt the business model of “smugglers” in the Southern Central Mediterranean. This Council decision gave the competence to the Political and Security Committee to exercise, under the responsibility of the Council and of the High Representative of the Union for Foreign Affairs and Security Policy, political control over the operation, to provide it with strategic direction and take the relevant decisions in accordance with article 38(3) of the TEU.
This decision followed the agreement reached during a European Council meeting of 23 April 2015 to launch Operation Sophia.403Interviewee I48 404Council of the EU, Council decision (CFSP) 2015/778, 18/05/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015D0778, retrieved on 30/09/2020 [https://web.archive.org/web/20200930082459/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015D0778] The Council decision to launch Sophia was signed by the then High Representative of the Union for Foreign Affairs and Security Policy Federica Mogherini who was chairing the Foreign Affairs Council meeting. This decision was adopted when Latvia assumed the Presidency of the Council. Pursuant to Articles 31 and 42(4) of the TEU, the Council decision launching Operation Sophia required unanimity, meaning that all Foreign Affairs minister had a de facto veto power over this decision and subsequent decisions renewing the mandate of the operation at later stages.
Prior to being adopted by unanimity by the Foreign Affairs Ministers at the Foreign Affairs Council meeting of 18 May 2015, this military operation was discussed and designed in two preparatory bodies of the Council, namely the European Union Military Committee (EUMC) and the Committee for Civilian Aspects of Crisis Management (CivCom), before being discussed at length at the Political and Security Committee.405Interviewee I2 406Interviewee I1 407Interviewee I35 The EUMC – including the EU Military Staff, a component of the EUMC[3] - with the Crisis Management Planning Directorate (CMPD) of the EEAS, were the ones who developed the concept of the operation.408EUR-lex, Political and Security Committee, https://eur-lex.europa.eu/summary/glossary/political_security_committee.html, retrieved on 30/09/2020 [https://web.archive.org/web/20200930082641/https://eur-lex.europa.eu/summary/glossary/political_security_committee.html] The Foreign Affairs Council was in charge of operational assessment as well as adjusting the operation. The operational aspects of the operation were, in contrast, led and controlled by the EEAS, responsible, together with its working bodies and committees, for the preparation of most of the Foreign Affairs Councils.409Interviewee I1
The Political and Security Committee has been described as key in the creation of Sophia and as the body where consensus was developed.410Interviewee I2 When Sophia was being discussed, the Political and Security Committee initially gave broad indications (‘les grandes lignes’) on the operation to the preparatory bodies (EUMC, CivCom) which then worked on the details of the operation and reported to the Political and Security Committee.411Interviewee I2
When negotiating Sophia, the discussions in the Political and Security Committee have been described as intense and in-depth in order to reach consensus.412Interviewee I2 Outside of the Political and Security Committee formal meetings, informal meetings could take place with some (groups of) Member States that had more questions to try to find consensus.413Interviewee I2
At the end of each Political and Security Committee meeting, the Chair drafts the conclusions of the negotiations. These conclusions are shared with the Member States representatives of the Political and Security Committee and must be accepted by unanimity.414Interviewee I2 If a Member State disagrees with the conclusions, the chair will try to reach consensus by suggesting changes or making phone calls. Importantly, the chair of the Political and Security Committee, does not have much power of influence over the content of the operation. His role is to facilitate the consensus building within the Political and Security Committee, to feel the middle ground between diverging States positions and suggest conclusions in that direction.415Interviewee I2 All the Political and Security Committee meeting conclusions form a detailed plan of the operation which, once consensus has been reached, are sent to the Coreper II and then to the Ministers for final approval.416Interviewee I2 In general, the Ministers accept the agreement.417Interviewee I2 This process again illustrates the high level of consensus among EU bodies and Member States as well as their intimate involvement and knowledge of each mission at every level.418Interviewee I2
Following this process, the Political and Security Committee discussed, prepared, and designed the Foreign Affairs Council decision on 18 May 2015 launching the CSDP operation EUNAVFOR MED. Once the mission began operations, the Political and Security Committee was tasked with giving strategic guidance for the operation and appointing the Force Commanders of Operation Sophia.419Interviewee I2 This included assessing the conditions in which the mission operated, its capabilities, and which direction the mission would take.420Interviewee I2 To fulfill these duties, the Political and Security Committee received guidance from the CivCom on matters of civilian aspects of the operation, and the Commander of the Operation – Enrico Credendino – reported to the committee in two to three months intervals.421Interviewee I2 The Council and its preparatory bodies, therefore, had extensive knowledge of the results of the operation, and specifically of the scale of the death toll and the extent of the forced transfers to Libya,422European Political Strategy Centre, Irregular Migration via the Central Mediterranean – From Emergency Responses to systemic solutions, 02/02/2017, https://op.europa.eu/en/publication-detail/-/publication/959407ea-ed03-11e6-ad7c-01aa75ed71a1, retrieved on 12/06/2025 [https://web.archive.org/web/20240623194752/https://op.europa.eu/en/publication-detail/-/publication/959407ea-ed03-11e6-ad7c-01aa75ed71a1], p. 1. 423Missing Migrants Project, Migration within the Mediterranean, last updated 23/09/24, https://missingmigrants.iom.int/region/mediterranean?region_incident=All&route=3861&month=All&incident_date%5Bmin%5D=&incident_date%5Bmax%5D=, retrieved on 23/09/24 [https://web.archive.org/web/20240927072412/https://missingmigrants.iom.int/region/mediterranean?region_incident=All&route=3861&month=All&incident_date%5Bmin%5D=&incident_date%5Bmax%5D=] without changing course at any point in time.
Following these procedures, the Political and Security Committee authorized EUNAVFOR MED to move to the second – active – phase of their operation in September 2015.424Political and Security Committee, Decision CFSP 2015/1772, 28/09/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1585797794827&uri=CELEX:32015D1772, retrieved on 30/09/2020 [https://web.archive.org/web/20200930083604/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1585797794827&uri=CELEX%3A32015D1772] In January 2016, they authorized operation Sophia “to conduct boarding, search, seizure & diversion on the high seas of vessels suspected of being used for human smuggling under the mandate of the UNSC resolution 2240 (2015).”425Political and Security Committee, Decision CSFP 2016/119, 20 January 2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1585797794827&uri=CELEX:32016D0118, retrieved on 30/09/2020 [https://web.archive.org/web/20200930083830/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1585797794827&uri=CELEX%3A32016D0118] The Political and Security Committee has been regularly briefed by Credendino about operations and tasks.426Interviewee I2 In general, the discussions on Sophia at the Political and Security Committee were mainly led by Italy, Germany, France, United Kingdom, Greece and Malta.427Interviewee I2
IVTraining of the Libyan Coastguard
(a) EUBAM Libya
EUBAM Libya is a civilian operation under the CSDP (Common Security Defense Policy) which began its operations in May 2013 and contributed to the capacity-building of Libyan maritime border control.428EEAS, EU Integrated Border Assistance Mission in Libya, 04/2018, https://www.eeas.europa.eu/sites/default/files/version_anglaise.pdf, retrieved on 15/07/2024 [https://web.archive.org/web/20240715120409/https://www.eeas.europa.eu/sites/default/files/version_anglaise.pdf] Prior to Operation Sophia, therefore, it was one of the first instances in which the EU attempted to realize its plan of building up the Libyan Coastguards’ capacities to orchestrate pushbacks by proxy, alongside the Seahorse Mediterranean project.
EUBAM Libya was created through Council Decision 2013/233/CFSP (of the Council of the European Union). The EEAS and the High Representative of the Union are identified as the responsible bodies for this decision.429Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] EUBAM Libya had a funding of 31,2 million euros as of April 2018 with funds coming from 14 contributing Member States: Austria, Germany, Danmark, Spain, Finland, France, Hungary, Italy, Sweden, the UK, Croatia, Poland, Ireland, and Romania.430EEAS, EU Integrated Border Assistance Mission in Libya, 04/2018, https://www.eeas.europa.eu/sites/default/files/version_anglaise.pdf, retrieved on 15/07/2024 [https://web.archive.org/web/20240715120409/https://www.eeas.europa.eu/sites/default/files/version_anglaise.pdf]
EUBAM Libya’s operational plans were developed by the Political and Security Committee and its supporting bodies.431Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, articles 5 & 9, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] Frontex assisted with the development of the EU’s position on EUBAM, as well as the establishment of the EUBAM training programs, including the conception of the programs and providing material assistance.432Global Legal Action Network, Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008094646/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 20.
EUBAM Libya’s head of mission is appointed by the Political and Security Committee under the auspice of the Commission.433Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 9, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] The Head of Mission is responsible to the Civilian Planning and Conduct Capability Director who assumes the role of Civilian Operation Commander.434Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 9, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] It is clearly stated in the relevant Council decision that the latter is “under the political control and strategic direction of the Political and Security Committee and overall authority of the High Representative” who are directly responsible for strategic direction.435Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 9, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] The Head of Mission further reports to and is “supervised by” the Commission, specifically DG NEAR.436Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 9, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] EUBAM’s staff consists of personnel provided by “Member States, Union institutions or the EEAS.”437Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 9, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233] Antti Hartikainen was the head of mission from April 2013 until May 2015.438CV Antti Hartikainen, https://www.consilium.europa.eu/media/39503/cv-antti-hartikainen.pdf, retrieved on 27/08/2024 [https://web.archive.org/web/20240903102144/https://www.consilium.europa.eu/media/39503/cv-antti-hartikainen.pdf]
As early as May 2013, the EU was envisioning the key role of Libya in its future policy of arrivals’ prevention. EUBAM Libya’s objectives were described as building the capacities of the “Libyan authorities” regarding – among others – sea borders and, crucially, to “develop a broader IBM strategy in the longer term.”439Council of the European Union, Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), 22/05/2013, article 2, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233, retrieved on 28/08/2024 [https://web.archive.org/web/20240903094858/https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013D0233]
EUBAM trained the Libyan General Administration for Coastal Security (GACS), which it considered to be a priority.440Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 3. The GACS are responsible for Libyan waters close to the shore (up to 12 nautical miles). Areas beyond are covered by the Libyan ‘coastguard’. They are equally tasked with law enforcement including migration “control”, human trafficking, and search and rescue.441Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 3. 43 GACS members had already been trained in 2017, although it is unclear under which framework.
In early 2017, EUBAM had jointly drafted a “Training Catalogue” with the Libyan National Team for Border Management and Security. The cooperation with Frontex was anticipated to generate donations to “Libyan beneficiaries”.442Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. Expanding this mission, EUBAM planned a “pilot training action” in cooperation with Frontex and Italy in October 2017, which was led by Frontex, with Italy providing material support and training facilities and EUBAM assisting Italian efforts and conceptualizing the training program.443Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 3. A first meeting between EUBAM, Italy, and Frontex occurred in March 2018 at which they approved the pilot training program for the GACS, to “complement in a coherent and holistic way already existing initiatives” and “strengthen their coastguard functions.”444Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. Financed by the EUTF, this “training action” was developed within the bilateral Italian-Libyan cooperation framework, and envisioned to train 88 GACS personnel by 2020.445Global Legal Action Network, Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008094646/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 21. Additionally, the GACS were to receive a total of eight “repaired vessels,” three of which had already been handed over at that point.446Global Legal Action Network, Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008094646/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 20.
(b) Operation Sophia
In January 2016, Sophia Operation Commander Credendino sent a secret report to the Political and Security Committee (specifically to Chairman Walter Stevens). In this report, Credendino pushed for a transition from operating in the high seas (phase 2A) to operating in Libyan Territorial Waters (phase 2B). He also specifically advocated to include the training of the Libyan coastguard in their mandate. This proposition was framed in terms of being an “exit strategy” to “prevent irregular migration taking place from [Libyan] shores” and to secure the deal that the EU would be allowed to operate in Libyan high seas.CoEU 93}}
Prior to the official decision being rendered, the Political and Security Committee gave strategic guidance on whether to work with the Libyan coastguard with regards to the existence of potential criminal elements within the Libyan coastguard.447Interviewee I2 The Political and Security Committee ultimately verified that the parameters were supposedly met.
This guidance continued once this aspect of the mandate started operating and was given every two to three months based on the report by the commander.448Interviewee I2 No Member State representative within the Political and Security Committee opposed the training program.449Interviewee I2 France was worried about the utility of the mission to train the Libyan ‘coastguard’ and conditioned the inclusion of this task to the inclusion of the enforcement of the Libyan arms embargo. Member States also asked for thorough vetting to make sure no criminals were trained by the operation.450Interviewee I2 Apart from that “everyone thought the mission was a good idea.”451Interviewee I2
Propositions on the operation, including the training of Libyan coastguards, would always formally come from Commander Credendino. Both nationals of Italy, the key frontline member state in the Central Mediterranean route, it seems that the Commander and the High Representative may have promoted ideas of their home country and, specifically, facilitated the incorporation of the training program in Sophia’s mandate.452Interviewee I2
All of these misleading assessments, verifications and ultimate approvals were made despite the repeated warnings given to Operation Sophia and Commission officials about the Libyan coastguard,453EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 10. the dire situation faced by ‘migrants’ in Libyan detention centers, the fact that Libya cannot be considered a safe place for people to be disembarked, and that doing so would breach international law including the principle of non-refoulement.454EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 19. Several NGO representatives, at a forum Operation Sophia had convened, also critiqued the potential of the Libyan ‘coastguard’.455EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 10.
These decisions had also run counter to EU’s full knowledge of the 2012 Hirsi ruling according to which refoulement to Libya is unlawful, accounts suggesting the contract with the LYCG did not meet the conditions set out in the arms embargo,456REITANO, T. and MICALLEF, M., “The anti-human smuggling business and Libya’s political end game,” Institute for Security Studies, December 2017, https://issafrica.s3.amazonaws.com/site/uploads/nar2.pdf, retrieved on 11/04/2019 [https://web.archive.org/web/20241213152740/https://issafrica.s3.amazonaws.com/site/uploads/nar2.pdf] 457UNSC, “Final report of the Panel of Experts on Libya established pursuant to resolution 1973 (2011)” (1 June 2017) S/2017/.466, para 152 458Human Rights Watch, “EU: shifting rescue to Libya risks lives,” 19/06/2017, https://www.hrw.org/news/2017/06/19/eu-shifting-rescue-libya-risks-lives, retrieved on 11/04/19 [https://web.archive.org/web/20250516183602/https://www.hrw.org/news/2017/06/19/eu-shifting-rescue-libya-risks-lives] the 2015 UNHCR assessment of Libya as unsafe and calling on all countries to assist persons fleeing the country in exiting it,459UNHCR, UNHCR Position on Returns to Libya - Update I, October 2015 https://www.refworld.org/docid/561cd8804.html, retrieved on 19/06/2024, p. 13. as well as awareness of the role Libyan agents played in the smuggling business and the LYCG’s integration of criminal militias.460Frontex, Africa-Frontex Community Joint Report 2016, https://prd.frontex.europa.eu/document/africa-frontex-intelligence-community-joint-report-2016/, retrieved on 19/06/2024 [https://web.archive.org/web/20250529195539/https://prd.frontex.europa.eu/document/africa-frontex-intelligence-community-joint-report-2016/], p. 18. 461Amnesty International, Libya’s Dark Web of Collusion: Abuses Against Europe-bound Refugees and Migrants, https://www.amnesty.org/en/documents/mde19/7561/2017/en/, retrieved on 19/06/2024 [https://web.archive.org/web/20250611134600/https://www.amnesty.org/en/documents/mde19/7561/2017/en/], p. 34.
All EU bodies and Member States involved in the expansion of Operation Sophia’s mandate to train the Libyan coastguard therefore took this decision in full consciousness of the criminal consequences it would incur.
VThe Dutch Presidency
The Netherlands assumed the Presidency of the Council from January to June 2016,462Ministry of Foreign Affairs of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, 2016, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf,retrieved on 30/09/2020 [https://web.archive.org/web/20200930084518/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf] which led a powerful Presidency and was agenda-setting on migration issues.463Interviewee I22 It oversaw the decision to extend the mandate of Sophia to include capacity building and training of Libyan ‘coastguards’. It had presented a trio program with Slovakia and Malta, which assumed Presidency between July – December 2016 and January – June 2017 respectively.464Council of the EU, The future Netherlands, Slovak and Maltese Presidencies, 11/12/2015, https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930084809/https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf] In its program presentation in 2015, the trio stated it would propose new measures to address “irregular migration flows” and advocate for a reinforcement of Frontex.465Council of the EU, The future Netherlands, Slovak and Maltese Presidencies, 11/12/2015, https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930084809/https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf], p. 18. The framework in which these three countries “took office” as Presidencies was Libya-focused and generally concentrated on border control.
Prior to its Presidency, it indicated that it would highlight Common Security and Defence Policy as a key element in migration policy and that it was helping to plan a “new Global Strategy on Foreign and Security Policy” which it anticipated to present at the Council in June 2016.466Council of the EU, The future Netherlands, Slovak and Maltese Presidencies, 11/12/2015, https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930084809/https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf], p. 14. In its own Presidency program, the Netherlands put a special emphasis on the “huge influx of people… putting the European Union to the test.467Ministry of Foreign Affairs of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, 2016, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf,retrieved on 30/09/2020 [https://web.archive.org/web/20200930084518/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 14. It further prioritized the control of the EU’s external borders. The Presidency Programme also underlined that cooperation with third countries was essential.468Ministry of Foreign Affairs of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, 2016, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf,retrieved on 30/09/2020 [https://web.archive.org/web/20200930084518/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 14.
In May 2016, during its Presidency, Dutch Foreign Minister Bert Koenders paid a visit to Tripoli where he met with Libyan Prime Minister al-Sarraj and the Libyan ‘coastguard’. This came shortly after Credendino recommended the inclusion of the training of the Libyan coastguard. With the Libyan coastguard, Koenders affirmed “joint action to tackle people smuggling and [migration management].”469Government of the Netherlands, Libya to receive Dutch support, 09/05/2016, https://www.government.nl/latest/news/2016/05/09/libya-to-receive-dutch-support, retrieved on 30/09/2020 [https://web.archive.org/web/20200930085023/https://www.government.nl/latest/news/2016/05/09/libya-to-receive-dutch-support]
In June 2016, the Netherlands and IOM Libya concluded an agreement “for an 18-month project aimed at enhancing the Libyan Coastguard’s capacity to save lives at sea.”470International Organization for Migration, Netherlands, IOM Build Libyan Coast Guard Capacity to Save Lives at Sea, 06/10/2016, https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea, retrieved on 30/09/2020 [https://web.archive.org/web/20200930085329/https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea] This project was provided with a budget of 1.5 million euro and would further equip the coastguard with equipment and technical means to coordinate interceptions of “migrants” at sea.471International Organization for Migration, Netherlands, IOM Build Libyan Coast Guard Capacity to Save Lives at Sea, 06/10/2016, https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea, retrieved on 30/09/2020 [https://web.archive.org/web/20200930085329/https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea] 472Embassy of the Netherlands in Libya, Netherlands to support Saving Lives at Sea Operations by the Libyan Coast Guard and humanitarian repatriation, 09/06/2016, https://www.facebook.com/DutchEmbassyLibya/posts/netherlands-to-support-saving-lives-at-sea-operations-by-the-libyan-coast-guard-/1188152644562837/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930085625/https://www.facebook.com/DutchEmbassyLibya/posts/netherlands-to-support-saving-lives-at-sea-operations-by-the-libyan-coast-guard-/1188152644562837/] A few months later, in September 2016, SOPHIA was authorized to start contributing to the implementation of the UN arms embargo and operate in the Libyan high seas.473Political and Security Committee, Decisions CFSP 2016/1637, 06/09/2016, article 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D1637, retrieved on 01/10/2020 [https://web.archive.org/web/20201001082413/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D1637]
Given that June 2016 marked the official mandate expansion of Operation Sophia to include the training of the Libyan coastguard, it is likely the Netherlands played an active role in this evolution. In any case, it demonstrates the Netherlands’ full support and advocacy for training the Libyan ‘coastguard’.
Upon conclusion of its Presidency, the Netherlands listed among its successes having reduced the migration influx due to “an integrated European approach,” the Turkey deal, and the establishment of a European Border Guard.474European Urban Knowledge Network, Factsheet: Results of the EU Presidency, 2016, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930090228/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf] It further declared that the next front to tackle was the route from North Africa to Europe.475European Urban Knowledge Network, Factsheet: Results of the EU Presidency, 2016, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930090228/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf]
VIForeign Affairs Council’s influence
From 2015 to 2019 a number of Foreign Affairs Council’s decisions and Political and Security Committee’s decisions have been adopted by unanimity on Operation Sophia - unanimity without which the operation could not have been launched. Foreign ministers, but also Member States’ ambassadors sitting at the Political and Security Committee meetings,476Council of the EU, Political and Security Committee, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/political-security-committee/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930074211/https://www.consilium.europa.eu/en/council-eu/preparatory-bodies/political-security-committee/] played therefore a decisive role in the design of the operation.
In July 2017, Sophia’s mandate was expanded to comprise the establishment of a “monitoring mechanism of trainees to ensure the effectiveness of the training” which included “monitoring their behavior” and considering their “respect of human rights”.477Politico-Military Group, EU Naval Force in the Central Mediterranean (EUNAVFOR MED Operation Sophia) Updated Information Communication Strategy 2019 10724/19, 26/06/2019, https://data.consilium.europa.eu/doc/document/ST-10724-2019-INIT/en/pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930090858/https://data.consilium.europa.eu/doc/document/ST-10724-2019-INIT/en/pdf] Key EU stakeholders included: “The High Representative of the Union for Foreign and Security Policy; EUNAVFOR MED Operation SOPHIA; the HR/VP Spokesperson's Team; the EEAS, in particular EEAS Strategic Communication Division (CSDP Team and Task Force South); the European Council; the Council of the EU; the Chairman of the EU Military Committee; the EU Military Staff; the European Commission; the European Parliament (in particular the Committee on Foreign Affairs / Subcommittee on Security and Defence, the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Development); the EU Delegations in the region and in relevant countries of origin and transit of irregular migrants; the EU Delegations, especially to the UN, relevant UN agencies, non-EU members of the UN Security Council; the EC representations in Member States’ capitals.”478Politico-Military Group, EU Naval Force in the Central Mediterranean (EUNAVFOR MED Operation Sophia) Updated Information Communication Strategy 2019 10724/19, 26/06/2019, https://data.consilium.europa.eu/doc/document/ST-10724-2019-INIT/en/pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930090858/https://data.consilium.europa.eu/doc/document/ST-10724-2019-INIT/en/pdf]
On 4 July 2017 the European Commission issued the “Action plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity,”479European Commission, Action plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity, 04/07/2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155424/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf] which invited Italy to draft the NGO Code of Conduct. At the same time, a JHA Council convened on 6 July 2017 in Tallinn under the Estonian Presidency.480Estonian Presidency to the Council, Informal Meeting of Justice and Home Affairs Ministers: Press Statement following discussions on Central Mediterranean, 06/07/2017, https://www.statewatch.org/news/2017/jul/eu-council-jha-informal-med-prel.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155001/https://www.statewatch.org/media/documents/news/2017/jul/eu-council-jha-informal-med-prel.pdf] During that meeting, the Interior Ministers “welcomed the initiative of the Italian authorities to ensure that NGO’s vessels involved in Search and Rescue (SAR) activities operate within, and abide by, a set of clear rules, in the form of a code of conduct to be urgently finalized by the Italian authorities, in consultation with the Commission and in cooperation with the relevant stakeholders.”481Estonian Presidency to the Council, Informal Meeting of Justice and Home Affairs Ministers: Press Statement following discussions on Central Mediterranean, 06/07/2017, https://www.statewatch.org/news/2017/jul/eu-council-jha-informal-med-prel.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155001/https://www.statewatch.org/media/documents/news/2017/jul/eu-council-jha-informal-med-prel.pdf]
VIIThe Austrian Presidency
Austria assumed presidency of the European Council in July – December 2018. Its motto was “A Europe that protects” and supposed to concentrate on migration as the primary focus.482MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435] Two main goals were articulated by Austria ahead of its term: the creation of disembarkation platforms outside of Europe and the reinforcement of Frontex.483MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435] The latter was supported by Czech Prime Minister Babis at a Visegrad Group meeting at which Kurz was present.484“Visegrad countries urge stronger EU border defense,” Deutsche Welle, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091629/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264] Overall, it announced its intention to develop “a new, better protection system under which no applications for asylum are filed on EU territory.”485“Austria to push hardline migration policy in EU presidency,” Financial Times, https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091413/https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d] One of the proposals voiced suggested the creation of “camps in Northern Africa to send migrants saved at sea,” which would be rejected by Libya, but would become effectively implemented through other means.486“Austria to push hardline migration policy in EU presidency,” Financial Times, https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091413/https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d] The European Commission cautioned shortly after that this “might” violate international law.487MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435] At a press conference at the beginning of Austria’s presidency, Kurz expressed that he had been advocating for a stricter course on migration and had pushed for stopping illegal migration and a code of conduct for NGOs for years.488“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091457/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] On a separate occasion, he also proposed an “‘axis of the willing’ against illegal migration among Austria, Italy… and Germany [specifically Seehofer].”489TIEKSTRA, W. “The Future of the European Migration System: unlikely partners?,” Clinhendael -Netherlands Institute of International Relations, 07/2018, https://www.clingendael.org/sites/default/files/2018-07/Strategic_Alert_Migration_Security_July2018.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091814/https://www.clingendael.org/sites/default/files/2018-07/Strategic_Alert_Migration_Security_July2018.pdf] He did not put forward a specific agenda other than a tough position on “illegal migration.” The phrasing drew critical comparisons to the description of Nazi Germany, Italy and Japan as the “axis powers”.490RÖHLIG, M., “Österreich will eine “Achse der Willigen” gegen Flüchtlinge – mit Deutschland und Italien,” Spiegel Politik, 13/06/2018,https://www.bento.de/politik/fluechtlinge-achse-der-willigen-mit-deutschland-oesterreich-und-italien-a-00000000-0003-0001-0000-000002501675, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092003/https://www.spiegel.de/consent-a-?targetUrl=https%3A%2F%2Fwww.spiegel.de%2Fpolitik%2Ffluechtlinge-achse-der-willigen-mit-deutschland-oesterreich-und-italien-a-00000000-0003-0001-0000-000002501675]
After Austria’s term conclusion, Interior Minister Kickl boasted about Austria being responsible for the change of paradigm in migration policy present in the European Council Conclusions.491RIEGERT, B., “EU bei Migration in der Sackgasse,” Deutsche Welle, 07/02/2019, https://www.dw.com/de/eu-bei-migration-in-der-sackgasse/a-47413134, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092330/https://www.dw.com/de/eu-bei-migration-in-der-sackgasse/a-47413134] This change was specifically credited to the informal 20 September 2018 meeting of heads of state in Salzburg and the Council meetings in October and December.492Österreichs Vorsitz im Rat der Europäischen Union, Der österreichische Ratsvorsitz 2018 auf einen Blick, 31/12/2020, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092606/https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html] In its presidency report, Austria states that the settlement question is no longer the primary issue but the protection of the external borders and that “the fight against smugglers. The Mediterranean route is now de facto closed for illegal migration and the numbers of arrival of illegal migrants has decreased by 95% since 2015.”493Österreichs Vorsitz im Rat der Europäischen Union, Der österreichische Ratsvorsitz 2018 auf einen Blick, 31/12/2020, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092606/https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html] It went on to say that the Austrian Presidency concentrated on border “protection” and cooperation with African states as well as achieving a strengthening of Frontex’s mandate on cooperation with transit countries.494Österreichs Vorsitz im Rat der Europäischen Union, Der österreichische Ratsvorsitz 2018 auf einen Blick, 31/12/2020, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092606/https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html]
Austria “failed,” however, to realize its initially set objectives of external disembarkation platforms and a tangible reinforcement of Frontex.495MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435] The disembarkation platforms were successfully included in the June 2018 Conclusions,496Presidency of the Council, Implementation of the renewed EU Internal Security Strategy: joint Presidency paper 10991/19, 17/07/2019, https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001083418/https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf], p. 15. but were ultimately rejected by African partners.497FOX, B., “African leaders set up migration body, reject EU migrant ‘platforms’,” Euractiv, 03/07/2018, https://www.euractiv.com/section/global-europe/news/african-leaders-set-up-migration-body-reject-eu-migrant-platforms/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094033/https://www.euractiv.com/section/global-europe/news/african-leaders-set-up-migration-body-reject-eu-migrant-platforms/] The planned addition of 10 000 border officers to Frontex was also postponed until 2027 because of Member States’ concerns about infringement on sovereignty.498MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435] During that time, Austria declined to sign the UN Global Compact for Migration, which inspired other Member States, e.g. the Visegrad countries, to do the same.499MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091004/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435]
In March 2019, Sophia was extended until September and simultaneously directed to withdraw its naval assets for the extension period “for operational reasons,”500Presidency of the Council, Implementation of the renewed EU Internal Security Strategy: joint Presidency paper 10991/19, 17/07/2019, https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001083418/https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf] further reducing its search and rescue capabilities. It was nonetheless instructed to “implement its mandate accordingly, strengthening surveillance by air assets as well as reinforcing support to the Libyan Coastguard and Navy.”501Presidency of the Council, Implementation of the renewed EU Internal Security Strategy: joint Presidency paper 10991/19, 17/07/2019, https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001083418/https://www.statewatch.org/media/documents/news/2019/aug/eu-council-presidences-iss-10991-19.pdf] Later that year, in September, the outgoing Romanian and incoming Finnish Presidency briefed the delegations on the situation in Libya, acknowledging the exceptional extent of crimes committed against “migrants” in Libya.
In a letter from the Presidency to the Member States’ delegations, the Presidency spoke of a “severely deteriorating conditions for migrants...[and] of the security situation,” attacks on exile detention centers, bad overcrowding, arbitrary detention of “migrants”, poor access to “sanitary facilities, food, and water supply,” widely reported “severe human rights violations,” and links between detention centers and human trafficking.502Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf]
This was paired with reports that “migrants” were rescued by the Libyan coastguards at sea and returned to detention centers with little to no accountability and numerous disappearances.503Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf] After one detention center was attacked and evacuated, it “was again filled with migrants and refugees rescued by the LYCG.”504Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf]
The Council, the Member States, and the EU at large, were therefore fully conscious of the commission of crimes against “migrants” in Libya and the direct links of these crimes to its own policies. Yet rather than stopping all operations complicit in the suffering and deaths of “migrants”, the letter itself went on to report the “success”: the numbers of “rescued” “migrants” who were returned to Libya, reached the numbers of rescued “migrants” reaching Europe.505Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf] Emphasizing the primary objective of “migrants” to leave Libya, it is also indicated that EU actions had little impact on smuggling activities,506Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf] after years of operations supposedly combating smuggling. Finally, the letter further mentioned a EUBAM White Paper currently being drafted on a proposal for “Libya to gain full control of its borders.”507Presidency of the Council, Libya and the surrounding area: current situation and need for immediate action 11538/19, 04/09/2019, https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909115737/https://www.statewatch.org/media/documents/news/2019/sep/eu-council-libya-11538-19.pdf]
Shortly after, in October 2019, the Political and Security Committee confirmed the continuation of EU policy in the Central Mediterranean, including training of and assistance to the Libyan ‘coastguard’.508Political and Security Committee, CFSP Report – Our priorities in 2019 CFSP Report – Our priorities in 2019, 09/10/2019, https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001082915/https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf] In its accompanying statement, the Political and Security Committee appraisingly mentioned “151 [apprehended] suspected smugglers and traffickers and […] 551 [neutralized] assets” in full knowledge of the Presidency’s mixed assessment of its efforts.509Political and Security Committee, CFSP Report – Our priorities in 2019 CFSP Report – Our priorities in 2019, 09/10/2019, https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001082915/https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf]
The letter explicitly incriminates EU officials and establishes a direct link – by the EU itself – between the commission of crimes against “migrants” in Libya and the policies the EU pursued in the Mediterranean and Libya. It proved the EU’s full knowledge of the extent of the crimes committed and the “positive” conclusions the EU drew from this: the reduction of migrant arrivals in Europe. The EU accepted the crimes in Libya as a means of deterrence as well as its ultimate goal of preventing arrivals to Europe at all human cost, and even increasing these costs by proactive actions such as supporting the training of the Libyan ‘coastguards’.
In response to Member States’ concerns within the COREPER about redeploying naval assets as a potential “pull factor” in 2020, the EEAS wrote that the migration flow had decreased under Sophia despite the deployment of its naval assets since. This indicates, inter alia, that European naval assets patrolled the areas off the Libyan coast “where chances to conduct rescue operations are lower.”510EEAS, Meeting of the Council (Foreign Affairs) on 17 February 2020 - Preparation c) Libya 5995/2020, 12/02/2020, https://www.statewatch.org/media/documents/news/2020/feb/eu-eeas-note-coreper-operation-sophia-rescue-5995-20.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001083219/https://www.statewatch.org/media/documents/news/2020/feb/eu-eeas-note-coreper-operation-sophia-rescue-5995-20.pdf]
The latter statement delineates once again the intentional withdrawal of ships from critical areas with increased risk of distress at sea to avoid the obligation to rescue ‘migrants’. Despite the drop in arrivals, the increase in drownings, and dramatic increase in deportations to Libya, COREPER was not yet satisfied and still worried its policy was not enough of a deterrent and had to be reassured by the EEAS.
As of October 2019, Sophia had trained more than 335 members of the Libyan coastguard and provided 450 million EUR for migration projects in Libya, 355 million EUR of which through the EUTF for Africa, 90 million EUR in bilateral assistance and 100 million EUR through the EUTF Asylum, Migration and Integration Fund.511Political and Security Committee, CFSP Report – Our priorities in 2019 CFSP Report – Our priorities in 2019, 09/10/2019, https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001082915/https://data.consilium.europa.eu/doc/document/ST-12674-2019-INIT/en/pdf]
Alluding to the policy as a whole, one EU official implicated in the process voiced remorse. The person said that it was an “eyes-closed policy” and that they “let people be rescued by the Libyan coastguard knowing that their fate in Libya is catastrophic.” Reemphasizing this point, the person stated that “the problem is that we let migrants be rescued by the Libyan coastguard. It was part of dissuading migrants from coming.”512Interviewee I2
VIIIForeign Affairs Ministers involved in the authorization of Operation Sophia
The Foreign Affairs Ministers who unanimously adopted the Foreign Affairs Council decision 2015/788 on 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED).
All Foreign Affairs Ministers in office who unanimously adopted the Foreign Affairs Council decision 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), which incorporated the training of the Libyan ‘coastguards’ to the mandate of Sophia.
[1] See Commission Report for more detailed information.
DKey individuals
Suspects
-
Bert Koenders>
2014–2017
The NetherlandsMinister of Foreign Affairs
-
Frank Walter Steinmeier>
2013–2017
GermanyGerman Minister of Foreign Affairs
-
Jean-Marc Ayrault>
-
Philip Hammond>
2014–2016
United KingdomUK Minister for Foreign Affairs
-
Sebastian Kurz>
-
Pierre Vimont>
2010–2015
European External Action Service (EEAS)Executive Secretary
-
Christian Leffler>
2015–2020
European External Action Service (EEAS)Deputy Secretary General for Economic and Global Issues
-
Maciej Popowski>
2016–2020
European CommissionDeputy Director DG NEAR
-
Paolo Gentiloni>
Involved
-
Antti Hartikainen>
04/2013–05/2015
European External Action Service (EEAS)Head of EUBAM Libya
-
Charles Flanagan>
06/2014–03/2018
Council of the European UnionForeign Minister of Ireland
-
Ioannis Kasoulides>
03/2013–03/2018
Council of the European UnionForeign Minister of Cypruus
-
Jean Asselborn>
07/2004–11/2023
Council of the European UnionForeign Minister of Luxembourg
-
José Garcia-Margallo y Marfil>
12/2011–11/2016
Council of the European UnionSpainForeign Minister
-
Karl Erjavec>
02/2012–09/2018
Council of the European UnionForeign Minister of Slovenia
-
Kristian Jensen>
06/2015–11/2016
Council of the European UnionForeign Minister of Denmark
-
Laurent Fabius>
2012–02/2016
FranceForeign Minister
-
Lazar Comanescu>
11/2015–01/2017
Council of the European UnionForeign Minister of Romania
-
Marina Kaljurand>
07/2015–11/2016
Council of the European UnionForeign Minister of Estonia
-
Miro Kovac>
01/2016–10/2016
Council of the European UnionForeign Minister of Croatia
-
Miroslav Lajcak>
04/2012–2020
Visegrad GroupCouncil of the European UnionForeign Minister
-
Nikos Kotzias>
11/2015–10/2018
Council of the European UnionForeign Minister of Greece
-
Daniel Mitov>
08/2014–01/2017
Council of the European UnionForeign Minister of Bulgaria
-
Didiers Reynders>
12/2011–11/2019
Council of the European UnionForeign Minister of Belgium
-
George Vella>
03/2013–06/2017
MaltaCouncil of the European UnionForeign Minister
-
Augusto Santos Silva>
11/2015–2022
Council of the European UnionForeign Minister of Portugal
-
Linas Antanas Linkevicius>
12/2012–2020
The European CouncilForeign Minister of Lithuania
-
Lubomir Zaoralek>
01/2014–12/2017
Visegrad GroupCouncil of the European UnionForeign Minister of the Czech Republic
-
Margot Wallström>
10/2014–11/2019
Council of the European UnionForeign Minister of Sweden
-
Péter Szijjarto>
11/2014–
Visegrad GroupCouncil of the European UnionForeign Minister of Hungary
-
Sofie From-Emmesberg>
2018–2020
Council of the European UnionEuropean External Action Service (EEAS)Chair of Political and Security Committee
-
Timo Soini>
05/2015–06/2019
Council of the European UnionForeign Minister of Finland
-
Witold Waszczykowski>
10/2015–01/2018
Visegrad GroupCouncil of the European UnionForeign Minister of Poland
Related
- 275Interviewee I2
- 276Consolidated version of the Treaty on European Union, article 16(2), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
- 277Council of the EU, The Council of the European Union, 17/07/2019, https://www.consilium.europa.eu/en/council-eu/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143917/https://www.consilium.europa.eu/en/council-eu/]
- 278Consolidated version of the Treaty on European Union, article 16(1), http://data.europa.eu/eli/treaty/teu_2012/oj, retrieved on 24/09/2020 [https://web.archive.org/web/20200621142407/https://eur-lex.europa.eu/eli/treaty/teu_2012/oj]
- 279Ibid.
III
European Commission
AExecutive Summary
The European Commission was one of the principal architects and implementors of the criminal enterprise in the Central Mediterranean. One of the European Union’s main institutions, it formally acts as the “politically independent executive arm” of the EU. It is responsible for implementing decisions, allocating funds, proposing, and drawing up legislation, and plays an important role “in developing the EU's overall strategy.”
The Commission was led by two different Presidents during the timeframe of the communication: José Manuel Barroso and Jean-Claude Juncker. During their respective time in office, they were directing and assuming substantial control over the end of Mare Nostrum, the development of maritime operations such as Triton and Sophia, the criminalization campaigns of Search and Rescue NGOs, and the construction of and contracting with Libyan militias.
A series of actions perpetrated by the Commission at all levels of its hierarchy contribute to its criminal responsibility in the frame of the current communication. In October 2013, a “Task Force Mediterranean” was introduced under a mandate of the European Council and the Justice and Home Affairs Council, chaired by the Commission. This Task Force outlined the elements of the border externalization project that would be realized throughout the following years. Its work and vision prove the long-term planning of the criminal policies discussed in this Communication in regard to the training of the Libyan coastguard as well as the development of the surveillance network necessary to build a system to capture and forcibly transfer “migrants” to Libyan detention camps via the LYCG and prevent rescue and disembarkation on EU shores.
Against this background, in July 2014, Home Affairs Commissioner Cecilia Malmström and Italian Interior Minister Angelino Alfano introduced the replacement of Mare Nostrum with a Frontex operation. Subsequently, the College of Commissioners was implicated in the conceptualization and launch of Triton. Statements made by Cecilia Malmström demonstrate that the Commission was fully aware that Triton would never be able to replicate the life-saving functions of Mare Nostrum. Thereafter, the renewal and reinforcement of the operation was enshrined in several major policy documents produced by the Commission. Stopping migration was therefore accepted as a process in which deterrence could only be achieved through decreasing rescue capacities and, ultimately, the deaths of thousands of migrants.
In a series of documents, communications, and actions rolled out in 2015, the Commission set the framework for its planned response to the migratory “pressures” and its plans to externalize migration policy. To this end, on 20 April 2015, High Representative Federica Mogherini and Commissioner Avramopoulos introduced a 10-point action plan. The Plan presented immediate actions to be taken in response to the crisis situation in the Mediterranean.
A few days later, 13 May 2015, the European Agenda on Migration was presented by the Commission. The main objective of the European Agenda on Migration was to improve migration “management.” This further included an increased number of assets and geographical expansion for Triton to “restore the level of intervention provided under the former Italian ‘Mare Nostrum’ Operation.”513European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 3. Triton never reached previous levels of the Italian Operation, nor integrated proper search and rescue functions. But the acknowledgement of its insufficient operational evidences awareness of its contribution to the sharply increasing death toll in the Mediterranean.
The Commission also supported and promoted the criminalization of NGOs conducting search and rescue missions in the Central Mediterranean as part of its official response to the situation. One of the means to this end was the drafting of the NGOs’ code of conduct, which resulted in a critical decrease in the presence of rescue NGOs in the Central Mediterranean. This step was consistent with the replacement of Mare Nostrum with Triton, the common strand being the withdrawal of rescue services from the Mediteranean, be them institutional or private, using the lethal human costs to reinforce the deterrence-based policy of arrival prevention.
On 18 May 2015, the Common Security and Defense Policy operation EUNAVFOR MED Sophia. Introduced by the Foreign Affairs Council and managed with the involvement of the EEAS, at first Sophia was primarily tasked with combating the “smuggling” of people in the Mediterranean. The operation followed the same rationale of Triton: rendering sea crossing more dangerous. By destroying their vessels, smugglers started using less expensive and less safe boats.
In September 2015, the Commission introduced the EUTF, the structure through which the Libya-based policy will be financed. During this time, Vice-President Mogherini already began talking with Libya.
In December 2015, DG HOME introduced a proposal to turn Frontex into the European Border and Coastguard, increasing its competencies and size, and took steps towards the realization of the surveillance network EUROSUR. The Commission was actively working on the increasing securitization of migration and border externalization and the preparation of a sophisticated system to orchestrate the interception of ‘migrants’ by Libyan proxies.
Amidst the planning for the extension of Operation Sophia’s mandate to train the Libyan ‘coastguard’ in early 2016, DG HOME attended a series of conferences where its representatives, and those of Operation Sophia, were explicitly told by several international organizations that such an endeavor would breach international law and violate the principle of non-refoulement. The EU was explicitly told that human rights training would not be enough to change these parameters. The destruction of boats was explicitly mentioned in this context. But nonetheless Sophia’s mandate expansion was approved.
The training of the Libyan ‘coastguard’ by Sophia, the expansion of surveillance networks, the attempt to establish a Libyan MRCC with a declared SAR zone, the enhancing of Frontex’ capacities, these projects involved the Commission and were aimed to achieve the same one goal: total operational control over the Central Mediterranean route, whilst remaining legally unaccountable.
The withdrawal of European Search and Rescue services went hand in hand with the Commission’s plan to equip, train and task the LYCG with Search and Capture of all asylees fleeing Libya, and their subsequent exposure to Crimes Against Humanity in DCIM prisons.
BOrganizational Structure
IGeneral Overview
The European Commission has legislative, regulatory and enforcing capacities, making it the sole EU body able to come up with legislation. As such, it implements decisions and allocates funds thus making it a pivotal institution in carrying out EU’s strategy. The Commission also represents the EU internationally, including in the negotiation of international agreements on behalf of the Council of the European Union (the Council).514Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/] In the case of foreign and security policies, the High Representative for Foreign Affairs and Security Policy (High Representative) is tasked with drafting negotiation recommendations and presenting them to the Council for authorization.515Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/] Within the scope of “shared competencies”, which almost always include foreign affairs agreements, all EU Member States “also have to give their mandate for negotiations.”516Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/] If the Commission wishes to diverge from its initial mandate, the Council issues a new mandate.517Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/] Both bodies carry the responsibility to ensure compatibility with EU law.518Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/] Despite the Commission leading the negotiations, it does not sign nor adopt the agreement, a duty which falls to the Council.519Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/]
At the relevant period the European Commission was composed of 28 Commissioners, one from each EU Member State, collectively forming the College of Commissioners. They assume the decision-making power and political leadership within the Commission.520European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en]
The President of the Commission is part of the College of Commissioners but plays a unique role as its leader, in terms of “political guidance;” implementation of policies; as the representative of the Commission to other EU bodies; and as chair of Commission meetings.521European Union, EU Presidents – who does what?, 28/07/2020, https://europa.eu/european-union/about-eu/presidents_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122357/https://europa.eu/european-union/about-eu/presidents_en] The College is supported by personal cabinets and thirty-three Directorates-General.522European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en]
The Commission’s administrative bodies under its direction comprise almost 32 000 European civil servants. These administrative bodies, also called the “services”, are split into different departments named a Directorates-General, such as Budget, Environment, and Migration and Home Affairs. These policy departments, the Directorates-General, “develop, implement and manage EU policy, law, and funding programs.”523European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en] At the top of each DG is a Director-General, who reports directly to the relevant European Commissioner,524European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] the politically appointed member of the Commission responsible for that policy area. The Director-General is typically supported by one or more Deputy Directors-General. Directorates are further divided into units for specific areas.
The European Commission also has a diplomatic service, the European External Action Service (EEAS). This service assists the High Representative for Foreign Affairs and Security Policy (High Representative). Both are tasked with enacting the EU’s Common Foreign and Security Policy (CSDP).525EEAS, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/node/82_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122627/https://eeas.europa.eu/headquarters/headquarters-homepage/82/node/82_en] The EEAS is divided, as the Directorates-General, into directorates for geographical and thematic areas such as Africa, Middle East, human rights, and migration, and has a series of crisis response departments. EEAS staff is also responsible for the management of EU Offices and Delegations around the globe. These represent the EU internationally, functioning as a diplomatic liaison between the EU and the “host country.”526EEAS, About the European External Action Service (EEAS), 25/11/2019, https://eeas.europa.eu/headquarters/headquarters-homepage/82/node/82_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122627/https://eeas.europa.eu/headquarters/headquarters-homepage/82/node/82_en]
IIDecision-making process
The European Commission is the sole EU body which can initiate legislation and write communications, new policies, and legal instruments.527European Commission, Decision-making process, https://ec.europa.eu/info/strategy/decision-making-process_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122753/https://ec.europa.eu/info/strategy/decision-making-process_en] The President of the Commission defines the policy agenda which is then transformed into strategic objectives and an “annual work programme” by the Commissioners.528European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] Consequently, the President can set the priorities and tone of the Commission’s work. Within the Commission, decisions are meant to be agreed upon by all Commissioners.529European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] This entails an assumption of responsibility for all decisions made by the Commission regardless of personal involvement or majority voting.530European Commission, Decision-making during weekly meetings, https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122918/https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en]
Depending on the level of political importance of a decision, an initiative is decided upon by the Commissioners at their weekly meetings.531European Commission, Decision-making during weekly meetings, https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122918/https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en] Generally, decisions are made by consensus, but a vote may take place.532European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en]
The Commissioners assume “political leadership.”533European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] Once their decision is made, the relevant Directorate-General and subsequent agencies have to take up the subject and draft a communication or a legislative proposal.534European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] The legal service must approve the text which is then recirculated to the Commissioners for final approval.535European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en]
Within the Commission, migration policies are traditionally in the portfolio of the Directorate-General Migration and Home Affairs (DG HOME). Given Libya’s geographic location, the Directorate-General for Neighborhood Policy and Enlargement Negotiations (DG NEAR) is also implicated in the concerned policies due to its strong relations with neighboring transit countries. Another participant is the Directorate-General for International Cooperation and Development (DG DEVCO) as the responsible directorate for cooperation with third countries and development aid. Finally, the Directorate-General for European Civil Protection and Humanitarian Aid Operations (DG ECHO) is supposed to ensure the protection of civilians and administer humanitarian aid along migration routes.
The European External Action Service (EEAS) Is frequently involved in migration policies, especially through its dialogue with the EU Delegations in countries of origin or of transit, or in the Mediterranean, through the launch and monitoring of military maritime operations.
IIIThe College of Commissioners
The Commission was led by two different Presidents during the timeframe of this communication and was composed of 28 Commissioners between 2014 and 2019. Its first President José Manuel Barroso remained in office until October 2014. He was succeeded by Jean-Claude Juncker. During the latter’s term, the Commission underwent significant changes with regards to its structure and decision-making process which substantially affected its work during the period covered by this Communication.
Barroso’s Commission largely adhered to the hitherto typical Commission working style, though triggering a shift towards interstate governmentality. Juncker implemented a new decisional process which responded to the peculiar nature of this Commission compared to its predecessors.
This change was foremost political in nature and in simplest terms substantially politicized the Commission in comparison to its more bureaucratic character under Barroso and previous Presidents. As such, the Commission moved from a bottom-up approach to policymaking, in which the Directorate-Generals had significant agency in drafting proposals, to a politicized top-down approach, in which the College assumed extensive control over the policy-making process.
Understanding this revamp allows to pinpoint responsibilities and highlight implication of the different participants from within the College. By multiplying points of intervention by the political level, the new system attributed responsibilities to these additional individuals who became involved in elaborating and implementing the criminal policies in the Central Mediterranean.
The expansion of the scope of these responsibilities were at once vertical and horizontal. The increased political oversight in the decision-making process meant that responsibility is ‘deeper’. At the same time, the decompartmentalization of policy elaboration, that entailed transversality of mandates and competences, meant that responsibility is broader. It extended to Commissioners directly and indirectly concerned by migration issues, but also to their staff members, in particular heads and deputy heads of cabinets, as well as cabinet members entrusted with migration issues. Moreover, the collegiality principle existing within the College and prescribing unanimity for policy adoption, in addition to the commissioners’ collective responsibility, assigned responsibility to the entirety of its members.
The Commission, and particularly its College, has been found to have taken an active role in designing criminal policies aiming at deterring “migrants” from coming to Europe. The new decisional framework imagined by President Juncker was particularly efficient to this end. Policymakers were constantly and intensively “innovating” together, to design new instruments aiming at legally and financially enabling civil servants to act on the ground. These instruments had concrete and dramatic implications during those five years, which could not and were not ignored by the very people who decided and were charged with constantly monitoring them.
(a) Institutional Context
The Barroso Commission
The somewhat bureaucratic nature of Barroso's Commission dictates less political oversight over migration policies developed in 2014. The relevant Commissioners under Barroso comprised High Representative and Vice President Catherine Ashton, Commissioner for Migration and Home Affairs Cecilia Malmström, Commissioner for Development and Humanitarian Aid Karel de Gucht, and Commissioner for Enlargement and European Neighborhood Policy Štefan Füle.536European Commission, The Members of the Barroso Commission, 16/02/2010, https://ec.europa.eu/archives/commission_2010-2014/members/index_en.htm, retrieved on 24/09/2020 [https://web.archive.org/web/20250111140806/https://ec.europa.eu/archives/commission_2010-2014/members/index_en.htm] All of these Commissioners left office with Barroso in October 2014, except for Malmström who became Commissioner for Trade under Juncker.
Under Barroso, and in parallel to the EU’s expansion, the President’s role increased in power.537BEUNDERMAN, M., “EU Commission sees civil servants’ power grow,” EU Observer, 22/02/2007, https://euobserver.com/political/23553, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123252/https://euobserver.com/political/23553] The Commission was even described as “presidential”.538BEUNDERMAN, M., “EU Commission sees civil servants’ power grow,” EU Observer, 22/02/2007, https://euobserver.com/political/23553, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123252/https://euobserver.com/political/23553] One symptom of this increasingly “presidential” system was Barroso’s power to distribute Commissioner portfolios according to his own wishes, as opposed to the common practice of awarding the largest Member States the most important portfolios.539FULLER, T., “Barroso insists he will control portfolios: More women sought as EU commissioners,” The International Herald Tribune, 23/07/2004, http://www.iht.com/articles/2004/07/23/union_ed3__1.php, retrieved on 27/10/2007 [https://web.archive.org/web/20071025031757/http://www.iht.com/articles/2004/07/23/union_ed3__1.php] His mandate also saw an increase in the power of the Secretariat-General of the Commission.540BEUNDERMAN, M., “EU Commission sees civil servants’ power grow,” EU Observer, 22/02/2007, https://euobserver.com/political/23553, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123252/https://euobserver.com/political/23553] As such, the latter “crucially chair[ed] the weekly meetings of the commissioner’s cabinet chiefs which pre-cook[ed] many decisions ahead of the actual commission meeting.”541BEUNDERMAN, M., “EU Commission sees civil servants’ power grow,” EU Observer, 22/02/2007, https://euobserver.com/political/23553, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123252/https://euobserver.com/political/23553] Simultaneously, the EU decisively shifted towards an intergovernmental functioning during Barroso’s term, shifting the balance of power in favor of the different Councils and withdrawing significant leadership capacities from the Commission.542BEUNDERMAN, M., “EU Commission sees civil servants’ power grow,” EU Observer, 22/02/2007, https://euobserver.com/political/23553, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123252/https://euobserver.com/political/23553]*
The Juncker Commission
The Commission which took office 1 November 2014, saw for the first time its President “elected”.543European Commission, A New start for Europe, 11/06/2014, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123531/https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567] Following the Parliamentary elections of 2014, the European Parliament elected the leader of the winning party (the “Spitzenkandidat”of the European People's Party) as President, who had explicitly campaigned to head the Commission.544European Commission, European Parliament elects Juncker Commission, 22/10/2014,https://ec.europa.eu/commission/presscorner/detail/es/IP_14_1192, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123838/https://ec.europa.eu/commission/presscorner/detail/es/IP_14_1192] Furthermore, one of the top priorities of Mr. Juncker himself was to enhance the politization of his team: “The Commission is political. And I want it to be more political. Indeed, it will be highly political.”545European Commission, A New start for Europe, 11/06/2014, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123531/https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567] To this end, he concretely changed the organizational structure of the College of Commissioners, and notably introduced a hierarchy between members that impacted its sociology.546European Commission, A New start for Europe, 11/06/2014, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567, retrieved on 24/09/2020 [https://web.archive.org/web/20200924123531/https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_14_567] In line with this development, the College under Juncker’s presidency included the most former ministers: “5 former Prime Ministers, 4 Deputy Prime Ministers and 19 former Ministers.”547KASSIM, H. and LAFFAN, B., “The Juncker Presidency: The ‘Political Commission’ in Practice,” 2019 Journal of Common Market Studies, 57(S1), https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941, retrieved on 24/09/2020 [https://web.archive.org/web/20200924124612/https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941] The underlying objective of the personification of the European elections by Jean-Claude Juncker was to increase voter interest for the EU.548KASSIM, H. and LAFFAN, B., “The Juncker Presidency: The ‘Political Commission’ in Practice,” 2019 Journal of Common Market Studies, 57(S1), https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941, retrieved on 24/09/2020 [https://web.archive.org/web/20200924124612/https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941] Greater politicization of the College was also envisaged as a means of consolidating its authority vis-à-vis Member States.549SCHMIDT, V., A., “Politicization in the EU: between national politics and EU political dynamics,” 2019, Journal of European Public Policy, 26(7), https://www.tandfonline.com/doi/abs/10.1080/13501763.2019.1619189, retrieved on 24/09/2020 [https://web.archive.org/web/20200924124902/https://www.tandfonline.com/doi/abs/10.1080/13501763.2019.1619189] The underlying idea was to model the organ after national systems, where ministers are placed under the authority of the head of government. Implementing this sort of “government of the Union” was supposed to generate a genuine counterpart to States’ power, by confronting them with a similar model. Added to the theoretically supranational character of the College, relations between the EU and its members were therefore to be rebalanced.550BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf]
Contrary to these predictions, what emerged from this new framework was a complete submission of the College of Commissioners to the “strategical” considerations of Member States. As a matter of fact, far from limiting the phenomenon, this new structuration amplified it by leading to greater confusion of interests between Member States and what was conceived by the College as the European general interest. The institution was never the counterweight it aspired to become.551BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] As described in the section on the European Council, this was likely caused by European Council President Tusk’s seizing of power on migration policy and his dismissal at times of the Commission’s input.
Within the scope of this Communication, the relevant Commissioners were First Vice-President Frans Timmermans (Better Regulation, Inter-Institutional Relations, Rule of Law and Charter of Fundamental Rights), High Representative Federica Mogherini (Foreign Affairs and Security Policy), Johannes Hahn (European Neighborhood Policy and Enlargement Negotiations), Dimitris Avramopoulos (Migration, Home Affairs and Citizenship), Neven Mimica (International Cooperation and Development), Cecilia Malmström (Trade), and Christos Stylianides (Humanitarian Aid and Crisis Management).
IVThe Structure
(a) College of Commissioners
The President
The president of the Commission defines the Commission’s policy agenda which is then transformed into strategic objectives and an “annual work programme” by the Commissioners.552European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] Consequently, the President can set the priorities and tone of the Commission’s work. They further have the power to restructure the Commission’s functioning and decision-making processes as demonstrated in this report. The President of the Commission finally delegates specialized portfolios to each of the Commission’s members.553European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en]
The Commissioners
As previously described, there are 27, previously 28, Commissioners, one from each EU Member State, who collectively form the College of Commissioners. They are selected by the Council and the President-elect of the Commission before they are vetted and confirmed by the European Parliament.554European Parliament, How are the Commission President and Commissioners appointed?, https://www.europarl.europa.eu/news/en/faq/8/how-are-the-commission-president-and-commissioners-appointed, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125250/https://www.europarl.europa.eu/news/en/faq/8/how-are-the-commission-president-and-commissioners-appointed] They assume the decision-making power and political leadership within the Commission.555European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en] Each Commissioner is supported by their personal cabinet—between five and ten counselors—providing them with political guidance. They provide each commissioner with orientations that are adopted collectively and then translated into concrete actions by the thirty-three Directorate Generals supporting their work.
The Vice-Presidents
The President selects his Vice-Presidents among the Commissioners, one of whom is always the High Representative of the Union for Foreign Affairs and Security Policy.556European Sources Online, Information Guide European Commission, 10/2013, http://aei.pitt.edu/74893/1/European_Commission.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125503/http://aei.pitt.edu/74893/1/European_Commission.pdf], p. 4. It is not specified in the Treaty how many Vice-Presidents should be appointed, leaving it at the President’s discretion. Barroso expanded the number of Vice-Presidents to seven and then eight557DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf] and created the post of First Vice-President.558European Commission, President Barroso unveils his new team, 27/11/2009, https://cordis.europa.eu/article/id/22463-barroso-unveils-new-commission, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125755/https://ec.europa.eu/commission/presscorner/detail/en/IP_09_1837] Under his administration, the Vice-Presidents did not exert any considerable power over their fellow Commissioners.559DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf] This was mostly due to the clearly defined portfolios assigned to each of the Commissioners.560DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf]
Juncker reduced the number of Vice-Presidents back to seven but imbued them with substantial power,561DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf] elevating them over their colleagues in the process but not with regards to the final decision.562European Commission, Decision-making during weekly meetings, https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122918/https://ec.europa.eu/info/political-leadership/decision-making-during-weekly-meetings_en] As detailed below, this new hierarchy is reflected in the creation of project teams. Compounding this power unequally, the Vice-Presidents are able to “promote – or… filter out – the projects of their commissioners,” when the President meets the Vice-Presidents during the drafting of the annual work programme.563DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf]
The High Representative of the Union for Foreign Affairs and Security Policy
As opposed to the other Commissioners, the High Representative is instated by the European Council “with the agreement of the President of the Commission.”564EUR-Lex, Glossary of Summaries: HIGH REPRESENTATIVE OF THE UNION FOR FOREIGN AFFAIRS AND SECURITY POLICY, https://eur-lex.europa.eu/summary/glossary/high_representative_cfsp.html, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125924/https://eur-lex.europa.eu/summary/glossary/high_representative_cfsp.html] They hold a 5-year mandate.565EUR-Lex, Glossary of Summaries: HIGH REPRESENTATIVE OF THE UNION FOR FOREIGN AFFAIRS AND SECURITY POLICY, https://eur-lex.europa.eu/summary/glossary/high_representative_cfsp.html, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125924/https://eur-lex.europa.eu/summary/glossary/high_representative_cfsp.html] The High Representative is in charge of the Common Foreign and Security Policy as well as the Common Security and Deference Policy. They are assisted by the EEAS to carry out these tasks. As outlined earlier, the High Representative is also responsible for drafting negotiation recommendations for foreign affairs and security matters.566Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/]
The Project Teams
At the center of the newly created “hierarchy” were the “project teams” in which a varying number of Commissioners collaborate on a specific subject within the framework of Juncker’s priorities under the supervision of a Vice-President. In consequence, the College, President Juncker, First Vice-President Frans Timmermans, and the six Vice-Presidents (including High Representative Federica Mogherini) were now subject to a hierarchy567BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] in which the “ordinary Commissioners” were suddenly subordinated to the Vice-Presidents. The latter found themselves overseeing multiple policy areas instead of being assigned a single one.568DALLISON, P., et. al., “The Companion to the European Commission,” European voice, February 2015, http://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125609/https://www.politico.eu/wp-content/uploads/2015/02/Commission-companion-full.pdf] This operating mode was meant to ensure dynamic interaction between all College members despite its large size and prevent partitioning of the decision-making process.569BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] The following team projects were relevant in the scope of this Communication:
The team on “better regulation, inter-institutional relations, the rule of law, the Charter of Fundamental Rights and sustainable development” led by First Vice-President Frans Timmermans and composed of the entire College.
The team on “a stronger global actor” was led by High Representative Mogherini and involved Commissioners Johannes Hahn (NEAR), Cecilia Malmström (Trade), Neven Mimica (DEVCO), and Christos Stylianides (humanitarian aid and crisis Management).
Within this constellation, Commissioners and Vice-Presidents were now “mutually dependent on each other.”570BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf]* Vice-Presidents held power over Commissioners because the latter needed their support to add a new initiative to the Commission Work Programme or to the College's agenda.571BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] As a general rule, the President would not put any new initiative on the Commission Work Programme or on the agenda of the College that did not receive the backing of a Vice-President.572European Commission, Questions and Answers: The Juncker Commission, 10/09/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131539/https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523] Yet at the same time, a Vice-President depended on the contributions of the Commissioners of his project team to carry out the task assigned to him.573BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf]
(b) Relevant Commissioners and Vice-Presidents
Collaboration between Frans Timmermans and Dimitris Avramopoulos
In 2015, as the “refugee crisis” unfolded “a new policy on migration” project team, headed by Vice-President Frans Timmermans, was created.574European Commission, The Juncker Commission: one year on, 30/10/2015, https://ec.europa.eu/commission/sites/beta-political/files/juncker-commission-1-year_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924130505/https://ec.europa.eu/commission/sites/beta-political/files/juncker-commission-1-year_en.pdf] Timmermans was supported by Commissioners Avramopoulos and Jourova, and Vice-President Georgieva.575European Commission, The Juncker Commission: one year on, 30/10/2015, https://ec.europa.eu/commission/sites/beta-political/files/juncker-commission-1-year_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924130505/https://ec.europa.eu/commission/sites/beta-political/files/juncker-commission-1-year_en.pdf]
Timmermans was a key figure not only in his capacity as team leader of this project but also as First Vice-President and “right-hand of the President.”576European Commission, Questions and Answers: The Juncker Commission, 10/09/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131539/https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523] This meant notably that Jean-Claude Juncker would be more susceptible to Timmermans’ advice. But also, that Mr. Timmermans was “ensur[ing] that every Commission proposal respect[ed] the principles of subsidiarity and proportionality.”577European Commission, Questions and Answers: The Juncker Commission, 10/09/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131539/https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523]
Another central role can be assigned to Commissioner for Migration and Home Affairs Dimitris Avramopoulos, whose portfolio was directly related to the subject at hand. Linkage between him and Timmermans was logical since the mandate of the Commissioner for Home Affairs is closely related to respecting the Charter of Fundamental Rights, whose enforcement was entrusted to Timmermans.578European Commission, Questions and Answers: The Juncker Commission, 10/09/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131539/https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523] However, unlike Avramopoulos who was the responsible Commissioner for DG HOME, Timmermans did not rely on an administrative service to assist him. Instead, he could only count, in addition to his cabinet, on a thematic unit made up of a few people within the General Secretariat. Another option at his disposal was to assign tasks directly to DG HOME. However, this was conditioned on Avramopoulos’ acceptance. Hence, work efficiency of the College on the question of migration was dependent on the good relationship between the Commissioner for Home Affairs and his referent Vice President.579European Commission, Questions and Answers: The Juncker Commission, 10/09/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131539/https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_523]
Georgieva, in charge of Budget and Human Resources, tripled the level of funding allocated to the “refugee crisis” in Europe.580World Bank, Kristalina Georgieva, https://www.banquemondiale.org/fr/about/people/k/kristalina-georgieva, retrieved on 24/09/2020 [https://web.archive.org/web/20200924130913/https://www.banquemondiale.org/fr/about/people/k/kristalina-georgieva] The budget increased from 3.7 billion euro in 2015 to 10 billion euro over the 2015-2016 period.581European Commission, Report from the Commission to the European Parliament, the Council and the Court of Auditors, 2015 Annual Management and Performance Report for the EU Budget, 05/07/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0446, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131109/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0446] However this funding was not provided in humanitarian aids but rather funded border control operations such as Triton.582European Commission, Report from the Commission to the European Parliament, the Council and the Court of Auditors, 2015 Annual Management and Performance Report for the EU Budget, 05/07/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0446, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131109/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0446]
Federica Mogherini and the Commissioners’ Group on External Action (CGEA)
High Representative and Vice-President Federica Mogherini assumed another key position. During the relevant timeframe, it was agreed that she would “steer and coordinate the Commission’s work” with regard to external action, through a Commissioners’ Group on External Action.583BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] This Group would meet at least once a month in varying thematic and/or geographic formats, according to the needs identified by the High Representative or by the President.584BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] Mogherini was thus supervising Commissioners Hahn (European Neighbourhood Policy and Enlargement Negotiations), Mimica (International Cooperation and Development), Stylianides (Humanitarian Aid and Crisis Management) and Malmström (Trade), jointly constituting the CGEA.585BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] It was also agreed that whenever she would see fit, she would ask the Commissioner for European Neighbourhood Policy and Enlargement Negotiations, Hahn, to “deputise for her ‘in areas related to Commission competence’.”586BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] This system explains the numerous joint statements and coordinated initiatives between Mogherini and Hahn during the refugee “crisis”.587European Commission, EU Trust Fund for Africa adopts €46 million programme to support integrated migration and border management in Libya, 28/07/2017, https://www.statewatch.org/news/2017/jul/eu-com-libya-borders-prel.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131925/https://www.statewatch.org/media/documents/news/2017/jul/eu-com-libya-borders-prel.pdf] 588European Commission, EU Trust Fund for Africa adopts €90 million programme on protection of migrants and improved migration management in Libya, 12/04/2017, http://europa.eu/rapid/press-release_IP-17-951_en.htm, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132019/https://ec.europa.eu/commission/presscorner/detail/en/IP_17_951] 589European Commission, EU Trust Fund for Africa: additional €90.5 million to strengthen border management and protection of migrants in North Africa, 06/07/2018,https://ec.europa.eu/trustfundforafrica/all-news-and-stories/eu-trust-fund-africa-additional-eu905-million-strengthen-border-management-and_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132129/https://ec.europa.eu/trustfundforafrica/all-news-and-stories/eu-trust-fund-africa-additional-eu905-million-strengthen-border-management-and_en]
The International Dimension unit of the Secretariat-General of the Commission as well as the EEAS’ Policy Coordination division functioned as a joint supporting body for the CGEA.590BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] Drawing from this “joint secretariat,” Mogherini and Juncker were in charge of developing the CGEA meeting agendas and assigning “which of the Commissioners [would] prepare inputs and which one [would take] the lead.”591BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf] Nevertheless, the CGEA was not empowered “to adopt official decisions and did not replace the standard procedure of decision-making within the Commission.”592BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf]
VCabinets
Cabinet members are directly appointed by the Commissioners to assist them in their work593European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] and coordinate every initiative in the areas of responsibility of their Commissioners.594European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] This coordinative function intervenes at two levels. Vertically, members of staff will push their Commissioner’s ideas within the Directorates-General and inform the Commission services of the College's work.595European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] They also filter and adapt the proposals prepared by these Directorates-General before referring them to the Commissioner.596European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] In consequence, the cabinets and the services sustain a “close relationship…[and] are collectively responsible for working closely together in order to ensure effective implementation of President's policy guidelines and the College's priorities.”597European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf]* But cabinets also act horizontally, by meeting their peers prior to the reunion of the College to already discuss proposals and to ensure coherence amongst the various propositions requesting approval.598European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] These meetings consist either of the “weekly ‘]’ meetings of Heads of Cabinet [or] the special meetings of Heads of Cabinet, which may precede them.” The latter gathers staff members specialized in the discussed policy.599European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] During these reunions, members of cabinets defend the position of their referent Commissioners from whom they received a clear mandate.600European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf]
Thus, the cabinets are inevitable actors in the decision-making process. They are highly implicated in the policy elaboration and oversee everything that requires their Commissioner’s approval. It can be assumed that the cabinets have reviewed all incriminating policies and moreover actively contributed to providing inputs and guidance for some, if not all, of them.
Cabinets and their referent Commissioners draw a complex relation of power. Depending on their mandate, Commissioners can render their cabinets more, or less, powerful. The chiefs of staff assume a central position in these power dynamics, whose “effectiveness” differ according to their individual abilities to “play the game.”601HEATH, R., “Post-Brexit European Commission Playbook power matrix,” Politico, 14/07/2016, https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132909/https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/] A, if not the, central figure in the 2014 – 2019 Commission constellation was Juncker’s chief of staff Martin Selmayr. Going beyond the usual power plays, Selmayr is said to have had “virtual control of dozens of policies” and to have “inspire[d] everything from admiration to fear to resentment.”602European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] In February 2018, Selmayr was made Secretary-General of the Commission in a highly controversial move by Juncker. When the Parliament reacted negatively, Juncker threatened to resign in an act of protest.603MAURICE, E., “Selmayr case scars Parliament and Commission,” EU Observer, 18/04/2018, https://euobserver.com/institutional/141640, retrieved on 24/09/2020 [https://web.archive.org/web/20200924133051/https://euobserver.com/institutional/141640]
An incident in June 2018 demonstrates the subsequent autonomy Selmayr assumed in the matters that are of concern to this Communication. At the time, in an unusual move, a mini-summit on migration was convened by the Commission.604HERSZENHORN, D. and BARIGAZZI, J., “Clash of the EU consiglieri,” Politico, 22/06/2018, https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924133228/https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/] Following the publication of President Tusk’s draft European Council conclusions ahead of the EC’s meeting, Selmayr disseminated a far more detailed and encompassing “rival-document” which was to be discussed in a meeting with the Sherpas.605HERSZENHORN, D. and BARIGAZZI, J., “Clash of the EU consiglieri,” Politico, 22/06/2018, https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924133228/https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/] Selmayr’s draft described the Libyan ‘coastguard’ as the central element “to stop the departing of boats… and prevent illegal migration” and specifically outlined the need for an increased assistance to the Libyan coastguards.606European Commission, Statement of Heads of State or Government of and the President of the European Commission, https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2018/06/CommissionMiniSummitDraft.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924133339/https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2018/06/CommissionMiniSummitDraft.pdf] By contrast, the European Council draft was much milder in language and merely repeated its commitment to assist the Libyan ‘coastguard’ and combat smuggling activities.607General Secretariat of the Council, European Council meeting (28 June 2018), https://www.politico.eu/wp-content/uploads/2018/06/draftEucoConclusionsJune.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20210121054135/https://www.politico.eu/wp-content/uploads/2018/06/draftEucoConclusionsJune.pdf] Italy was publicly enraged by Selmayr’s draft and accused it of centering on German political objectives.608European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] Merkel responded to this by “ditching” the draft.609HERSZENHORN, D. and BARIGAZZI, J., “Clash of the EU consiglieri,” Politico, 22/06/2018, https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924133228/https://www.politico.eu/article/martin-selmayr-migration-summit-clash-of-the-eu-consiglieri-piotr-serafin/] It was not the only time the German national Selmayr was exposed for defending interests of the German government in the framing of migration policies. The strength of the connection between Selmayr and his native country’s government on migration was often highlighted by external actors, who relied on several episodes, including the drafting of a solidarity text by Selmayr in favor of Germany on resettlement issues.610Interviewee I12
Generally, Selmayr has been described as one of, “if not the most powerful” people in the Commission.611Interviewee I4 According to one source, Selmayr centralized the decision-making process and was in a position to propose ideas and strategies.612Interviewee I14 He moreover had the power to decide whether to forward a disagreement between two cabinets to the College or resolve it himself.613Interviewee I4 As such, he reportedly directly managed the migration crisis and had significant influence over Juncker, Avramopoulos and Malmstrom.614Interviewee I12
Reportedly, the power and influence did not necessarily depend on the official position within the Commission hierarchy but was rather contingent on personal relations and proactive engagement.615HEATH, R., “Post-Brexit European Commission Playbook power matrix,” Politico, 14/07/2016, https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132909/https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/] As such, the most powerful and effective people after Juncker himself and his chief of staff Selmayr were Vice-President Frans Timmermans and his head of cabinet Ben Smulders.616HEATH, R., “Post-Brexit European Commission Playbook power matrix,” Politico, 14/07/2016, https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132909/https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/] In terms of relevancy for this report, Mogherini was found to have been a powerful Vice-President with a less powerful chief of staff Stefano Manservisi and notably Commissioner Hahn (Neighbourhood) was rated rather weak with a powerful chief of staff, Michael Karnitschnig.617HEATH, R., “Post-Brexit European Commission Playbook power matrix,” Politico, 14/07/2016, https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132909/https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/] Commissioner Avramopoulous (Migration) as well as his chief of staff were both considered rather weak, similarly to Commissioner Mimica (Development).618HEATH, R., “Post-Brexit European Commission Playbook power matrix,” Politico, 14/07/2016, https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132909/https://www.politico.eu/interactive/post-brexit-european-commission-playbook-power-matrix/] Among these powerful members, several were Foreign Ministers in their respective states before being appointed Commissioners: Timmermans in the Netherlands, Mogherini in Italy, Avramopoulous in Greece (before being appointed Minister of Defense in 2013). These occurrences certainly participate in the politicization of the Cabinet itself, relating to the aforementioned politicization of the Commission by Juncker.
VIDirectorates-General
The Commissioners are supported by several policy departments which are called Directorates-General. The Directorates-General are tasked with “develop[ing], implement[ing] and manag[ing] EU policy, law and funding programs,” as well as “deal[ing] with particular administrative issues.”619European Commission, How the Commission is organized, https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122254/https://ec.europa.eu/info/about-european-commission/organisational-structure/how-commission-organised_en] Whereas Commissioners set the political priorities, the Directorates-General head the bureaucratic bodies called “services.” The services form a largely permanent administration.620European Commission, Overview, 07/05/2020, https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924121743/https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en] In addition to the inter-Commission communication, the Permanent Representations of the Member States in Brussels are always in contact with these services, for the drafting of the texts they produce.
(a) The structure of a Directorate-General
Directorate-Generals are organized hierarchically according to policy area.621European Commission, Directorate-General Migration and Home Affairs Organization Chart, https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143813/https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf] Every Directorate-General has its own priorities and perceptions according to the policy area it works on. A Director-General is assisted by different staff members. Each Director-General also has a Deputy Director-General.622European Commission, Directorate-General Migration and Home Affairs Organization Chart, https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143813/https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf] The Directorate-General’s organizational structure constantly evolves. Each Deputy-Director General oversees a certain number of so-called “directorates” according to her policy area.623European Commission, Directorate-General Migration and Home Affairs Organization Chart, https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143813/https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf] The directorates are further split up into units. Units are headed by a “head of unit” and deal with very specific topics.624European Commission, Directorate-General Migration and Home Affairs Organization Chart, https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143813/https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf]
Coordination plays an important role in the work of the Directorates-General. There is an “inter-cabinet coordination system” and an “inter-Directorate-General coordination system.625Interviewee I15 Both refer to the practice of sending proposals and drafts back and forth between all the relevant cabinets or Directorate-Generals for “opinions and input.”626Interviewee I15 According to one source, “the one who does the coordination really does the drafting in the end.” They further stated that coordination units keep everybody positively engaged, so that nobody feels left behind, while also making sure that the outcome does not look “like a Christmas tree.”627European Commission, Directorate-General Migration and Home Affairs Organization Chart, https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924143813/https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-home_en.pdf] However, there is not one single model according to which policies are crafted and the process differs every time. There is no single author of a proposal or draft, given the important number of units usually involved. Indeed, as shown below, each policy within the scope of this Communication has gone through various levels, has been reviewed by several units, has been assessed by multiple individuals, but none and no one addressed its apparent criminality.
(b) Relevant Directorates-General
The most relevant Directorates-General who were actively involved in the conceptualization of the discussed policies have been the Directorates-General for Migration and Home Affairs; Neighborhood and Enlargement Negotiations; Development and International Cooperation; and European Civil Protection and Humanitarian Aid Operations.
(c) Directorate-General for Migration and Home Affairs
As every Directorate-General, the Directorate General for Migration and Home Affairs (DG HOME) is headed by a Director-General assisted by a number of directors.628European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf]
Stefano Manservisi was the Director-General until 2014.629KING, T., “Mogherini appoints Manservisi as head of private office,” Politico 13/09/2014, https://www.politico.eu/article/mogherini-appoints-manservisi-as-head-of-private-office/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144337/https://www.politico.eu/article/mogherini-appoints-manservisi-as-head-of-private-office/] Notably, Manservisi later became High Representative Mogherini’s head of cabinet and then the Director-General for International Cooperation and Development in May 2016. Matthias Ruete who took over in May 2014, held this office until February 2018.630European Commission, Matthias Ruete, https://ec.europa.eu/info/sites/info/files/cv-matthias-ruete_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144806/https://ec.europa.eu/info/sites/info/files/cv-matthias-ruete_en.pdf] Paraskevi Michou succeeded him and remained in office until 2020.631European Commission, European Commission appoints Paraskevi Michou as new Director-General for Migration and Home Affairs, 31/01/2018, https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_18_544/IP_18_544_EN.pdf,retrieved on 03/06/2025 [/web/20250603205203/https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_18_544/IP_18_544_EN.pdf]
The Directors-General were supported by a varying number of relevant directors during the examined time period. In 2014, those were Reinhard Priebe, Director of Internal Security, Laurent Muschel, Director for Migration and Asylum, and Marta Cygan, Director for Strategy and delivery steering.632European Union, Official directory of the European Union 2014, 14/04/2014, https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144944/https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea] In 2015, the relevant supporting positions comprised Marta Cygan, Director of the renamed Strategy and General Affairs subdivision, and Luigi Soreca, Director for Security.633European Union, Official directory of the European Union 2015, 03/07/2015, https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search, retrieved 24/09/2020 [https://web.archive.org/web/20200924145147/https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search] Migration had been split into three divisions with Belinda Pyke heading Migration and Mobility as well as Migration and Security Funds and Laurent Muschel leading Migration and Protection.634European Union, Official directory of the European Union 2015, 03/07/2015, https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search, retrieved 24/09/2020 [https://web.archive.org/web/20200924145147/https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search]
In 2016, the Directorate was once again reorganized and now had two Deputy Directors-General responsible for all units related to Migration and Security. Olivier Onidi was the Deputy for Migration between May and November and then became the Deputy Director for Security and has remained there until 2021.635European Commission, Olivier Onidi, https://ec.europa.eu/info/sites/info/files/cv-olivier-onidi_en_0.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145242/https://ec.europa.eu/info/sites/info/files/cv-olivier-onidi_en_0.pdf] Simon Mordue took over Migration from December 2016 until August 2019.636European Commission, Simon Mordue, https://ec.europa.eu/info/sites/info/files/cv-simon-mordue_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145323/https://ec.europa.eu/info/sites/info/files/cv-simon-mordue_en.pdf] The Deputy-Director for Migration specifically was responsible for “curbing irregular migration… saving lives at sea and securing the EU’s external borders.”637European Commission, Migration and asylum, https://ec.europa.eu/info/topics/migration-and-asylum_en, retrieved on 24/09/2020 [https://web.archive.org/web/20221219054930/https://commission.europa.eu/topics/migration-and-asylum_en]
General overview and responsibilities
Throughout the observed period, DG HOME has grown considerably. Its 2014 activity report indicates that, in 2013, 322 people were working for DG HOME and another 75 in the Shared Resources Directorate and the Shared Internal Audit Capability.638European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf] In comparison, DG HOME had 556 staff members in 2017.639European Commission, 2017 Annual Activity Report DG Migration and Home Affairs, 30/04/2018, https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145953/https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf] In 2020, DG HOME still counted 550 staff members.640European Commission, Migration and Home Affairs, Who we are, https://ec.europa.eu/home-affairs/who-we-are_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150108/https://ec.europa.eu/home-affairs/who-we-are_en]
According to its self-description, this Directorate-General works “to build an open and safer Europe”.641European Commission, Migration and Home affairs, About us, https://ec.europa.eu/home-affairs/who-we-are/about-us_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150004/https://ec.europa.eu/home-affairs/who-we-are/about-us_en] DG Home is responsible for building a common EU migration and asylum policy and “ensuring EU security.” 642European Commission, 2015 Annual Activity Report DG Migration and Home Affairs, 13/05/2016, https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145527/https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf] All matters of migration policy including “border management” fall within its area of responsibility.643European Commission, 2015 Annual Activity Report DG Migration and Home Affairs, 13/05/2016, https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145527/https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf]
On an internal level, “DG HOME has only limited space for maneuver within the boundaries of the EU…[and] therefore move[s] towards the external dimension of migration, operating in dialogue with countries of origin.”644OPSTELTEN, J., “The European Union Trust Fund for Africa: How Normative is EU Development Policy?,” Universiteit Utrecht, 20/07/2018, http://dspace.library.uu.nl/bitstream/handle/1874/375160/Opstelten.pdf, retrieved on 24/09/2020 Indeed, DG Home focused on partnering with origin and transit countries during the relevant time frame. This focus partially resulted from the Member States’ unwillingness to cede control over migration matters within their own borders, which has been demonstrated by failed redistribution schemes. DG HOME consequently collaborated with non-EU countries in order to establish partnerships and “jointly tackle common challenges.”645European Commission, Migration and Home affairs, About us, https://ec.europa.eu/home-affairs/who-we-are/about-us_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150004/https://ec.europa.eu/home-affairs/who-we-are/about-us_en]
Involvement in Agencies
Due to its mandate, DG HOME acts as a so-called “partner” for six agencies, including “Frontex, [the] European Police Office (Europol)…, [and the] European Asylum Support Office (EASO).”646European Commission, 2017 Annual Activity Report DG Migration and Home Affairs, 30/04/2018, https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145953/https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf] This means that the Commission “supervise[s] the implementation of EU treaties and legislation” through DG HOME in these institutions.647Frontex, EU Partners, https://frontex.europa.eu/partners/eu-partners/european-commission/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150214/https://frontex.europa.eu/partners/eu-partners/european-commission/] DG HOME therefore participates in the governance and supervision of these agencies as a member of their Management Boards. Moreover, “the operational units for particular policies are involved in numerous contacts at working level, coordination meetings, providing opinions on annual work programs, draft budgets, staff policy plan and monitoring of their implementation.”648European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf]
Specifically, the cooperation between DG HOME and Frontex is crucial. DG HOME’s policies are executed by Frontex. During their elaboration, DG HOME receive support from the agency, “particularly by providing its technical expertise.”649Frontex, EU Partners, https://frontex.europa.eu/partners/eu-partners/european-commission/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150214/https://frontex.europa.eu/partners/eu-partners/european-commission/] As such, Frontex is asked for “input at the consultation stage of legislative proposals [and regularly attends] Commission-run expert groups and networks (such as the European Network on Migration).”650Frontex, EU Partners, https://frontex.europa.eu/partners/eu-partners/european-commission/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150214/https://frontex.europa.eu/partners/eu-partners/european-commission/] The Directorate’s work and ultimate policy output, therefore, is substantially affected by Frontex’ influence and input.
Migration & Security Funds
Finally, DG HOME manages the Asylum, Migration and Integration Fund (AMIF) and the Internal Security Fund (ISF) which support DG HOME’s work.651European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p] Between 2014 and 2020, the European Union significantly increased funding for border management and migration-related policies. In 2014, it initially allocated 1.5 billion euros to the (ISF).652European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en] By 2017, the EU legislature had raised the ISF budget to at least 2 billion euros.653European Commission, 2017 Annual Activity Report DG Migration and Home Affairs, 30/04/2018, https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145953/https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf], p. 28. In 2018, the combined budgets of the ISF and the Asylum, Migration and Integration Fund (AMIF) reached 10.9 billion euros.654European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p]
Whereas AMIF funds “various aspects of migration management,” the Internal Security Fund finances policies in the area of “police cooperation, prevention and fight against serious cross-border crime, terrorism, violent extremism and border management.”655European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p] The funds place significant emphasis on the “external dimension” of migration which covers resettlement, capacity-building, returns, IT and surveillance systems, “irregular” migration and asylum.656European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p] In 2016, DG HOME contributed 75.8 million euros to Operations Triton and Poseidon, and increased their spending for “border protection” through the ISF by 300% compared to 2014 and 2015.657European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en]
Funds were further given to Member States directly to develop their border management capacities, including the expansion of EUROSUR and Member States’ border surveillance capacities.658European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en] 659European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p] Some sources at the time suspected that DG HOME had acquired the competence to fund projects in third countries directly.660DEN HERTOG, L., “Money Talks Mapping the funding for EU external migration policy,” Centre for European Policy Studies, November 2016, http://aei.pitt.edu/81699/1/LSE_No_95_LdH_Mapping_Funding_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150531/http://aei.pitt.edu/81699/1/LSE_No_95_LdH_Mapping_Funding_final.pdf] This is confirmed in the 2019 annual report as well as the Regional Development and Protection Programme for Africa Libya fact sheet which states that from 2016 to 2023, AMIF financed projects in Libya with a budget of approximately 10.68 million euros which included “capacity building… on migration issues”.661European Commission, Regional Development and Protection Programme for North Africa (RDPP NA) in Libya, 26/05/2021, https://home-affairs.ec.europa.eu/publication/regional-development-and-protection-programme-north-africa-rdpp-na-libya_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627140654/https://home-affairs.ec.europa.eu/publication/regional-development-and-protection-programme-north-africa-rdpp-na-libya_en]; European Commission, 2019 Annual Activity Report DG Migration and Home Affairs, 16/06/2020, retrieved on 27/06/2024 [https://web.archive.org/web/20240627140757/https://commission.europa.eu/publications/annual-activity-report-2019-migration-and-home-affairs_en]
Moreover, AMIF contributed funds to the training of the LYCG through their 30 million euros contribution to the EUTF.662European Commission, 2019 Annual Activity Report DG Migration and Home Affairs, 16/06/2020, https://commission.europa.eu/publications/annual-activity-report-2019-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627140757/https://commission.europa.eu/publications/annual-activity-report-2019-migration-and-home-affairs_en] Beyond funding, DG HOME also sits on the Board of the European Union Emergency Trust Fund for Africa, as evidenced by the minutes of all EUTF Board meetings. DG HOME Board members explicitly identified by name during the relevant time period include Mr. Onidi (2nd meeting), Laurent Muschel (3rd meeting), Simon Mordue (4th meeting), Ms. Cygan (5th meeting), Paraskevi Michou (6th meeting), and J. Luchner (7thmeeting).663EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting] 664EUTF, MINUTES OF THE FOURTH BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 24/04/2018, https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163313/https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20] 665EUTF, COMPTE RENDU DE LA CINQUIÈME RÉUNION DU CONSEIL D’ADMINISTRATION DU FONDS FIDUCIAIRE D’URGENCE DE L’UE POUR L’AFRIQUE (FFUE), 21/09/2018, https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164818/https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting] 666EUTF, SEVENTH BOARD MEETING OF THE EUROPEAN UNION EMERGENCY TRUST FUND FOR AFRICA, 29/09/2020, https://trust-fund-for-africa.europa.eu/document/download/bd507b14-ac5b-4604-880f-9a6e0d7c60c5_en?filename=Minutes%207th%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627165423/https://trust-fund-for-africa.europa.eu/document/download/bd507b14-ac5b-4604-880f-9a6e0d7c60c5_en?filename=Minutes%207th%20Board%20meeting%20] The EUTF is the EU’s main tool to train the LYCG and improve Libya’s overall capacities to orchestrate the criminal pushback policies described in this communication.[1]
DG Home and migration policies
During the relevant period, DG HOME increasingly securitized its approach to migration. François Crépeau, the UN Special Rapporteur on Human Rights of Migrants, stated in his report on the future of Home Affairs policies that “the increasing competence of the EU in the field of migration has not always been accompanied by a corresponding increased guarantee of rights for those who find themselves the objects of migration policy, the «migrants» themselves, and in particular “irregular migrants”. I regret that, within the EU policy context, irregular migration remains largely viewed as a security concern that must be stopped.”667European Commission, Public consultation–Debate on the future of Home Affairs policies: An open and safe Europe –what next? Contribution by Mr. François Crépeau United Nations Special Rapporteur on the human rights of migrants, 01/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-is-new/public-consultation/2013/pdf/0027/organisations/special-rapporteur-on-the-human-rights-of-migrants_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150639/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-is-new/public-consultation/2013/pdf/0027/organisations/special-rapporteur-on-the-human-rights-of-migrants_en.pdf] DG HOME’s prioritization of migration as a security issue would further render it subjectable to military action.
Officials within DG HOME have continuously created a flawed dichotomy between ‘disorderly’ and ‘orderly’ migration. At an event in September 2017, Simon Mordue for instance stated that the EU needed to “do everything [they could] to disincentivize irregular migration.”668Oxford’s Centre on Migration Policy and Society (COMPAS), Residents with irregular status: challenges for cities in a European policy context, 05/02/2018, https://youtu.be/7KDl4RWvmjs, retrieved on 24/09/2020 Pathways for legal migration understood as “orderly migration” were put forward as the key strategy for a “safe” journey to Europe. Yet part of this strategy was to criminalize migration in general by putting an emphasis on human trafficking and smuggling when talking about migration on the Central Mediterranean route.669Oxford’s Centre on Migration Policy and Society (COMPAS), Residents with irregular status: challenges for cities in a European policy context, 05/02/2018, https://youtu.be/7KDl4RWvmjs, retrieved on 24/09/2020 Rhetorically, DG HOME often privileged the fight against smuggler networks which needed to be “dismantled” to “reduce the loss of lives” while continuously deprioritizing helping migrants in distress.670International Centre for Migration Policy Development, Vienna Conference on Migration 2017, December 2017, https://www.icmpd.org/file/download/49551/file/ICMPD_VMC_publication%25202017.pdf, retrieved on 02/09/2024, pp. 37-38 [https://web.archive.org/web/20240903191650/https://www.icmpd.org/file/download/49551/file/ICMPD_VMC_publication%25202017.pdf] Martin Schieffer who was a chief of unit from Directorate C Migration and Protection, declared for example repeatedly to his entourage that search and rescue operations were only a side aspect of Triton.671Interviewee I7 DG HOME’s dangerous narrative of orderly versus disorderly migration and the false pretense of migrants having the possibility to avoid ‘illegal crossings’ form the crucial context for DG HOME’s role as a main actor in designing the EU’s external migration policy.672CARRERA, S., RADESCU, R. and RESLOW, N., “EU external migration policies: A preliminary mapping of the instruments, the actors and their priorities,” 2015, EURA-net project, https://cris.maastrichtuniversity.nl/en/publications/eu-external-migration-policies-a-preliminary-mapping-of-the-instr, retrieved on 24/09/2020 [https://web.archive.org/web/20200924151409/https://cris.maastrichtuniversity.nl/en/publications/eu-external-migration-policies-a-preliminary-mapping-of-the-instr]
During the relevant timeframe, DG HOME saw the replacement of “disorderly” migration with “orderly” flows as an alternative to the status quo. Return and resettlement, legal routes and economic migration were presented as a safe long-term strategy, both for the cohesion of the EU and “migrants” themselves. However, opportunities for “legal migration” appeared as empty promises when considering how many individuals were dying at sea. The project of a redistribution mechanism which was hailed as a solution to the 2015 refugee crisis for instance never materialized, whereas obstacles on refugees’ paths to Europe constantly grew.
DG HOME perceived return and readmission agreements as a success without ever evaluating neither their efficiency necessity nor secondary effects, including on fundamental human rights. Reports stressed return and readmission rates and tried to justify why numbers were not in line with promises made by DG HOME.673European Commission, 2018 Annual Activity Report DG Migration and Home Affairs, 20/06/2019, https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150322/https://ec.europa.eu/info/sites/info/files/home_aar_2018_final.p] 674European Commission, 2017 Annual Activity Report DG Migration and Home Affairs, 30/04/2018, https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145953/https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf] 675European Commission, 2015 Annual Activity Report DG Migration and Home Affairs, 13/05/2016, https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145527/https://ec.europa.eu/info/sites/info/files/activity-report-2015-dg-home_may2016_en.pdf] Interviews with Nick Westcott and Christian Leffler of the EEAS have confirmed that within any negotiation, DG HOME sought to advance matters of return and readmission which led to disagreements between both entities, and would never put focus on human rights issues or the rule of law.676Interviewee I17 677Interviewee I18
This was also reflected in changing Directorates and sub-directorates concerning migration after Ruete was appointed. As such different directorates and sub-directorates for legal migration and irregular migration and border management were conceived.678European Commission, Directorate-General Migration and Home Affairs Organigram, 01/02/2016, http://ec.europa.eu/dgs/home-affairs/who-we-are/dg-home-affairs-chart/index_en.htm, retrieved on 03/03/2016 [https://web.archive.org/web/20160303235202/http://ec.europa.eu/dgs/home-affairs/who-we-are/dg-home-affairs-chart/index_en.htm]
One source working in DG HOME told us that the units had a large amount of discretion when it came to implementation of EU policies, as well as the supporting of these implementations.679Interviewee I7 This means that their personnel assumed a certain level of responsibility. Another source from Directorate C Migration and Protection declared that the units always had an opportunity to give their opinion and advice.680[56] Interviewee I6 Even though the units did not put in place the main policy directions, they actively participated in the securitization of the discourse and therefore in the criminal policies that were implemented.
(d) Directorate-General for Neighborhood and Enlargement Negotiations
General overview and responsibilities
The Directorate-General for Neighborhood and Enlargement Negotiations’ (DG NEAR) mission is to “take forward the EU's neighborhood and enlargement policies”.681European Commission, The Directorate-General, 28/11/2019, https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152043/https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en] DG NEAR has strong links with the EEAS. It has various objectives, including to support the countries wishing to join the EU, to “[implement] assistance actions in Europe’s eastern and southern neighborhood,” and to develop and take care of the relationship between the EU and neighboring countries,682European Commission, The Directorate-General, 28/11/2019, https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152043/https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en] such as Libya. DG NEAR is further in charge of the EU financial instrument for enlargement and neighborhood countries, the European Neighborhood Instrument which was created in 2014. The Directorate has approximately “1,650 staff members in Brussels and in the EU Delegations in the partner countries.”683European Commission, The Directorate-General, 28/11/2019, https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152043/https://ec.europa.eu/neighbourhood-enlargement/about/directorate-general_en] DG NEAR was headed by Director-General Christian Danielsson from 2013 to 2020 and is under the authority of the Commissioner for Neighborhood and Enlargement. This position was filled by Stefan Füle until October 2014 and subsequently by Johannes Hahn.
DG NEAR is structured into sub-Directorates. Similarly to DG HOME, DG NEAR also underwent structural changes throughout the relevant time period. In 2014, most of the sub-directorates referred to specific countries in the immediate neighborhood or were part of “regional cooperation.”684European Union, Official directory of the European Union 2014, 14/04/2014, https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144944/https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea], p. 327. The latter was headed by Gerhard Schumann-Hitzler in 2014.685European Union, Official directory of the European Union 2014, 14/04/2014, https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144944/https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea], p. 301. In 2015, a new directorate titled “Neighborhood South” was established and managed by Michael Koehler. In April 2016,686European Commission, Maciej Popowski, https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20250407214322/https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf] a Deputy-Director for “Directorate General Neighbourhood and Enlargement Negotiations”687European Commission, Maciej Popowski, https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20250407214322/https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf] was instated. This person was Maciej Popowski who held this office until 2020, before being promoted to Acting Director-General.688European Commission, Maciej Popowski, https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20250407214322/https://commission.europa.eu/document/download/172d8357-eadb-4598-9453-e6bf4f0919e4_en?filename=cv-maciej-popowski_en.pdf] As of 2020, this sub-directorate had two units titled North Africa and Migration Assistance to Neighboring Countries689European Commission, DG NEAR Neighbourhood and Enlargement Negotiations Organization Chart, 16/09/2020, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/near-org-chart.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152400/https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/near-org-chart.pdf] though it is unclear at which time between 2018 and 2020 these were established.
DG NEAR, migration policies and Libya
DG NEAR fosters the relations between the European Union and neighboring countries, including countries of transit such as Libya. Despite Libya not having concluded a commonly used “Association Agreement with the EU,” DG NEAR engaged in bilateral cooperation with its authorities. The Directorate has its own financing instrument, positioning it as an important actor in migration policies, especially towards Libya:690European Commission, Libya, 03/09/2020, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152457/https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en] the European Neighborhood Instrument,691European Commission, Libya, 03/09/2020, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152457/https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en]which serves as a “financial instrument for bilateral cooperation with Libya,”692European Commission, Libya, 03/09/2020, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152457/https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en] with its main contribution appearing to be its pledged contribution to the EUTF totaling around 515 million euros as of June 2024.693Emergency Trust Fund for Africa, State of Play and Financial resources, https://trust-fund-for-africa.europa.eu/our-mission/state-play-and-financial-resources_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627161223/https://trust-fund-for-africa.europa.eu/our-mission/state-play-and-financial-resources_en]
DG NEAR also sits on the Board of the European Union Emergency Trust Fund for Africa. It appears that DG NEAR’s Director General and Deputy-Director General are the designated board members, with the Deputy-Director General being responsible for the North Africa Window. DG NEAR Board members explicitly identified by name during the relevant time period include: Christian Danielsson (3rd, 4th, 6th meeting)694EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting] 695EUTF, MINUTES OF THE THIRD BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 30/06/2017, https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164216/https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting] 696EUTF, MINUTES OF THE FOURTH BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 24/04/2018, https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163313/https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20] 697EUTF, SIXTH BOARD MEETING OF THE EUROPEAN UNION EMERGENCY TRUST FUND FOR AFRICA, 14/06/2019, https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627165141/https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20] and Deputy Director General Maciej Popowski (2nd, 4th, 5th, 7th meeting),698EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting] 699EUTF, MINUTES OF THE FOURTH BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 24/04/2018, https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163313/https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20] 700EUTF, COMPTE RENDU DE LA CINQUIÈME RÉUNION DU CONSEIL D’ADMINISTRATION DU FONDS FIDUCIAIRE D’URGENCE DE L’UE POUR L’AFRIQUE (FFUE), 21/09/2018, https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164818/https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting] 701EUTF, SEVENTH BOARD MEETING OF THE EUROPEAN UNION EMERGENCY TRUST FUND FOR AFRICA, 29/09/2020, https://trust-fund-for-africa.europa.eu/document/download/bd507b14-ac5b-4604-880f-9a6e0d7c60c5_en?filename=Minutes%207th%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627165423/https://trust-fund-for-africa.europa.eu/document/download/bd507b14-ac5b-4604-880f-9a6e0d7c60c5_en?filename=Minutes%207th%20Board%20meeting%20] The EUTF is the EU’s main tool to train the Libyan coastguard and improve Libya’s overall capacities to orchestrate the criminal pushback policies described in this communication.[2]
Christian Danielsson, the then Director-General of DG NEAR, affirmed that “the EU Trust Fund for Africa had confirmed its added value by contributing to effective management of migratory flows in North Africa.”702OXFAM, Le Fonds fiduciaire de l’UE pour l’Afrique Tiraillés entre la politique d’aide et les politiques migratoires, 01/2020, https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152942/https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf], p. 10.
DG NEAR also supports Libya under the Common and Security Defense Policy. As such it supervises both the civilian European Border Assistance Mission Libya (EUBAM Libya) and the military mission EUNAVFOR MED Operation Sophia.703European Commission, Libya, 03/09/2020, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152457/https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/libya_en]
(e) The Directorate-General for International Cooperation and Development
General Overview and responsibilities
The Directorate-General for International Cooperation and Development (DG DEVCO) is tasked with “design[ing] the EU’s international partnership and development policy.”704European Commission, DG DEVCO - DG for International Cooperation and Development,https://ec.europa.eu/knowledge4policy/node/6664_fr, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153050/https://ec.europa.eu/knowledge4policy/node/6664_fr] DG DEVCO’s main purpose is to implement most of the European Commission’s external assistance. To this end, it cooperates with various Commission services – including the EEAS – and the EU delegations. Partner countries and the EEAS are accordingly incorporated into DG DEVCO’s decision-making process.705European Commission, International Cooperation and Development How we work, https://ec.europa.eu/international-partnerships/about-us/how-we-work_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153522/https://ec.europa.eu/international-partnerships/about-us/how-we-work_en] DG DEVCO projects are either thematic or geographic and are funded through its various instruments including the Development Cooperation Instrument (DCI) and the European Development Fund (EDF).706European Commission, Aid spendings and projects in Libya since 2010, 26/10/2015, http://ec.europa.eu/europeaid/files/iati/XI-IATI-EC_DEVCO_C_LY.xml, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153340/https://ec.europa.eu/europeaid/files/iati/XI-IATI-EC_DEVCO_C_LY.xml]
The Directorate falls under the responsibility of the Commissioner for International Cooperation and Development. This position was previously filled by Karel de Gucht under the title of Commissioner for Development and Humanitarian Aid until January 2014. Thereafter, the position was split into a Commissioner for Development and a Commissioner for International Cooperation, Humanitarian Aid, and Crisis Response. Andris Piebalgs was the Development Commissioner until October 2014. In parallel, Kristalina Georgieva took over as International Cooperation Commissioner until October 2014. The two Commissioner positions were restructured once again and Neven Mimica succeeded as the Commissioner for International Cooperation and Development until December 2019.
In 2014, the Director General for Development and Cooperation was Fernando Frutuoso de Melo. He was succeeded by Stefano Manservisi in March 2016 who remained in office until October 2019.
DG DEVCO and migration policies and Libya
DG DEVCO is the primary directorate responsible for the European Union Emergency Trust Fund for Africa (EUTF) which conceived, implemented and evaluated projects to train the Libyan coastguard. As such, Stefano Manservisi chaired the EUTF Strategic Board during his time as Director-General from 2016 to 2019.707OXFAM, Le Fonds fiduciaire de l’UE pour l’Afrique Tiraillés entre la politique d’aide et les politiques migratoires, 01/2020, https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152942/https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf]
In addition to planning and strategic direction responsibilities, DG DEVCO also funds the EUTF through its European Development Fund and Development Cooperation Instrument. As of June 2024, the EDF pledged around 3.4 billion euros and the DCI around 352 million euros to the EUTF since its existence. In comparison, DG DEVCO has spent merely 3.2 million euros on the support of the Libyan democratic transition, including just over 200 thousand euros for enhancing human rights-based reforms in Libyan detention centers.708Emergency Trust Fund for Africa, State of Play and Financial resources, https://trust-fund-for-africa.europa.eu/our-mission/state-play-and-financial-resources_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627161223/https://trust-fund-for-africa.europa.eu/our-mission/state-play-and-financial-resources_en]
(f) The Directorate-General for European Civil Protection and Humanitarian Aid Operations
General overview and responsibilities
The Directorate-General for European Civil Protection and Humanitarian Aid Operations (DG ECHO) is responsible for offering aid and assistance in countries affected by disasters or humanitarian emergencies.709European Civil Protection and Humanitarian Aid Operations, About European Civil Protection and Humanitarian Aid Operations, 21/01/2020, https://ec.europa.eu/echo/who/about-echo_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153935/https://ec.europa.eu/echo/who/about-echo_en]
Given DG ECHO’s “Strategic Dialogue meetings” with humanitarian organizations such as UN partners (UNHCR, UNICEF), and the International Committee of the Red Cross,710European Civil Protection and Humanitarian Aid Operation, Strategic dialogues with partners, 23/01/2018, https://ec.europa.eu/echo/partnerships/relations/strategic-dialogues_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924154217/https://ec.europa.eu/echo/partnerships/relations/strategic-dialogues_en] as well as its official objectives to “preserve lives, prevent and alleviate human suffering and safeguard the integrity and dignity of populations affected by natural disasters and man-made crises,”711European Commission, DG ECHO - DG for European Civil Protection and Humanitarian Aid Operations, https://ec.europa.eu/knowledge4policy/organisation/dg-echo-dg-european-civil-protection-humanitarian-aid-operations_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924154338/https://ec.europa.eu/knowledge4policy/organisation/dg-echo-dg-european-civil-protection-humanitarian-aid-operations_en] DG ECHO should have been responsible for counteracting the EU’s lethal migration policies. Instead, it was part of the planning and implementation of a man-made crisis itself.
This is further exacerbated by DG ECHO’s situational knowledge through its regional office in Dakar which aims at providing humanitarian aid and enables its “up-to-date overview of humanitarian needs” in North Africa.712European Civil Protection and Humanitarian Aid Operations, Field Network, 10/08/2020, https://ec.europa.eu/echo/who/about-echo/field-network_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924154503/https://ec.europa.eu/echo/who/about-echo/field-network_en] DG ECHO should accordingly have had a clear picture of the suffering of «migrants» in Libya yet failed to intervene into EU policy accordingly. By function, it should have balanced DG HOME’s influence on migration issues and advocated for a better protection of human rights and a stronger humanitarian intervention in Libya. No trace of that behavior could be identified throughout our research.
DG ECHO contributed to the criminal policies through its financial and strategic contribution to the EUTF. DG ECHO sat on the EUTF Board and pledged 50 million in contributions, 10 millions of which were dispensed in 2016.713EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting]Throughout the relevant time period, DG ECHO representative (Director C of DG ECHO) A. Kaminara repeatedly underlined the success of the EUTF.714EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting] 715EUTF, MINUTES OF THE FOURTH BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 24/04/2018, https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163313/https://trust-fund-for-africa.europa.eu/document/download/ee76818a-0414-4890-8ed4-d0e1e5dbe9d6_en?filename=Minutes%204th%20EUTF%20Board%20meeting%20] 716EUTF, COMPTE RENDU DE LA CINQUIÈME RÉUNION DU CONSEIL D’ADMINISTRATION DU FONDS FIDUCIAIRE D’URGENCE DE L’UE POUR L’AFRIQUE (FFUE), 21/09/2018, https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164818/https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting]717EUTF, SIXTH BOARD MEETING OF THE EUROPEAN UNION EMERGENCY TRUST FUND FOR AFRICA, 14/06/2019, https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627165141/https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20] Notably she lauded the training of the Libyan coastguard, and even went so far as to state that it “has allowed for a successful integrated approach”718EUTF, SIXTH BOARD MEETING OF THE EUROPEAN UNION EMERGENCY TRUST FUND FOR AFRICA, 14/06/2019, https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20, retrieved on 27/06/2024 [https://web.archive.org/web/20240627165141/https://trust-fund-for-africa.europa.eu/document/download/09f4bd47-280c-4bcf-bc02-a0b307d360e7_en?filename=Minutes%206th%20Board%20meeting%20] referring to the “humanitarian aid-development nexus.”719EUTF, COMPTE RENDU DE LA CINQUIÈME RÉUNION DU CONSEIL D’ADMINISTRATION DU FONDS FIDUCIAIRE D’URGENCE DE L’UE POUR L’AFRIQUE (FFUE), 21/09/2018, https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164818/https://trust-fund-for-africa.europa.eu/document/download/b24cb1b9-ade3-4d6d-aeb7-40496b23e27d_en?filename=Minutes%205th%20EUTF%20Board%20meeting]
DG ECHO’s Directors-Generals were Claus Sorensen (2011 – August 2015) and Monique Pariat (September 2015 – 2020). The European Neighborhood, Middle East, Central and South Western Asia unit was headed by Hervé Delphin (2014-2016). In 2016, units were reorganized with the newly created Directorate C Africa, Asia, Latin America, Caribbean and Pacific being headed by Androulla Kaminara and the inclusion of a new sub-unit specifically concerned with North Africa led by Susanne Mallaun (2016).
[1] See EUTF section in European Commission Report.
[2] See EUTF section in European Commission Report.
VIIThe Overall Decision-Making Process Within the European Commission
The following section outlines the decision-making structures within the European Commission to facilitate the identification of degrees of responsibility for the criminal policies here discussed.
(a) The Barroso Commission
Under the Barroso Commission, the “political work” only occurred at the weekly College of Commissioners meetings, translating into a bottom-up approach in which the cabinets, Directorates-General and services prepared proposals without early political input from Commissioners.720European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] Notably, almost a year after Barroso’s assumption of office, Trade Commissioner Peter Mandelson spoke of an “inherent absence of initial political coherence within the College…Since Delors, the Commission has not been led from the top down …[The] power within the Commission has inexorably shifted to the Services… Priorities have not been set by Commissioners who take an overall political view [,] they have been set by individual Services…Power in the Brussels system overall has shifted to the Council.”721European Commission, Peter Mandelson EU Trade Commissioner The Idea of Europe: Can we make it live again? Speech to the University Association for Contemporary European Studies (UACES), 20/07/2005, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_05_454, retrieved on 24/09/2020 [https://web.archive.org/web/20200924154711/https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_05_454]
The supporting bodies of the Commissioners thus enjoyed relatively broad autonomy over initiatives under Barroso. This included inter-service consultations in which supporting elements such as the Directorates-General – “all services with a legitimate interest in the draft text”722European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] – would discuss and adapt proposals among each other before the College meetings. Accordingly, most of the proposals were likely ready for adoption and left little room for further debate at the College meetings.
(b) The Juncker Commission
Under Juncker’s Presidency, the new decision-making process he implemented was in line with his conception of the Commission’s role. It involved earlier implication of the political level (Commissioners and their cabinets) in the procedure.723European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] 724KASSIM, H. and LAFFAN, B., “The Juncker Presidency: The ‘Political Commission’ in Practice,” 2019 Journal of Common Market Studies, 57(S1), https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941, retrieved on 24/09/2020 [https://web.archive.org/web/20200924124612/https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12941] As such, a Vice-President and Commissioner(s) would seek approval from the President on an “issues paper” which would suggest a “specific initiative” and “an outline of possible high level policy options.”725European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] This paper would then be discussed at “Orientation Debates” which “were used, from an early stage, to frame the political parameters within which services should develop a proposal, to discuss sensitive issues requiring the direct input of the College, or to develop a common approach to general political developments.”726European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] The results of these debates would “steer subsequent policy preparations and impact assessment work,”727European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] handled by the Directorates-General. Conclusively, the President and all Vice-Presidents and Commissioners were already involved in conceiving the framework of subsequent policy drafting for any initiative.
Furthermore, a “strategic Jour Fixe” meeting was added to the weekly meetings between Commissioners, their cabinet and the Director General. These weekly meetings allow Commissioners to assume full political responsibility for the work done by their services.728European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] The “strategic Jour Fixe” meeting took place bi-monthly to cover “strategic political and interinstitutional questions,”.729European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] The Vice-President whose area of competence was to be on the agenda of the strategic Jour Fixe was also present to the meeting.
As a result, “inter-service consultations” which were described earlier, “decreased in importance… and [became] a vehicle to check mainly the small print.” This was especially the case because the “political discussions within the project teams [were] carried out before the technical discussions.”730BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] The work of discussing proposals with other parts of the Commission consequently already took place before a proposal would reach the inter-service-consultations. This in line with the earlier assessment of the less proactive Directorates-General.
The Juncker Commission further specified that these consultations “[could] be launched on the initiative of a Commissioner in agreement with [their referent] Vice-President.[731European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] In conformity with the President’s wishes, the importance of the political level was therefore reinforced in the new organization.732BORCHARDT, M., “Une Commission Européenne politique grâce à une nouvelle organization,” Notre Europe Institut Jacques Delors, 19/12/2016, https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924125044/https://institutdelors.eu/wp-content/uploads/2018/01/commissionuepolitique-borchardt-ijd-dec16.pdf] These consultations were also complemented by “inter-service groups” which were created for “key initiatives of the Commission Work Programme” and overseen by the Secretariat-General.733European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] These were tasked with the “prepar[ation] of draft, including the relevant Impact Assessment.”734European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf] Meetings and internal decision-making in the new organization can be summed up as such:735European Commission, Communication from the President to the Commission, The Working Methods of the European Commission 2014-2019, 11/11/2014, https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924132702/https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf]
|
Meetings |
Who participates? |
What frequency? |
|---|---|---|
|
Orientation Debates |
College of Commissioners |
4-6 times a year. |
|
Meetings of the inter-service groups |
Members of DGs and relevant departments including the legal department, chaired by the Secretariat General or by the DG concerned |
As often as necessary to cover important aspects of the impact assessment process, usually between 5 and 7 meetings per topic |
|
“Jour fixe” |
Commissioner and Director General of the concerned DG |
Weekly |
|
"Jour fixe stratégique” |
VP, Commissioner and Director General of the concerned DG+ Secretariat General and legal department |
At least once every two months |
|
Project teams’ meetings |
Concerned Project team (VP + commissioners) + all DGs and services having a legitimate interest in the policy. |
About 1 meeting per month, regularity depending on the subject |
|
Inter-services consultations |
All DGs and services with a legitimate interest in the policy |
Standard procedure, regularity depending on the subject and time in the process |
|
“Special meetings of Heads of Cabinet” |
Cabinet members specialist of the discussed policy |
Weekly (usually Thursday and / or Friday) |
|
“Hebdos” meetings |
Heads of cabinets |
Weekly (Monday) |
|
College meetings |
College of commissioners |
Weekly (Wednesday or Tuesday when meeting in Strasbourg) |
Commission Meetings and Internal Decision-making
CImplication in Criminal Policies
The Commission’s policy responses to migratory flows in the Central Mediterranean were conceived and executed within the preceding decision-making processes and thus differed from previous organizational structures. As such, the Commission’s political layer composed of its Commissioners and Vice-Presidents was highly implicated in every step, from policy direction to approval, concrete design and implementation of the policies pursuant to which the alleged crimes against humanity committed against the targeted population were committed.
IEnd of Mare Nostrum and Launch of Triton
(a) Task Force Mediterranean
In October 2013, a “Task Force Mediterranean” was introduced under a mandate of the European Council and the Justice and Home Affairs Council.736European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] Its goal was to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.737European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] Chaired by the Commission, Task Force meetings were attended by representatives from all EU Member States, the EEAS and some EU agencies (Frontex, EUROPOL, European Asylum Support Office, Fundamental Rights Agency, European Maritime Safety Agency).738European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] Within the Commission, the Task Force was chaired by Laurent Muschel, head of the Directorate B Migration and Asylum in DG HOME at the time, with Giorgio Di Blasi as his right-hand.739Interviewee I15
Two Communications were published by the Task Force. The first Communication was issued on 4 December 2013 and self-describes as having been prompted by the tragic loss of life of over 500 migrants near Lampedusa.740European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. This Communication first lays out its supposed aim of dealing with the prevention of further drownings that is immediately followed up by putting the action imperative on a “strong external oriented component“.741European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf] This emphasizes that “cooperation with third countries,”742European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf] as explicitly stated in this Communication, and thus the basis for the later pushback by proxy, was a central element of the EU’s plan to deal with migration routes on the Central Mediterranean from the very beginning. It also sheds more light on the abandonment of Mare Nostrum in favor of stopping migrants from reaching European shores at all human cost. The Communication explicitly puts this cooperation within the context of “strengthening [transit countries’] capacities to manage mixed migration flows."743European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 5. Libya is among the countries mentioned as a prime target for “new dialogues on migration, mobility and security.”744European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 6.
In a more detailed account, the Communication, written in December of 2013, already explicitly lays out the blueprint for what would later crystallize within Operation Sophia, establishing the “particular importance [of] promot[ing] the development of an integrated border management system” and identifying the EUBAM mission and the Sahara-Mediterranean project as deliverers of this “assistance”.745European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. In the very same paragraph, the Communication mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,”746European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing the EU and MS’ full awareness of the conditions which they subsequently subjected thousands of migrants to through orchestrated pushbacks by proxy. These discussions crucially frame and either preceded or ran concurrently with Italy’s decision to end Mare Nostrum as a national project.
These strategic considerations are further reinforced by the mention of the implementation of EUROSUR, the EU surveillance system that would later become crucial in surveilling the Mediterranean for pushback rather than SAR purposes.[1] To this end, one of the detailed action items identified here concerns the Seahorse Mediterranean network to “be established by 2015” which is outlined to “allow the participating [EU Mediterranean Member States and North African countries] to directly exchange factual information on incidents and patrols with each other in near-real time via satellite communication.”747European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 9. This is only reinforced by the subsequent paragraph suggesting that “the possible involvement of countries of departure in maritime surveillance operations should be discussed, within the Frontex and EUROSUR legal framework.”
The Communication then goes on to explicitly state that action taken should provide “assistance aimed at encouraging and strengthening the capacities of the third countries to combat, at the point of origin, the networks of smuggling human beings, and thus prevent immigrants from being endangered by smuggling; improve control of their land borders and coastlines; [and] establish mechanisms enabling the safe return of irregular migrants to the nearest and safest departure point.”748European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf] Never mentioned directly, the Communication alludes to the concrete training of the LYCG by referencing Frontex’ possible role in “capacity building for search and rescue in the North African coastal states.”749European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 10. Beneath the veneer of “anti-smuggling“ and human rights friendly language, this Communication prepares the ground for the systematic policies discussed in the first Communication to the International Criminal Court (OTP-CR-237/19),750Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the Internationql Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], p. 65. specifically concerning the training of the Libyan coastguard as well as the development of the surveillance network necessary to forego European ships from rescuing migrants in the Mediterranean and enable the LYCG to intercept and pushback migrants to detention camps instead.
Throughout, migration is immediately securitized and put into a context of “trafficking, […] smuggling […] and criminal networks” and the “fight against irregular migration”. Under the guise of “prevent[ing] migrants from undertaking dangerous journeys,” which is mentioned twice in the report, representatives from all Member States and most EU institutions hint at what would become the underlying strategy of all further measures taken in the Central Mediterranean: deterring “migrants” from attempting to cross at all human cost. Similarly, the practice of paying rhetoric lip service to search and rescue with a clear practical prioritization of deterrence and pushback can be found here too: within the “five main areas of action”, the Task Force identifies “cooperation with third countries” first and cites “saving [the] lives of migrants“ later on only in combination with the expansion of “border surveillance”.751European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 2-3. This foreshadows the later practice of withdrawing EU SAR capacities from the Mediterranean while increasing surveillance and orchestrating pushbacks by proxy.
A later paragraph on ensuring compliance with international human rights standards, and, crucially, “the principle of non-refoulement”, demonstrates the participants’ clear knowledge of their suggested actions easily lending themselves to serious and grave violations of international law. The Communication further mentions the necessity to consider “concern relating to the rights of migrants and refugees” with regard to third country cooperation.752European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 6. These were subsequently systematically ignored and bypassed in favor of the more immediate concern of stopping migrants from crossing the Mediterranean. This kind of pretense can also be found in another section on the expansion of border surveillance where “saving lives“ is consistently paired with “ensuring effective border control.”753European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 16. It is made clear that the numerous EU and MS stakeholders on the Task Force saw “information sharing” and the obtaining of an extensive “situational picture in the Mediterranean” as a key component of their third country “cooperation” policies and their “capacities to control Mediterranean maritime borders” with Frontex as the lead actor.754European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 17. Mare Nostrum is mentioned in this context, indicating possible conversations preceding Italy’s ultimatum to end Mare Nostrum without Europeanization. The ultimate intentional reduction of SAR capabilities paired with a simultaneous expansion of border surveillance through Operation Triton is made almost explicit here upon the mention of the necessity to “improve situational awareness and the capability for early detection of irregular migrants at sea.”755European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 17.
A second and apparently final Communication by the Task Force was issued in May 2014, a few months before the termination of Mare Nostrum. This Communication cites the support of EUBAM Libya in their “capacity building activities in the field of border management” among the progress made on its previously set action items.756European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. No reference is made to the Libyan coastguard yet. However, the emphasis on “rehabilitating retention centers” suggests a strategy to somewhat form the dire conditions for “migrants” in Libya into something more palatable for their later plans of migrant pushbacks to the country. It is mentioned that “several projects” are in the works to further address migration management in the Southern Mediterranean. Dropping all pretense for a moment, this Communication refers to the launch of the Seahorse Mediterranean network as a “secure maritime communication network to combat irregular migration."757European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] Just a few months after the first Communication, no mention of saving lives is made anymore and the surveillance network is confirmed to be principally concerned with combatting “irregular” migration.
Lastly, Mare Nostrum is once again mentioned in the context of “further engagement of Frontex in the Mediterranean,”758European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 6. providing more circumstantial evidence for the Task Force having assumed a critical role in the end of Mare Nostrum and the establishment of Operation Triton. Furthermore, the Communication creates a link between Mare Nostrum and future developments within Frontex, proving the criminal nature of this shift, with full knowledge of the Task Force members.
(a) A political decision
In July 2014, Home Affairs Commissioner Cecilia Malmström stated that she discussed a “‘scaled-down version’ of Mare Nostrum” with Italian Interior Minister Angelino Alfano, due to alleged limited means and resources.759“Malstrom: Frontex cannot substitute Italy’s Mare Nostrum operation,” The Times of Malta, 09/07/2014, https://timesofmalta.com/articles/view/malmstrom-frontex-cannot-substitute-italys-mare-nostrum-operation.527031, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155550/https://timesofmalta.com/articles/view/malmstrom-frontex-cannot-substitute-italys-mare-nostrum-operation.527031] This was followed by a joint press conference between Angelino Alfano and Cecilia Malmström on 27 August 2014.760European Commission, Visit of Angelino Alfano, Italian Minister for the Interior and President in office of the Council of the EU to Cecilia Malmström: joint press conference, 27/08/2014, https://audiovisual.ec.europa.eu/en/video/I-092070, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155656/https://audiovisual.ec.europa.eu/en/video/I-092070] They addressed the future of Mare Nostrum and the launch of a Frontex+ aiming at replacing Mare Nostrum.761European Commission, Visit of Angelino Alfano, Italian Minister for the Interior and President in office of the Council of the EU to Cecilia Malmström: joint press conference, 27/08/2014, https://audiovisual.ec.europa.eu/en/video/I-092070, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155656/https://audiovisual.ec.europa.eu/en/video/I-092070] It was confirmed in a joint press release that they “fully agree[d] on the launch of a “Frontex plus” operation [i.e. Triton] to ensure the control and surveillance of the European Union’s external maritime borders in the central Mediterranean, in accordance with Frontex rules. They specified that “the implementation of this operation will enable the Mare Nostrumoperation to be phased out.”762Ministère de l’intérieur, Accord entre la France et l’Italie sur la question de l’immigration irrégulière en Méditerranée centrale, 28/08/2014, https://mobile.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155822/https://mobile.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale] The official statement in French reads: “ils ont marqué leur complet accord sur le lancement d’une opération « Frontex + » chargée d’assurer le contrôle et la surveillance des frontières extérieures maritimes de l’Union Européenne en méditerranée centrale, conformément aux règles de Frontex. La mise en œuvre de cette opération permettra de mettre progressivement fin à l’opération Mare Nostrum.”.
The decision to put an end to Mare Nostrum, discussed by European Interior Ministers on the 9 and 10 October 2014 at a Justice and Home Affairs Council in Luxembourg,763UK Parliament, Justice and Home Affairs Council, 16/10/2014, https://hansard.parliament.uk/Commons/2014-10-16/debates/14101660000030/JusticeAndHomeAffairsCouncil, retrieved on 30/06/2024 [https://web.archive.org/web/20240630115613/https://hansard.parliament.uk/Commons/2014-10-16/debates/14101660000030/JusticeAndHomeAffairsCouncil] 764Interviewee I20 was confirmed during a joint press conference held on the 9 October 2014 with the European Commissioner for Home Affairs Cecilia Malmström and Angelino Alfano.765European Council, Justice and Home Affairs Council – Press Conference, 09/10/2014, https://video.consilium.europa.eu/en/webcast/b30462fc-fc62-40ce-9d8d-0e6e60557067, retrieved on 24/09/2020 [https://web.archive.org/web/20200924160054/https://video.consilium.europa.eu/en/webcast/b30462fc-fc62-40ce-9d8d-0e6e60557067] Given the role played by Home Affairs Commissioner Malmström and the preparatory work of the Task Force Mediterranean which was itself chaired by the Commission, the Commission played a substantial role in the decision to terminate the SAR-oriented Mare Nostrum and initiate the shift to the drastically scaled-back Operation Triton.
(b) Implementation of Triton
The College of Commissioners was heavily implicated in the conceptualization and launch of Triton. Once Italy requested the launch of a formal Frontex joint operation, the Commission, with Cecilia Malmström as the Commissioner responsible for migration, developed the mission’s concrete structure and operational plan together with the Management Board of Frontex, COREPER II, and Frontex Senior Staff.766Interviewee I21 It appears that Mogherini and Frontex Executive Director Rösler played major roles in the policy’s development.767Interviewee I24
Additionally, statements made by Cecilia Malmström imply that the Commission was aware that Triton would never be able to replicate the life-saving functions of Mare Nostrum.768European Commission, Statement by Commissioner Malmström after the meeting with Italian Interior Minister Alfano, 27/08/2014, https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_14_259, retrieved on 15/04/2021 [https://web.archive.org/web/20240630134900/https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_14_259] To this effect, she once stated that “it is clear that the Triton operation cannot and will not replace Mare Nostrum. The future of Mare Nostrum remains in any case an Italian decision,”769European Commission, Statement by EU Commissioner Cecilia Malmström on operation Triton, 07/10/2014, https://ec.europa.eu/commission/presscorner/detail/it/STATEMENT_14_302, retrieved on 29/09/2020 [http://web.archive.org/web/20200929121331/https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_14_302] implying that Triton’s scope was widely differed from Mare Nostrum’s search and rescue efforts and simultaneously absolving the Commission and the EU at large from responsibility by suggesting that it was Italy’s decision alone to end the operation.
Once Triton was launched, the new Commission, including Timmermans and Avramopoulos and their staff, conducted the first evaluation of Triton.770European Commission, Minutes of the 2115th meeting of the Commission 10 February 2015, 18/02/2015, https://ec.europa.eu/transparency/regdoc/rep/10061/2015/EN/10061-2015-2115-EN-F1-1.PDF, retrieved on 15/04/2021 [https://web.archive.org/web/20190609153741/https://ec.europa.eu/transparency/regdoc/rep/10061/2015/EN/10061-2015-2115-EN-F1-1.PDF] Thereafter, the renewal and reinforcement of the operation was enshrined in several major policy documents produced by the Commission which followed the decisional procedure detailed above, providing many potential points of intervention for a reassessment of the policy, in light of aggravating mass death at sea, which never materialized.
The annual activity report of DG HOME demonstrated that the main goal of Frontex in 2014 was “to support, coordinate and develop European border management in line with the EU fundamental rights charter.” In this context, the largest part of Frontex’ budget was allocated to Joint Operations in order to further improve the capabilities of Member States to tackle ‘challenging situations’ at their external borders.771European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf] Within the Commission, DG HOME coordinates and proposes the allocation of Frontex’s budget772Frontex, MANAGEMENT BOARD DECISION No24/2014of 22 October 2014 adopting the amendment of Frontex’ Programme of Work 2014 (N2) and Frontex’ Budget 2014 (N2), 22/10/2014, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929121554/https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf] which is then voted on by the Commission. Frontex could further benefit from funds managed by DG NEAR or DG DEVCO, given the external action nature of this project.773Frontex, EU Partners, https://frontex.europa.eu/partners/eu-partners/european-commission/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924150214/https://frontex.europa.eu/partners/eu-partners/european-commission/] The report further stated that:
“the Joint Operation Triton launched on 1 November 2014 aims to implement coordinated operational activities at the external sea border of the Central Mediterranean region in order to control irregular migration flows towards the territory of the Member States and to tackle cross border crime in the territorial waters of Italy and Malta. Covering also relevant parts of the Search and Rescue zones of the two Member States, it also contributes to Search and Rescue activities.”774European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf]
Just as the Task Force Mediterranean had mapped out, the primarily SAR-tasked Mare Nostrum had thus been replaced with a mission that was primarily tasked with combatting migration flows through a multipronged approach which systematically deprioritized saving lives of migrants in distress at sea. As such, the primary focus was put on “controlling” rather than rescuing migrants, with migration being criminalized and securitized through the wholesale use of “irregular migration,” ignoring migrants’ rights to seek asylum and have their cases heard in the EU, as well as the consistent linking of migration and crime. As expressed in the report, search and rescue were merely incidental tasks of this mission. These strategic and operational decisions were taken in full knowledge of and after their own repeated statements about the rising numbers of migrants dying in their attempt to reach European shores. Stopping migration was therefore accepted as a process in which deterrence could only be achieved through decreasing rescue capacities and, ultimately, the deaths of thousands of migrants.
(c) Further involvement in migration policies in the Mediterranean
In parallel, in 2014, the Commission expanded its cooperation with third countries.775European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf] The “Khartoum Process” was launched by DG HOME in partnership with African countries along the Horn of Africa Migration Route.776European Commission, 2014 Annual Activity Report Directorate-General HOME, 27/03/2015, https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924144131/https://ec.europa.eu/info/sites/info/files/activity-report-2014-dg-home_august2015_en.pdf] At the same time, DG HOME also carried out preparations to expand the European Border Surveillance system EUROSUR. One of its primary functions is to detect, prevent and combat ‘irregular’ migration and cross-border crime.777Statewatch, Eurosur extended: all participating states now connected to border surveillance system, 04/12/2014, https://www.statewatch.org/news/2014/december/eurosur-extended-all-participating-states-now-connected-to-border-surveillance-system/, retrieved on 29/09/2020 [http://web.archive.org/web/20200929121746/https://www.statewatch.org/news/2014/december/eurosur-extended-all-participating-states-now-connected-to-border-surveillance-system/] Once again, the emphasis was put on border control rather than search and rescue. Further, critics considered EUROSUR’s supposed goal of saving lives has been considered incompatible with the system’s primary purpose of border control.778CARRERA, S., and STEFAN, M., Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union: Complaint Mechanisms and Access to Justice, Routledge, 12/02/2020, in print, 9780367195809 The expansion of both the third country cooperation and EUROSUR outline the Commission’s preparations in 2014 for increased action on preventing «migrants» from reaching European shores. Both elements were later radically expanded and instrumentalized in the policies examined in this Communication.
The Ten Point Action Plan on Migration
In a series of documents, communications, and actions rolled out in 2015, the Commission set the framework for its planned response to the “migratory pressures” and its plans to externalize migration policy.
To this end, on 20 April 2015, High Representative Federica Mogherini and Commissioner Avramopoulos introduced “a ten-point plan of the immediate actions to be taken in response to the crisis situation in the Mediterranean.”779European Commission, Joint Foreign and Home Affairs Council: Ten point action plan on migration, 20/04/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122134/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813] All European Union Foreign and Interior Ministers approved this plan at the meeting.780European Commission, Joint Foreign and Home Affairs Council: Ten point action plan on migration, 20/04/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122134/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813]
The Plan presented immediate actions to be taken in response to the crisis situation in the Mediterranean such as the “[the reinforcement of] the Joint Operation […] Triton, by increasing the financial resources and the number of assets, [as well as] extend[ing] their operational area to intervene further within the mandate of Frontex; systematic efforts to capture and destroy vessels used by the smugglers; [inter-agency cooperation] to gather information on smugglers modus operandi,” and intelligence gathering on “migratory flows.”781European Commission, Joint Foreign and Home Affairs Council: Ten point action plan on migration, 20/04/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122134/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813]
These “direct, substantial measures” were supposed to be accompanied by a “structural” change through the forthcoming European Agenda on Migration.782European Commission, Joint Foreign and Home Affairs Council: Ten point action plan on migration, 20/04/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122134/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813] This first framework already failed to articulate a response aimed at minimizing loss of life and protecting «migrants». Despite the “crisis in the Mediterranean” referring to the horrific shipwrecks and mass deaths of «migrants» along the European shores, the Ten Point Action Plan prioritized strengthening the EU’s capacity to control borders and was not designed to save lives.
The European Agenda on Migration
The second document that emerged was the European Agenda on Migration (‘Agenda’) which was presented by the Commission in May 2015.783European Commission Migration and Home Affairs, New Pact on Migration and Asylum, https://ec.europa.eu/home-affairs/what-we-do/policies/european-agenda-migration_en, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122408/https://ec.europa.eu/home-affairs/what-we-do/policies/european-agenda-migration_en] It was drafted by all the services in DG HOME, as it covered all its areas of competences.784Interviewee I7
The main objective of the European Agenda on Migration was to “better manage migration in the medium and long term in the areas of irregular migration, borders, asylum and legal migration.”785Frontex, MANAGEMENT BOARD DECISION No24/2014of 22 October 2014 adopting the amendment of Frontex’ Programme of Work 2014 (N2) and Frontex’ Budget 2014 (N2), 22/10/2014, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929121554/https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf] This agenda corresponded to President Juncker’s “political guidelines” established in July 2014 and further elaborated four principles: the reduction of “incentives for irregular migration,” “border management – saving lives and securing external borders,” “Europe’s duty to protect: a strong common asylum policy” and finally, “a new policy on legal migration.”786European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf] While it did mention “saving lives,” the focus was placed on border protection and the prevention of exile arrivals in Europe. Measures aimed at realizing the latter simply outweighed the supposed objective of saving lives by far.
These documents were further published within the context of the unfurling rivalry between Juncker, as the President of the Commission, and Tusk, as the President of the European Council. This is starkly illustrated by the Agenda being published at the same time as the Council’s emergency plan. Juncker’s efforts to try and push back the release of the latter as well as his critical stand towards the Council’s work revealed the conflict of prerogative that took place between the two institutions.787LUDLOW, P., “Preliminary Evaluation 2015/3 : Migration Policy,” Eurocomment, Leuven University Press, p. 5.
As detailed in the European Council section, Juncker and his Commission scrambled to put out their migration agenda and ultimately were relegated to a less prominent position by the European Council.[2]
In mid-2015, after the consequences of this policy unfolded in the form of 1,200 deaths in 1 week (the ‘Black Week of April’),788Human Rights Watch, “EU: Mediterannean Deaths Warrant Crisis Response,” 19/04/2015, https://www.hrw.org/news/2015/04/19/eu-mediterranean-deaths-warrant-crisis-response, retrieved on 03/03/2024 [https://web.archive.org/web/20230130020712/https://www.hrw.org/news/2015/04/19/eu-mediterranean-deaths-warrant-crisis-response] the Agenda initially offered to “triple the budget for the Frontex joint-operations Triton and Poseidon” in the context of Europe not being capable of “stand[ing] by whilst lives are being lost.”789European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 3. Between 2015 and 2016, the budget increased from 143 million to 232 million, therefore not reaching the suggested amount but still receiving a substantial increase. Yet Triton and Poseidon drastically reduced the overall capacity to save lives through conducting search and rescue and significantly withdrew from areas in which «migrants» are likely to face distress.790HELLER, C, PEZZANI, L, “Death by rescue,” June 2017, Forensic Architecture Agency, https://content.forensic-architecture.org/wp-content/uploads/2023/04/2016_Report_Death-By-Rescue.pdf, retrieved on 30/06/2024 [https://web.archive.org/web/20240630164414/https://content.forensic-architecture.org/wp-content/uploads/2023/04/2016_Report_Death-By-Rescue.pdf] The Commission announced the provision of an increased number of assets and geographical expansion in the frame of Operation Triton, stating that it wanted to “restore the level of intervention provided under the former Italian ‘Mare Nostrum’ Operation.”791European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 3. Yet again, the statements did not match reality, as Triton never reached previous levels of the Italian Operation, nor integrated proper search and rescue functions. The statement, however, did constitute an admission by the Commission itself that Triton’s operational capacities were insufficient and contributed to the immense scale of devastation that the situation in the Mediterranean had reached.
Whilst pretending to return to a Mare Nostrum-style policy, the agenda identified as its main objectives to “prevent the exploitation of migrants by criminal networks” and reduce incentives to irregular migration,792European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 8. which had also been put forward in the European Agenda on Security.793European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Agenda on Security, 28/04/2015, https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122858/https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf]
Indeed, a month prior, the Agenda on Security had announced that “reinforced action against the smuggling of migrants between the EU and key third countries will be part of the forthcoming European Agenda on Migration.”794European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Agenda on Security, 28/04/2015, https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122858/https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf], p. 18. It was furthermore already advocating for “launching joint actions and cooperation strategies with key third countries to combat smuggling of migrants.”795European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Agenda on Security, 28/04/2015, https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122858/https://www.cepol.europa.eu/sites/default/files/european-agenda-security.pdf], p. 19. The European Agendas on Security and Migration thus both further cemented the basis for a cooperation with third countries in the fight against human trafficking that would transform into the criminal EU policies of capture and refoulement via Libyan proxy.
On 27 May 2015, Timmermans, Mogherini and Avramopoulos presented five different concrete measures, including an EU Action Plan against migrant smuggling (2015-2020)796European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions EU Action Plan Against Migrant Smuggling (2015-2020), 27/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091514/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf] and a new Operational Plan for Operation Triton.797Frontex, Operational Plan (Main Part) EPN CONCEPT Joint Operation EPN Triton 2015, 26/05/2015, https://www.asktheeu.org/fr/request/2787/response/9812/attach/4/PAD%20Triton%202015%20OPLAN%20Main%20part.pdf,retrieved on 30/09/2020 [https://web.archive.org/web/20200930091632/https://www.asktheeu.org/fr/request/2787/response/9812/attach/4/PAD%20Triton%202015%20OPLAN%20Main%20part.pdf]
The Action Plan introduced different measures including providing capacity building to third countries. Specifically, it stated that “the Commission and the EEAS will enhance financial and technical assistance to third countries, to support the development of national and regional strategies against migrant smuggling […] as well as the setting up of integrated border management systems. This should include risk analysis, joint border control and border patrolling.”798European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions EU Action Plan Against Migrant Smuggling (2015-2020), 27/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091514/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf], p, 9.
The new Operational Plan for Joint Operation Triton also contributed to the implementation of the Agenda on Migration. It thus increased Triton’s means to “10 maritime, 33 land and 8 air assets, and 121 human resources.”799European Commission, European Commission makes progress on Agenda on Migration, 27/05/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_5039, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091741/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_5039] It further extended the geographical area of Triton southward to “the Maltese search and rescue zone to cover the area of the former Italian Mare Nostrum operation.”800European Commission, European Commission makes progress on Agenda on Migration, 27/05/2015, https://ec.europa.eu/commission/presscorner/detail/en/IP_15_5039, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091741/https://ec.europa.eu/commission/presscorner/detail/en/IP_15_5039] However, taking into account the extended operation area, Frontex was still six to ten hours away from where most shipwrecks take place, thus still feeding into the EU’s strategy of deterring migrants by rendering migration routes increasing lethal.
[1] see chapter IV.B.vi on EUROSOR in Frontex report
[2] see Section I.C.iii
IIBorder Externalization
The long-term strategy towards the externalization of the EU’s borders, and, ultimately, the orchestration of pushbacks by proxy through the Libyan coastguard would find its culmination in the implementation and evolution of Operation Sophia. The following lays out the involvement of the Commission in how Operation Sophia unfolded alongside Operation Triton as well as the auxiliary projects and events aiding in operationalizing the Libyan coastguard to conduct interceptions of migrants at sea.
(a) Advance planning for Operation Sophia
In October 2014, the EEAS had communicated “The Political Framework for a Crisis Approach (PFCA) to Libya” to the delegations.801Council of the European Union, Libya, a Political Framework for a Crisis Approach, 01/10/2014, https://www.statewatch.org/media/documents/news/2014/oct/eu-eeas-libya-framework-13829-14.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001111503/https://www.statewatch.org/media/documents/news/2014/oct/eu-eeas-libya-framework-13829-14.pdf] It was “drafted largely by the EEAS with key contributions by both the desk responsible for Libya specifically and by the department responsible for crisis response in general,” DG DEVCO and the “Service for Foreign Policy Instruments.”802IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 21. It outlined past EU action in Libya and future “threats and… strategic objectives for handling the crisis.” As such, it laid out the “theoretical blueprint” for the EU’s Libya strategy since then803IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 21. Growing irregular migration flows were described as one of the core concerns for the EU.804IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 22. The PFCA did not include countering “smuggling” in its policy objectives. This was introduced half a year later, when the Political and Security Committee requested a proposal for “possible EU activity against smugglers of migrants across the Mediterranean, including expected challenges and drawing on lessons learned from EU NAVFOR ATALANTA” from the EEAS and the Commission in the wake of the Lampedusa shipwreck on 19 April 2015.805IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], pp. 21-22.
A few days later, the Council of the EU convened an extraordinary meeting in which it declared its intentions to “disrupt trafficking networks, bring perpetrators to justice and seize their assets…and to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers.”806European Council, Special meeting of the European Council, 23 April 2015 – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110605/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] Included in these efforts was an increase of Triton’s “operational capability” and funding, as well as the prompting of Mogherini to “[prepare] a possible CSDP operation.”807European Council, Special meeting of the European Council, 23 April 2015 – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110605/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] Thus, in response to the horrific drowning of hundreds of “migrants” in the Mediterranean, the Council decided to reinforce Triton, as well as launching efforts to explore further border control operations. They also called for the destruction of vessels used by “migrants”.
This project was further cemented in the aforementioned Agenda on Migration on 13 May 2015 in which the Commission more concretely referred to the possibility of a Common Security and Defence Policy (CSDP) operation to target smugglers. 808European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 6.
The CSDP operation EUNAVFOR MED (later renamed Sophia) was subsequently introduced by the Foreign Affairs Council on 18 May 2015, following instructions by the European Council in April 2015,809Council of the European Union, Outcome of the Council Meeting 3389th Council meeting Foreign Affairs, 18/05/2015, https://www.consilium.europa.eu/media/23345/st08966en15.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110839/https://www.consilium.europa.eu/media/23345 and was then primarily tasked with combatting the smuggling of people in the Mediterranean.810European Council, Timeline - response to migratory pressures, 28/04/2020, https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001111019/https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/] The operation sustained itself through voluntary Member States’ “military contributions” and a “joint budget…shared by EU members.”811RIDDERVOLD, M., “A humanitarian mission in line with human rights? Assessing Sophia, the EU’s naval response to the migration crisis,” European Security, 30/03/2018, https://www.tandfonline.com/doi/full/10.1080/09662839.2018.1451842
Shortly after, on 27 May 2015, Timmermans, Mogherini and Avramopoulos presented the EU Action Plan against migrant smuggling (2015-2020).812European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions EU Action Plan Against Migrant Smuggling (2015-2020), 27/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091514/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf] This Action Plan reaffirmed “the work to establish a Common Security and Defence Policy (CSDP) operation to systematically identify, capture and dispose of vessels used by smugglers.”813European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions EU Action Plan Against Migrant Smuggling (2015-2020), 27/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091514/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/general/docs/eu_action_plan_against_migrant_smuggling_en.pdf]
The “Communication on Addressing the external dimension of the refugee crisis,” drafted by DG DEVCO and presented by the Commission in September 2015, outlined the EU external action addressing the refugee crisis and described the CSDP operation EUNAVFOR MED as “a crisis management operation […] provid[ing] surveillance, intelligence gathering and potential operational engagement against smuggling activity in the Southern Central Mediterranean in full respect of international law.”814European Commission, Joint Communication to the European Parliament and the Council Addressing the Refugee Crisis in Europe: the Role of EU External Action, 09/09/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015JC0040&from=EN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930091913/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A52015JC0040&from=EN], pp. 10-11.
After the initial Libya-oriented EEAS project’s adaptation to fit the CSDP mission, “the [Crisis Management Concept] pointed out some major hurdles in the Council’s orientation to ‘identify, capture and destroy vessels before they are used by traffickers.’”815IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 30. It voiced concerns about “‘the risk [of] turning a CSDP mission into another Mare Nostrum’,”816IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 30. i.e. turning it into an operation dedicated mainly to saving lives. The focus was therefore placed on “neutralis[ing] the traffickers’ vessels before they were launched from the Libyan shores.”817IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 30. This posed complications, as the necessary measures to do so would only be authorized under “a clear UNSC mandate."818IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 30. The Crisis Management Concept accordingly suggested that EUNAVFOR MED would have to be complemented by other actions.819IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 30.
During these developments in September 2015, the Commission introduced the “EU Emergency Trust Fund for Africa for stability and addressing root causes of irregular migration,” to be proposed at the upcoming Valletta Summit.820European Commission, Refugee Crisis: European Commission takes decisive action, 09/09/2015, https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_15_5596/IP_15_5596_EN.pdf, retrieved on 30/06/2024 [https://web.archive.org/web/20240630165818/https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_15_5596/IP_15_5596_EN.pdf] 1.8 billion euros were allocated for this endeavor.
(b)Training of the LYCG
On 7 October 2015, the Political and Security Committee authorized the second phase of Operation Sophia which was now enabled 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 bringing suspected smugglers to justice.”821European Commission, Communication from the Commission to the European Parliament, the European Council and the Council Managing the refugee crisis: State of Play of the Implementation of the Priority Actions under the European Agena on Migration, 14/10/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1498557230171&uri=CELEX:52015DC0510, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092237/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1498557230171&uri=CELEX%3A52015DC0510] In the same month, it was revealed that Mogherini “ha[d] been engaged in extensive diplomatic contacts with a view to finding an agreement to the crisis in Libya.”822European Commission, Communication from the Commission to the European Parliament, the European Council and the Council Managing the refugee crisis: State of Play of the Implementation of the Priority Actions under the European Agena on Migration, 14/10/2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1498557230171&uri=CELEX:52015DC0510, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092237/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1498557230171&uri=CELEX%3A52015DC0510]
In the Six-Month Operation Sophia Report from 22 June 2015 to 31 December 2015, sent to the Political and Security Committee and the EU Military Committee, the EEAS wrote that:
“Firstly there has been a reduction in the proportion of migrants using the central Mediterranean route as opposed to the eastern route. Prior to the start of the operation there was an even split between the people using the central route and the eastern route, whereas now 16% migrants use the central route, with almost 83% of migrants using the eastern route. Secondly, since September, for the first time in 3 years, we have seen a 9% reduction in the migrant flow using the central route. This is an encouraging decrease in the flow and should continue to be driven down through EUNAVFOR MED’s continued efforts.”823Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001112105/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf]
This ‘positive’ assessment was echoed in April 2016 by Mogherini who called the mission “one of the stories of the European Union we can be proud of […] this is an important sign of the European unity we should be proud of again: saving lives.’”824EUNAVFOR MED Operation Sophia, HR/VP visits EUNAVFOR MED Operation Sophia Flagship, 15/04/2016, https://www.operationsophia.eu/hr-vp-visits-eunavfor-med-operation-sophia-flagship, retrieved on 01/10/2020 [https://web.archive.org/web/20201001112156/https://www.operationsophia.eu/hr-vp-visits-eunavfor-med-operation-sophia-flagship/] What Mogherini described here as “saving lives” was in reality a deterrence based on rendering the Central Mediterranean increasingly lethal for migrants attempting to cross.
In December 2015, the Commission adopted a set of measures to “address” migration named “Border Package”, presented by DG HOME, which included a proposal for a European Border and Coastguard.825European Union, Official directory of the European Union 2015, 03/07/2015, https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search, retrieved 24/09/2020 [https://web.archive.org/web/20200924145147/https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search], p. 19. This proposal reinforced Frontex’ mandate and “provid[ed] it with the necessary legal framework and resources to mobilize efforts more quickly and adequately.”826European Union, Official directory of the European Union 2015, 03/07/2015, https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search, retrieved 24/09/2020 [https://web.archive.org/web/20200924145147/https://op.europa.eu/en/publication-detail/-/publication/d1035cf9-2b7c-4a9d-9cdf-3605b8edd0f5/language-en/format-PDF/source-search], p. 19.
DG Home, Frontex, and Member State experts also developed a “Practical Handbook for implementing and managing the European Border Surveillance System.”827European Commission, Annex to the Commission Recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/12/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092436/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] This handbook for EUROSUR contained a section on “cooperation of Member States with neighbouring third countries” which specifically centered around the “preven[tion of] illegal immigration.”828European Commission, Annex to the Commission Recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/12/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092436/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf], p. 52. It further outlined possible cooperation activities, including “exchange of information…, joint risk analysis and investigation activities with authorities in third countries…, training for third-country authorities in border control activities, search and rescue, fundamental rights, etc…, strengthening third countries’ capacities through programmes co-financed by EU and international funds.”829European Commission, Annex to the Commission Recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/12/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092436/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf], pp. 52-53.
Moving further, bilateral cooperation could entail “regional networks, used for exchanging information via secure communication channels, exchanging liaison officers, training, strengthening surveillance capabilities and setting up coordination centres in third countries…; joint operational activities (land, sea, air), including joint patrolling…, training for third-country authorities in border control, search and rescue, fundamental rights, etc…, strengthening capacities through donating assets and technical assistance to improve the border control capabilities of third countries.”830European Commission, Annex to the Commission Recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/12/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092436/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf], p. 53. The handbook specified that such cooperation would be carried out in the context of “agreements and working arrangements” which the Commission had to approve.831European Commission, Annex to the Commission Recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/12/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092436/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf], p. 53.
All of these proposals elaborated by DG HOME can be seen as a contribution towards the increasing securitization of migration and border externalization and the preparation of a sophisticated system to orchestrate the interception of migrants by Libyan proxy.
In February 2016, the “Communication on a State of Play on the Implementation of the Priority Actions under the European Agenda on Migration,” indicated that the implementation of the objectives of the European Agenda on Migration was too slow, and “political responsibilities need[ed] to be assumed at highest level in all Member States to ensure that the agreed coordinated European response [could] address the refugee crisis swiftly and efficiently.”832European Commission, Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10/02/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX:52016DC0085, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092633/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX%3A52016DC0085] In regards to Libya, the communication explained that the EU was supporting the UN to put “an end to the political and security crisis."833European Commission, Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10/02/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX:52016DC0085, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092633/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX%3A52016DC0085] A Libyan Political Agreement had been signed in December 2015 in which the EU was able to make available a “support package” of 100 million euros to help the Government of National Accord.834European Commission, Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10/02/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX:52016DC0085, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092633/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485253558318&uri=CELEX%3A52016DC0085]
Even if Sophia’s mandate was initially to capture and destroy smugglers’ vessels, it quickly turned towards a policy of externalization – oriented towards preventing migrants from departing Libya, notwithstanding the known abuses that they faced in this country.
As early as 4 April 2016, two months before the extension of Operation Sophia’s mandate, the European Commission considered the training and capacity building of the LYCG. At the first ShadeMed conference,[1] in the Smugglers’ business model working group, Alberto Volpato from DG HOME “enquired about what kind of resources the Libyan coastguard would require to become a threat to smuggling.”835EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p.4. This came right after multiple interventions explaining the link between the LYCG and smugglers and the dire situation faced by “migrants” in Libyan detention centers. EUNAVFOR MED officers answered that “this is a complex issue, but once an official coastguard is formed they will probably need both capacity building and training.”836EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p.4. This idea of providing resources directly to the LYCG was included in the conclusions of the working group, which recommended to “Evaluate which resources the Libyan coastguard would require to effectively counter the smugglers.”837EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p.4. It is to be noted that capacity-building and training of the LYCG was not included in Sophia’s initial mandate, and neither in its subsequent phases.[39]
In another working group that took place on the same day, Volpato “enquired about the possibility to come up with an agreement like the one signed between the EU and Turkey once the GNA government is in power.”838EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p.5. Once again Volpato was met with strong concerns about the conditions in Libya, with the IOM representative following immediately by saying that “Libya according to international law is not country in which migrants can be returned against their will. Since it is not a safe place” which was “agreed upon by almost all attendees.”839EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 5. Despite this, the conclusion and way ahead maintained the idea to find solutions “to avoid departure of illegal migration from Libya,840EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 5. at the initiative of the EUNAVFOR MED officer holding the secretariat.
It is unclear in what sequence these working groups took place, but it is made abundantly clear that despite being repeatedly told that Libya was not a safe place for disembarkation and that such forcible measures would breach international law, DG HOME representative Volpato was determined to figure out how to operationalize Libya to aid the EU in stopping migrant crossings.
The next day, Volpato alleged that such an agreement was impossible, and that steps to implement “places of safety” in Libya had not been taken “for obvious reasons”841EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 7. – a statement that was made two months before the agreement to train the LYCG was concluded. It was nonetheless included in the conclusion that “interaction with Libyan local authorities, if and when it will be possible, can be pivotal to countering the smuggling of human lives as well as addressing migration phenomena."842EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 7.
After the repeated statements from Volpato and other participants about the dire conditions in Libya for migrants and the consistent contradictory conclusions to the contrary in the form of affirming the envisioning of building up the LYCG’s capacities to stop migration, Volpato nonetheless asserted that “the next phases of the Operation in the light of the EU Comprehensive approach [would] also aim to increase the capacities of Libyan Authorities to provide autonomous responses afloat and ashore in order to jointly tackle common challenges.”843EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024, p. 4 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 16.
Overall, this European Commission representative seemed to push forward a very precise agenda, pushing for externalization and capacity-building of the LYCG despite being conscious of the dire situation faced by “migrants” in Libya. His repeated contradictory statements and inquiries demonstrate extensive awareness of the illegality of operationalizing the LYCG to intercept and pushback migrants to Libya.
In the same month, the Commission issued a Communication called “Stronger and Smarter Information Systems for Borders and Security” which identified the flaws of the European information system for borders and security and stated that it was “necessary and urgent to work towards integrated solutions for improved accessibility to data for border management and security.”844European Commission, Communication from the Commission to the European Parliament and the Council Stronger and Smarter Information Systems for Borders and Security, 06/04/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485252785830&uri=CELEX:52016DC0205, retrieved on 30/09/2020 [https://web.archive.org/web/20200930092810/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485252785830&uri=CELEX%3A52016DC0205] Following prior developments, the Commission appears to always have included the building of a sophisticated surveillance and information-sharing system in their plans to work towards deploying the Libyan authorities, in their efforts to stop migrants at all costs.
In May 2016, it seemed that the idea of a “Libyan Coast Guard capacity building program” was acknowledged as a valid potential policy. US Navy representative William Shafley even proposed “to place ‘western’ officers on Libyan Coast Guard boats/vessel in order to be assured of how they operate” during a ShadeMed conference,845EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 8. demonstrating that he had no difficulty to envision a direct collaboration with the LYCG. This evolution evoked warnings from NGOs about the unlawfulness of these policies. In the SAR working group the following was discussed:
“emphasizing the widespread and systematic human rights violations suffered by migrants and asylum-seekers in Libya, an Amnesty International representative stated that any capacity-building and training of the Libyan Coast Guard should never result in the return to and disembarkation in Libya of people rescued at sea,”846EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 10. – which was obviously what was intended, and happened, as a consequence of the capacity-building and training of the LYCG. In the legal working group, they specified that “training on human rights would not be sufficient to tackle this gap,”847EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 22. delegitimizing the EU governments and institutions’ strategy that would promote the human rights dimension of the training provided to the LYCG to render it acceptable.
At the same time, the discussions inside the Commission began to focus on rubber boats, as the means provided to “migrants” by smugglers for their crossing of the Mediterranean. An officer from the EUNAVFOR MED legal team stated that “the goal would be to disrupt the delivery of such rubber boats to Libya.”848EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p.16. This policy aimed at preventing “migrants” from departing from Libya. The perverse effects of such a policy were discussed in one of the ShadeMed working groups dedicated to “effects on countering smugglers’ business model.”849EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 17. It considered “the real effects on preventing migrants from Libya through either an effective Libyan Coast Guard operation or EU action to stem the supply of rubber boats.”850EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 17. The participants – from EUNAVFORMED: BETTINOTTI Alberto, COSTAGLIOLA Rosario, EBERT René, HUTCHINSON Oliver, MIZZI Josif, WALLINMAA Sakari. From EEAS/EUMS: GONELLA Roberto – noted that if “the Libyan Coast Guard were to be fully effective in preventing migrants from leaving Libya,” it “would return migrants to Libya, which might put them in further danger given the security situation in the country. There was concern that this would in effect breach the principle of non-refoulement.”851EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 19. The efforts to close the Central Mediterranean route by preventing «migrants» from departing from Libya, in general, means that “a large number of migrants would become trapped in Libya, with potentially very serious humanitarian consequences.”852EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 19. It was nonetheless in this direction that all the efforts of the European Commission and EUNAVFOR MED officers would tend, by “assisting […] Libya.”853EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 4.
Despite these numerous interventions by external actors strongly emphasizing that efforts to forcibly keep migrants from leaving or return them to Libya through a Libyan proxy would violate the principle of non-refoulement, the Council of the European Union authorized Operation Sophia’s extension and expanded its mandate to include the “contributing to information sharing, as well as implementation of the UN arms embargo on the high seas off the coast of Libya,” and the “training […] the Libyan Coast Guard and Navy” to combat trafficking in late June 2016.854Council of the European Union, Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), 21/02/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D0993, retrieved on 01/10/2020 [https://web.archive.org/web/20201001112416/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D0993] Earlier that month, the Commission had published a communication in which it described the situation in Libya as casting “obvious doubts about [the] basic protection [of «migrants»] and respect of their rights.”855European Commission, Communication from the Commission on establishing a new Partnership Framework with third countries under the European Agenda on Migration, 07/06/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485249084378&uri=CELEX:52016DC0385, retrieved on 01/10/2020 [https://web.archive.org/web/20201001112626/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485249084378&uri=CELEX%3A52016DC0385] The communication further outlined issues with food and healthcare access and moreover mentioned the possibility of a Frontex cooperation with Libya.856European Commission, Communication from the Commission on establishing a new Partnership Framework with third countries under the European Agenda on Migration, 07/06/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485249084378&uri=CELEX:52016DC0385, retrieved on 01/10/2020 [https://web.archive.org/web/20201001112626/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1485249084378&uri=CELEX%3A52016DC0385]
In the same month, the new “Migration Partnership Framework” with third countries completed the process initiated by the European Agenda on Migration and “fully integrat[ed] migration in the EU’s foreign policy.”857CASTILLEJO, C., “The EU Migration Partnership Framework Time for a Rethink?,” Deutsches Institut für Entwicklungspolitik and German Development Institute, 2017, https://www.die-gdi.de/uploads/media/DP_28.2017.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093008/https://www.die-gdi.de/uploads/media/DP_28.2017.pdf], p. 5. This document was part of the EU’s strategy to externalize migration control by providing financial and political support conditional on third countries’ effective implementation of exit controls.858BAULOZ, C., “The EU Migration Partnership Framework: an External Solution to the Crisis?,” 31/01/2017, http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/, retrieved on 30/09/2020 [https://web.archive.org/web/20210323071625/http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/] All its goals would be realized through “the establishment of ‘compacts’ with third countries [which] are political packages which encompass clear targets and joint commitments.”859BAULOZ, C., “The EU Migration Partnership Framework: an External Solution to the Crisis?,” 31/01/2017, http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/, retrieved on 30/09/2020 [https://web.archive.org/web/20210323071625/http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/]
In this regard, dialogues and negotiations with Mali, Nigeria, Niger, Senegal and Ethiopia were initiated.860BAULOZ, C., “The EU Migration Partnership Framework: an External Solution to the Crisis?,” 31/01/2017, http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/, retrieved on 30/09/2020 [https://web.archive.org/web/20210323071625/http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/] Due to its external dimension, it can be assumed that this instrument was elaborated by the members of the Commissioners’ Group on External Action and their services. Following up on its earlier proposal for the European Border and coastguard, the new Frontex regulation entered into force on 6 October 2016. 861European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en], p. 19. The proposal was drafted most likely within DG HOME and “strengthened [the agency’s] capacity to carry out rapid border interventions… in the case of sudden, disproportionate migratory pressure at the external borders.”862European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en], p. 9.
DG HOME further mentions that Frontex “deployed on average over 600 officers each day in the Central Mediterranean, while 15 vessels, four aircraft and two helicopters were permanently deployed in the Triton joint operation throughout 2016.”863European Commission, 2016 Annual Activity Report DG Migration and Home Affairs, 15/06/2017, https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en, retrieved on 27/06/2024 [https://web.archive.org/web/20240627135706/https://commission.europa.eu/publications/annual-activity-report-2016-migration-and-home-affairs_en], p. 29. DG HOME contributed 75.8 million EUR to the emergency assistance which supported Triton and Poseidon operations in the Mediterranean.
This further delineates the extensively planned character of the externalization strategy in which the training of the Libyan coastguard was always accompanied by auxiliary projects to strengthen other EU actors’ supporting roles in this endeavor, including expanding surveillance networks and enhancing Frontex’ capacities to achieve total operational control over the Central Mediterranean route.
A few months later, in September 2016, “the Political and Security Committee authorized the commencement of capacity building, and training of the Libyan coastguard started soon thereafter.”864IVASHCHENKO-STADNIK, K., et. al., “How the EU is facing crises in its neighbourhood Evidence from Libya and Ukraine,” EUNPACK, 31/03/2017, https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2, retrieved 01/10/2020, [https://web.archive.org/web/20201001110417/https://nupi.brage.unit.no/nupi-xmlui/bitstream/handle/11250/2599528/The+EU+facing+crises+in+its+neighbourhood+evidence+from+Libya+and+Ukraine.pdf?sequence=2], p. 32.
In November 2016, the first ShadeMed conference after the extension of Sophia’s mandate took place. Captain Bernd Kuhbier from Operation Sophia openly highlighted in his opening speech “the importance of supporting tasks namely Capacity Building and training of the Libyan Coast Guard and Navy,” and a ninth working group dedicated among others to “Capacity Building and Training Activities in Libya” was created.
In January 2017, the Commission published a joint communication titled “Migration on the Central Mediterranean route: Managing flows, saving lives.”865European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] Apart from the High Representative Mogherini, it is highly likely that Commissioner Mimica, and Commissioner Hahn’s teams co-wrote this communication.866BLOCKMANS, S., and RUSSACK, S., “The Commissioners’ Group on External Action–Key political facilitator,” Center for European Policy Studies, December 2015, http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924131803/http://aei.pitt.edu/70407/1/SR125_SB_and_SR_Commissioners_Group_on_External_Action.pdf], pp. 11-12. In this case, the communication foresaw mobilizing 200 million euros “for the North Africa window of the EUTF in 2017. Priority will be given to migration-related projects concerning Libya.”867European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] The Commission thus clearly placed the emphasis on continuing support for the training of the Libyan coastguard and the provision of additional patrolling assets.868European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] One of the priorities was to “improve the conditions of migrants and refugees in the countries of transit in North Africa.”869European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] In its annual report DG HOME also reported that it “contributed to … the Malta Declaration” which was published on February 3rd, 2017.870European Commission, 2017 Annual Activity Report DG Migration and Home Affairs, 30/04/2018, https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924145953/https://ec.europa.eu/info/sites/info/files/file_import/home_aar_2017_final.pdf] The Malta Declaration is a press release issued by leaders of the Member States putting forward a plan to stem the “migrant crisis”.871European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093845/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/]
As a result, the Commission appears to have played, in early 2017, a pivotal role in the cooperation with Libyan authorities through the preliminary formalization of this criminal policy. The publication of “Managing flows, saving lives” explicitly laid the foundations of the EU’s strategy implemented in Libya and would be followed a month later by the signing of the Memorandum of Understanding between Italy and Libya, allowing the EU to provide technical and technological support to the LYCG.
The continued cooperation with Libyan authorities must be placed in the context detailed in the first Communication:
“A week before Italy concluded its 3rd MOU with the GNA, Libya was still considered by various EU bodies as a failed state. On January 25, 2017, the EUBAM Libya delegation reported to the EEAS that ‘Due to the absence of a functioning national Government, genuine and legitimate state structures are difficult to identify, in particular given the dynamic and ever changing landscape of loyalties.’
Yet, at the very same day of 25 January 2017, when the EUBAM reported to the EEAS on the lack of competent government in Libya, a joint EU Commission and High Representative for Foreign Affairs document was published stating (‘EU joint document’): ‘... part of the answer must lie in the Libyan authorities preventing smugglers from operating, and for the Libyan Coast Guard to have the capacity to better manage maritime border and ensure safe disembarkation on the Libyan coast. Of course, the Libyan authorities' effort must be supported by the EU and Member States notably through training, providing advice, capacity building and other means of support. ... Sophia and Triton could focus on anti-smuggling activities and support to search and rescue operations further out at sea and specialize in monitoring, alerting the Libyan authorities and combating traffickers. Recognizing the central role that the Libyan Coast Guard should play in managing the situation, building its capacity is a priority, both in terms of capabilities and equipment needs.’”872Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the Internationql Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], p. 69.
This was further demonstrated by Mariane Riddervold who conducted interviews with EEAS staff and military personnel taking part in Sophia missions and confirmed that “the EU itself indeed knows that there are severe human rights challenges linked not only to Sophia but also the EU’s wider policies vis-à-vis Libya …”873RIDDERVOLD, M., “A humanitarian mission in line with human rights? Assessing Sophia, the EU’s naval response to the migration crisis,” European Security, 30/03/2018, https://www.tandfonline.com/doi/full/10.1080/09662839.2018.1451842, p. 170.
A high-level advisor to the High Representative [even] confirmed that the EU was well aware of the way in which Sophia is in breach of a number of human rights principles and regulations.874RIDDERVOLD, M., “A humanitarian mission in line with human rights? Assessing Sophia, the EU’s naval response to the migration crisis,” European Security, 30/03/2018, https://www.tandfonline.com/doi/full/10.1080/09662839.2018.1451842, p. 170. Another source further stated that “there was no difference ‘between returning someone to an unsafe country or paying someone else to return them.’875HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] Italy’s Deputy Foreign Minister at the time has recently admitted that “Italian and European willingness to deal directly with militia members and smugglers was ‘a mistake, full stop.’”876HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal]
The EEAS has denied physical involvement in or presence at the operations of the Libyan coastguards, stating that “our personnel are not embedded onboard of Libyan coastguard assets and [EUNAVFOR MED] personnel are not part of the Libyan coastguard and navy’s decision-making process…nor is EUNAVFOR Med entitled to exercise any control and authority over Libyan coastguard and navy’s units or personnel.”877HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] However, EEAS supervision of the training on site was proposed at least once at the ShadeMed conferences. They further claimed the EU was not “exercis[ing] any coordination of Libyan vessels during rescue operations.”878HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] This is contradicted by the LYCG itself 879HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] and reports of EU personnel directing the LYCG to “rescue” “migrants” in distress.880HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal]
The description of the training procedures for the LYCG is worthy of note. Sophia officers explained in June 2017 that it is “essentially the LNCG who identif[ies] the training requirement through a designated body of Senior Officers (the Libyan Committee of Experts – LCoE) and then ENFM organizes the training delivery through EU Member States.”881EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 5.This procedure blatantly deprived Sophia officers from controlling the training of the LYCG and from pushing for crucial priorities, such as human rights, as had been promised. Nonetheless, “this procedure was deemed as both appropriate and effective.”882EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 5. This does not mean that Sophia officers were not physically involved or present at the training of the LYCG. Indeed, they explained that “the training is continuously monitored by the OHQ training team and the LCoE through their representatives on the training facilities (Liaison Officers and Tutors) and through periodic meetings.”883EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], pp. 5-6. Sophia officials were perfectly aware of how the training was conducted on the ground, through representatives physically present at the training facilities. Moreover, this training was both conducted and paid for by EU Member States and the EEAS, holding them directly accountable for it, notwithstanding the EEAS’ denial of involvement.
During that time, the Commission also issued an “Action plan on measures to support Italy” which concentrated on five areas: ‘saving’ lives, fighting smuggling and trafficking in Libya, increasing engagement with key non-EU countries and stepping up operations, and finally building stronger solidarity within the EU.884European Commission, Action plan on measures to support Italy, reduce pressure along the Central Mediteranian route and increase solidarity, 04/07/2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093958/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf] The plan further fostered the setting up of a Libyan MRCC, as well as encouraging the EUTF to adopt “the project on sea and land border management in Libya prepared by Italy jointly with the Commission, for an amount of 46 million euros.”885European Commission, Action plan on measures to support Italy, reduce pressure along the Central Mediteranian route and increase solidarity, 04/07/2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093958/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf]
In the November 2017 ShadeMed conference, more detail was given on the training of the LYCG. “SMART Training for LCGN was conducted in August 2017 [in Rome, with 3 Libyan personnel trained] as part of Training Package 2, with plans underway for a future course.”886EUNAVFOR MED, SHARED AWARENESS AND DECONFLICTION IN THE MEDITERRANEAN, 02/2017, https://www.eeas.europa.eu/sites/default/files/working_groups_outcomes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703084636/https://www.eeas.europa.eu/sites/default/files/working_groups_outcomes.pdf], p. 2. A “training package in Italy, with 59 Libyans trained on Sub-module A and 6 Libyans trained on Sub-module D” was also referenced.887EUNAVFOR MED, SHARED AWARENESS AND DECONFLICTION IN THE MEDITERRANEAN, 02/2017, https://www.eeas.europa.eu/sites/default/files/working_groups_outcomes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703084636/https://www.eeas.europa.eu/sites/default/files/working_groups_outcomes.pdf], p. 2.
The legitimacy of this capacity-building effort was reiterated at the January 2019 ShadeMed conference. The working group dedicated to “Capacity-building of the Libyan Coast Guard & Navy” is described in the agenda as bound to “examine the way national and multilateral initiatives inform and support the capacity-building process” and to “explore new offers of training modules and participation in the training modules of international organizations,”888EUNAVFOR MED, Shared Awareness and de-confliction in the Mediterranean 1-2019 - Agenda„ 23-24/01/2019 [Annex 14] demonstrating a complete normalization of their training of the LYCG.
As of March 2018, Operation Sophia had trained 201 members of the Libyan coastguards.889European Commission, Communication from the Commission to the European Parliament, the European Council and the Council Progress report on the Implementation of the European Agenda on Migration, 14/03/2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113358/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf], p. 12.
(c) Setting up the MRCC Libya and the establishment of a Libyan SAR zone
Libyan authorities initially did not have a functional Maritime Rescue Coordination Center, and hence no declared SAR zone. The Italian Coast Guard at the time asserted that “there is no […] effective rescue coordination authority in Libya,” which led the MRCC Rome to coordinate most SAR events in the Central Mediterranean.890EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 7.
The ICC was directly discussed in conversations on “the legal finish to prosecute suspected smugglers or traffickers apprehended at sea in Libyan territorial waters.”891EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 15. Notwithstanding the view was that ICC crimes are being committed against ‘migrants’ in Libya, inter alia the Crime Against Humanity of enslavement, the concern was that “the involvement of [the] ICC would not help the Libyan government to gain legitimacy and solve the problem by itself”892EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 15. – favoring the fictitious facade of a functioning Libyan legal system over the prosecution of atrocity crimes.
Whilst “the initial idea was to assess the possibility to involve the International Criminal Court (ICC) in view to prosecution,”893EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 16. because “the ICC, under its Statute, can exercise jurisdiction only for crimes against humanity and in case a State is not able (or not willing to) exercise its own jurisdiction.”894EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 16. Thus, “the WG concluded that the involvement of the ICC is an interesting option but that may not be considered as a relevant solution to help for the development of the Libyan government legitimacy.”895EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 16.
The Commission first referred to the establishment of a Libyan Maritime Rescue Coordination Center in the previously mentioned communication “Migration on the Central Mediterranean route: Managing flows, saving lives,” published in January 2017.896European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] It regarded this as a key priority to enable Libya to declare their own search and rescue area supposedly in compliance with international law, and, crucially, to connect it to the Seahorse Mediterranean Network.897European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] The latter was supposed to enable “exchange of information on incidents and coordinate patrolling and rescue activities with the coast guards of neighboring countries.”898European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] In this document, the Commission reported the EU was already funding Italy’s efforts to realize this objective.899European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN]
DG Home and the EEAS instructed the Italian coastguard “to assist the Libyan coastguard to fulfill its SAR duties, by setting up a Maritime Rescue Coordination Centre in Libya” a few months later.900LOSCHI, C., RAINERI, L., and STRAZZARI, F., “The implementation of EU Crisis Response in Libya: Bridging theory and practice,” Brussels, EUNPACK, 01/2018, http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110107/http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf], p 20. This point was reinforced in June by the “Action plan to support Italy and stem migration flows” published shortly after by the Commission. The action plan prioritized the “establishing [of a] Maritime Rescue Coordination Centre in Libya.”901LOSCHI, C., RAINERI, L., and STRAZZARI, F., “The implementation of EU Crisis Response in Libya: Bridging theory and practice,” Brussels, EUNPACK, 01/2018, http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110107/http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf], p 20. Later that year in August, the Libyan coastguard “declared its own SAR area of competence [accompanied by] an injunction to stay away from the Libyan SAR zone, a measure implicitly directed to humanitarian NGOs operating in the area” which was adhered to by Italy.902LOSCHI, C., RAINERI, L., and STRAZZARI, F., “The implementation of EU Crisis Response in Libya: Bridging theory and practice,” Brussels, EUNPACK, 01/2018, http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110107/http://www.eunpack.eu/sites/default/files/publications/2018-01-31%20D6.2%20Working%20paper%20on%20implementation%20of%20EU%20crisis%20response%20in%20Libya.pdf], p 20.
The minutes of the ShadeMed working group on migration in June 2018, whose secretariat was entrusted to Sophia officers, explicitly evoke the “difficulties faced by the Libyan Coastguards in conducting SAR activities.”903EUNAVFOR MED, Working Group Minutes, 19/06/2018, https://www.operationsophia.eu/wp-content/uploads/2018/10/Working_Group_Minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703100110/https://www.operationsophia.eu/wp-content/uploads/2018/10/Working_Group_Minutes.pdf], p. 1. Legal issues were not thoroughly tackled before the establishment of the Libyan SAR zone: almost a year after its establishment, the necessity to “provide clarity on the policies for processing migrants disembarked in Libya” was still emphasized.904EUNAVFOR MED, Working Group Minutes, 19/06/2018, https://www.operationsophia.eu/wp-content/uploads/2018/10/Working_Group_Minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703100110/https://www.operationsophia.eu/wp-content/uploads/2018/10/Working_Group_Minutes.pdf], p. 1.
Extensive discussions on potential issues in regard to entry into Libyan territorial waters had already taken place in the lead-up to the establishment of the Libyan SAR zone. A Sophia officer underlined in May 2016 “how fundamental an invitation from [the] Government of National Accord (GNA) [was] in order to enter Libyan territorial waters (TTW),”905EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 2. to destroy smugglers’ assets directly on Libyan shores. It therefore came as no surprise to anyone that the creation of a Libyan SAR zone prohibited other actors, including EUNAVFOR MED assets, to enter the zone. As of 2022, however, the planned Libyan MRCC was still not operational.906European Commission, Answer given by High Representative/Vice-President Borrel i Fontelles on behalf of the European Commission, 08/011/2022, https://www.europarl.europa.eu/doceo/document/E-9-2022-003014-ASW_EN.html, retrieved on 08/08/2024 [https://web.archive.org/web/20221108134953/https://www.europarl.europa.eu/doceo/document/E-9-2022-003014-ASW_EN.html]
(c) ShadeMed Conferences
The ShadeMed conferences were organized from November 2015 onwards under the impetus of EUNAVFOR MED officials. They aimed at “provid[ing] a mechanism aimed at de-conflicting and where possible coordinating military and civilian sources, military and civilian operations and industry practices to achieve the maximum efficiency and effectiveness in managing MSO [Maritime Security Operations] related to the migratory phenomenon in the Mediterranean.”907EUNAVFOR MED, SHARED AWARENESS AND DECONFLICTION IN THE MEDITERRANEAN TERMS OF REFERENCE, 28/11/2015, https://www.operationsophia.eu/wp-content/uploads/2018/03/terms_of_reference-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703103652/https://www.operationsophia.eu/wp-content/uploads/2018/03/terms_of_reference-sm-2015.pdf], p. 1. Their main novelty was that they brought together military personnel, international organizations, governments and NGOs (at the first conference, 80 representatives from 39 different organizations or countries were present, among which 39 civilians and 41 militaries working in the Mediterranean basin.)908EUNAVFOR MED, SHARED AWARENESS AND DECONFLICTION IN THE MEDITERRANEAN TERMS OF REFERENCE, 28/11/2015, https://www.operationsophia.eu/wp-content/uploads/2018/03/terms_of_reference-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703103652/https://www.operationsophia.eu/wp-content/uploads/2018/03/terms_of_reference-sm-2015.pdf], pp. 4-6.
The presence of EU and Member State officials at these regular debrief and planning events which reunited such diverse actors provides substantial evidence that the enactors of the allegedly criminal policies were conscious of the consequences of their decisions. Indeed, the minutes of the working groups show that the European Commission, EUNAVFOR MED military personnel and government officials were exposed to interventions warning them of the breaches of international law that could arise from certain policies.
It was made clear that the Libyan coastguard was linked to smugglers themselves and behaved like mercenaries during their operations. In April 2016, “various attendees asked questions related to the Libya[n] Coast Guard activities, action against or in support of smuggling and trafficking. CJ2 ACOS [EUNAVFOR MED officer] further explained the modus operandi of these so called Coast Guards based in the Libyan West coast.”909EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 4. This proves that the link between the LYCG and smugglers was common knowledge, which was confirmed by Sophia military personnel.[2]
The danger of violating the principle of non-refoulement was explicitly brought up in this context. Among other instances mentioned earlier, in April 2016, a “MSF [Médecins sans Frontières] officer indeed confirmed that places of safety (POS) currently cannot be located in Libya or in places where the rights of migrants are not appropriately recognized. To this respect the Non-refoulement principle and the necessity to deliver rescued people to a place where they are not in danger are the guiding requisites.”910EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 7. The Italian Navy representative then “detailed the legal implications of the recent EU agreements and the range of applicability to current Italian disembarkation points and to SAR activities. He also detailed the Non-refoulement principle applicability and its technical implications,”911EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 7. demonstrating that the lawfulness of externalization policies was explicitly questioned on the basis of the non-refoulement principle.
In the operational working group of the conference in May 12th 2016, the “case of the Sea Watch vessel boarded by the declared Libyan Coast Guard,”912EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 2. when armed men claiming to be from the LYCG shot in the air with an AK47 before entering the Sea-Watch 2 in April,913Sea-Watch, “10 Most Tragic Moments of 2016 at Sea” n.d., https://sea-watch.org/en/10-most-tragic-moments-of-2016-at-sea/?utm_source=, retrieved on 12/04/2021 [https://web.archive.org/web/20241202083522/https://sea-watch.org/en/10-most-tragic-moments-of-2016-at-sea/] was mentioned by retired Vice Admiral Sanfelice di Monteforte, reminding the attendees of the modus operandi of the LYCG.914EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 2. Royal Navy representative John Firth then “highlighted the link between Libyan naval assets and Smuggler Business Model” in another working group, recognizing that the “Libyan Coast Guard might turn an blind eye on Smuggler activities, but they are not part of the model.”915EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 8. In effect, Firth’s intervention attempted to absolve the LYCG, rendering cooperation with them morally possible and strategically logical, at the same time as he highlighted their involvement with smugglers. William Shafley from the US Navy went on to recall the LYCG’s “corruption and lack of experience.”916EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 8.
The dire situation faced by migrants in Libya marred by systematic abuses and human rights violations, was also no secret for the attendees of the ShadeMed conferences. As previously mentioned, throughout the years attendees were repeatedly told about the “situation faced by migrants in Libyan detention centres and the abuse they suffer” as well as the fact that Libya was not a safe country to disembark migrants.917EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], p. 4. 918EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 16. An MSF representative also underlined in another working group that “international actors’ action must take into account the difficult relations with states where rule of law (ROL) is not effective and human rights are not enforced.”919EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 21. The following people were among the present: An officer from EUNAVFOR MED OHQ, Sergio Liardo from the IMRCC, Paolo Unali from the Italian Ministry of Foreign Affairs, Filippo Ciaramelletti from the Italian Guardia di Finanza, Pilar Villanueva from the Spanish Embassy and Ioannis Delis from the Hellenic Coast Guard.
This evidences once again the full awareness EU and its Member States had of the crimes against humanity that migrants were subjected to once intercepted and returned to Libya by the LYCG.
In May 2016, an UNHCR representative delivered an introductory presentation at the second ShadeMed conference, attended by representatives from 74 different organizations. He reminded the attendees that “any agreement which returns a person who may be in need of international protection to a transit country must ensure that he/she will be admitted and protected against refoulement; will have access to fair and efficient procedures for the determination of the refugee status; and will be treated in accordance with international refugee law and human rights standards; including appropriate reception arrangements.”920EUNAVFOR MED, SHADE MED 1- 2016 Morning Session Minutes, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/12-may-morning-session-minutes_en.pdf, retrieved on 03/07/2024,[https://web.archive.org/web/20240703114354/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/12-may-morning-session-minutes_en.pdf], p. 3.
This preoccupation with the principle of non-refoulement was reiterated within the legal working group, where an officer of Sophia’s legal team “recalled the PSC-EEAS decision to follow for Op Sophia the acting procedure of Triton Operation from FRONTEX. All migrants rescued cannot be disembarked in Third Countries. The Op Sophia complies with the full respect of human rights and non-refoulement principle.”921EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 16. Beyond the legal justification of Operation Sophia, this assessment demonstrates once again that the EU and its Member States were fully aware that their policy of disembarkation of migrants in Libya was unlawful.
This was further explicated by an Amnesty International representative who warned against policies that would return migrants to Libya, even if this refoulement was not physically conducted by European naval assets. He “noted that any capacity-building of Libyan Navy and coastguard shall not have the aim or effect of returning migrants and asylum seekers to Libya, where they would be exposed to ill-treatment and other grave human rights violations and would not enjoy international protection.”922EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], pp. 21-22. The following people were present at this working group: An officer from EUNAVFOR MED OHQ, Sergio Liardo from the IMRCC, Paolo Unali from the Italian Ministry of Foreign Affairs, Filippo Ciaramelletti from the Italian Guardia di Finanza, Pilar Villanueva from the Spanish Embassy and Ioannis Delis from the Hellenic Coast Guard. The attendees of this working group were therefore made aware of the deadly and unlawful consequences of what we called refoulement by proxy.
During the same conference, it was reaffirmed that SAR was a legal obligation and did not constitute a pull factor, even though the progressive criminalization of NGOs was based on the opposite assessment that SAR had to be avoided when possible. In May 2016, Captain Oliver Hutchinson from Operation Sophia declared that “albeit not included in the Operation Sophia mission, Search and Rescue operations are still moral and legal (under international law) obligations,”923EUNAVFOR MED, SHADE MED 1- 2016 Morning Session Minutes, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/12-may-morning-session-minutes_en.pdf, retrieved on 03/07/2024,[https://web.archive.org/web/20240703114354/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/12-may-morning-session-minutes_en.pdf], p. 4. making clear that SAR events, although mandatory, were only collateral effects of Sophia’s mission. In the SAR working group, a “University of Leiden representative stated that according to recent studies, SAR activities do not represent a pull factor for the migration phenomena,”924EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 10. reaffirming that avoiding SAR operations did not even have a strategic interest. Sirio Faè from the Italian coastguard (IMRCC) “confirmed that the law enforcement activities related to illegal human trafficking have always been performed along with SAR by ITA Coast Guard Assets and by other Government assets involved in SAR operations.”925EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 10. This working group dedicated to SAR was attended by notably less military or government officials, and mainly by NGOs and international organisations. The following people were nonetheless present: Ioannis Delis from the Hellenic Coast Guard, Demetris Kasinis from the Cyprus Ministry of Defense and the Joint Rescue Coordination Center, Vjekoslav Perisa from Nato’s Maritime Command Center, Sirio Faè from the IMRCC, one military official from EUNAVFOR MED, and the Spanish representative Rafael Fernandez Shaw. This served as the European coastguards’ supposed reassurance that they indeed performed SAR along with their repressive operations; yet the subsequent policy of criminalizing NGOs clearly proves that the EU was still trying to prevent SAR whenever possible to forego a potential pull factor. In another working group, faced with the idea that “naval operations off Libya contributed to the ‘pull factor’,” the EUNAVFORMED representative stated that “the naval force had no option but to rescue migrants also.”926EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7], p. 19. The following people attended this working group: Mrs Camelio from EUROJUST, Mr Palma from the Spanish Embassy in Rome, Captain Gallinelli from the Italian Coast Guard, Commander Drangel from the Swedish Armed Forces, Sacha Bailly from the French Navy, Lieutenant Commander Castellamare from the Italian Navy, and Lieutenants Philippe and Iannantuono from EUNAVFOR MED LEGAD (legal team).
These meetings were attended by a number of EU and Member State officials.[3] There was no doubt that the situation faced by «migrants» in Libya was horrific, and there was a general consensus that Libya could not be considered a “safe country”. The involved actors had full consciousness of the fact that Libyan authorities at the time were untrustworthy, and reestablishing the rule of law would take a long time. Later, in June 2017, the Legal working group, chaired by EUNAVFOR MED’s legal team, came to the understanding that the abuses migrants were subjected to in Libya met the legal characterization of crimes against humanity. In the minutes of the specific meeting the working group acknowledged that:
“the current human rights violations of migrants in Libya, such as enslavement, forced work, torture, sexual slavery or deprivation of liberty could be considered, under some specific circumstances, as crimes against humanity. Indeed, Article 7 of the ICC Statute states that these conducts, regardless of the context of HT [human trafficking] or SM [migrant smuggling], are considered as international crimes if the following requirements are met: migrants are seen as a ‘civilian population’, the perpetrators act on the basis of an organizational/state policy, the attack is widespread/systematic, and the perpetrators act with knowledge of the attack.”927EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 9.
Based on this assertion, the Legal working group stressed that the abuses migrants face in Libya could be prosecuted by any state as crimes against humanity under universal jurisdiction, irrespective, regardless of whether committed in the context of smuggling/trafficking.928EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 9. Rather than terminating the crimes they themselves orchestrated by preventing migrants from reaching Europe at all costs and thus exposing them to these very abuses, Operation Sophia’s legal team focused only at instrumentalizing migrants’ victimization to “offer a possible solution to the legal finish of [migrant smuggling and human trafficking].”929EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 9.
Furthermore, in the same conference, the Migration-SAR-Shipping working group expressed the need to “start a dialogue with Libyans authorities involved on the disembarkation points and detention centres, in order to be in line with the international human rights rules,”930EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 8. thus recognizing this lack of compliance beforehand.
ShadeMed conferences were a unique space where institutions, military personnel and NGOs could meet. It was not, nonetheless, a space of decision: they had no binding power, and they were mainly framed as spaces for discussion. Indeed, the main decisions were taken outside of those conferences: The transition to phase 2A, the extension of Sophia’s mandate and the organization of the training of the LYCG were all decided at the level of the EU or its Member States. It nonetheless constitutes an exceptional resource to demonstrate the EU and Member States’ full awareness of the legal implications of their deathly policies.
In general, the conferences seem to have served as an occasion to drive all stakeholders towards a consensus, based on the agenda pushed by the European Commission and EUNAVFOR MED officials. For instance, Sophia officers, in charge of the secretariat of the working groups, visibly oriented the "conclusions and way ahead" on some occasions, pushing forward policies without consensus or not relaying in extenso warnings about the unlawfulness of those same policies. Some sub-spaces, like the SAR working group, were mainly attended by NGOs and international organizations. This shows the lack of interest of military and government officials in reflection on search and rescue.
There was also an effort to progressively expand the group of stakeholders present at these meetings. Representatives from the Algerian and the Turkish Embassy attended the conference in May 2016.931EUNAVFOR MED operation SOPHIA, SHADE MED Working Group, 12/05/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702160216/https://www.operationsophia.eu/wp-content/uploads/2018/03/2016_working_group_minutessm-2016-1..pdf] [Annex 7] The LYCG themselves were present at the conference in January 2017, explaining directly their firing of “warning shots” at migrants’ boats.932EUNAVFOR MED operation SOPHIA, SHADE MED01-2017 Working Group, https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702161022/https://www.operationsophia.eu/wp-content/uploads/2018/03/shademed_01-07_wg_minutes_and_outcomes_0-sm-2017-1.pdf], p. 2. This occasion offered the possibility for a direct meeting of the various actors, such as EUROPOL and the LYCG, and constitutes a normalization of collaboration between them.
Full minutes of the ShadeMed working groups were initially available, from 2016 to 2018 (except in November 2016, when “Minutes of the individual working groups [were] distributed separately”). From 2019 onwards, only agendas, fact sheets and booklets were available, hiding the content of the meetings themselves. The names of the attendees of the working groups were only detailed in 2016; from January 2017 onwards, their identity is not disclosed anymore.[4]
The ShadeMed minutes leave no doubt that EUNAVFOR MED officials possessed full knowledge of the widespread crimes against migrants in Libya, yet implemented no policy change to halt proxy refoulement or to rescue those imperiled at sea. The ShadeMed participants merely envisioned the ICC itself as a legal tool to prosecute smugglers, based on the abuses migrants faced and they themselves characterized as crimes against humanity. This illustrates the proximity between the enactors of the criminal policies considered in this Communication and the ICC as an institution. Even if the proposed revision of the ICC statute was not performed, the OTP nonetheless moved precisely in the same direction as was desired by EUNAVFOR MED officials, leveraging the UNSC mandate to take into consideration the crimes against “migrants”. The OTP’s exclusive consideration of crimes committed against migrants in Libya under the exclusive perspective of human trafficking and migrant smuggling does not cover the root causes nor the operational orchestrator of the crimes against humanity committed against “migrants” in Libya and the Central Mediterranean as it excludes the crimes’ principal orchestrators: EU and Member States officials.
(d) Auxiliary Projects
The following sections detail various auxiliary projects by the Commission which demonstrate its long-term and systematic efforts to enable the LYCG to intercept and pushback migrants on the Central Mediterranean.
It was reaffirmed that SAR was a legal obligation and did not constitute a pull factor, even though the progressive criminalization of NGOs was based on the opposite assessment that SAR had to be avoided when possible.
From 2006, the Commission has financed a series of “Seahorse Operations” led by Spain in cooperation with Frontex through its Europe Aid AENEAS funding program.933CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020. These were “multi-country coordination and police training projects.”934CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020.
In 2013 these projects expanded to Seahorse Mediterranean which, launched at the same time as the European Border Surveillance System (EUROSUR), was officially adopted into EU legislation, paving the way for third country access to a centralized pool of European intelligence. The project was officially granted 5.5 million euros and approved by the European Commission 19 September 2013.935EUROMED RIGHTS, The Seahorse Mediterraneo Maritime Surveillance Programme: EU Security Dangerously Off-Beam?, 27/09/2013, https://euromedrights.org/publication/the-seahorse-mediterraneo-maritime-surveillance-programme-eu-security-dangerously-off-beam/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114137/https://euromedrights.org/publication/the-seahorse-mediterraneo-maritime-surveillance-programme-eu-security-dangerously-off-beam/] The project comprised a Steering Group composed, inter alia, of representatives from DG HOME, the EEAS and Frontex and the Spanish Jefatura Fiscal y de Fronteras, which implemented Seahorse Mediterranean.936European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf] From the end of 2014 until June 2020, the head of the Jefatura Fiscal y de Fronteras was the general Juan Luis Pérez Martín.937“El general Pérez Martín, nueva autoridad contra la inmigración en el Estrecho y Canarias,” InfoDefensa.com, 02/06/2020, https://www.infodefensa.com/es/2020/06/02/noticia-general-perez-martin-nueva-autoridad-contra-inmigracion-estrecho-canarias.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114527/https://www.infodefensa.com/es/2020/06/02/noticia-general-perez-martin-nueva-autoridad-contra-inmigracion-estrecho-canarias.html] Funding was provided by the Development Cooperation Instrument.938European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 7.
The project’s steering group met regularly to follow up on the training of the Libyan coastguards.939DG HOME, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 08/10/2020 [https://web.archive.org/web/20201008084748/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en] A meeting in February 2017 included representatives from partner Member States (Cyprus, France, Greece, Italy, Malta, Portugal), Frontex, EMSA, DG NEAR, DG DEVCO and representatives from the Libyan coastguards such as Admiral Abdallah Toumia, Commander of the Libyan coastguards and Port Security.940DG HOME, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 08/10/2020 [https://web.archive.org/web/20201008084748/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en] Having a Libyan official in those meetings enabled the EU officials to keep up to date with the developments of the situation in Libya.941DG HOME, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 08/10/2020 [https://web.archive.org/web/20201008084748/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en]
For this report’s purpose, Seahorse Mediterranean can be structured into two main areas of focus: a) the capacity building of the Libyan coastguard and b) the realization of Libyan access to European maritime surveillance systems in form of a “Seahorse Mediterranean Network.”
Training of the Libyan Coastguard within the Seahorse Mediterranean Network
Training of the Libyan coastguard within the framework of the Seahorse Mediterranean Network began in 2013 and ended in January 2019.942European Parliament, Answer given by Mr Avramopoulos on behalf of the European Commission, 21/12/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114833/https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html] This formation included “maritime training (rescue and sea operations), border surveillance, repair and maintenance of patrol vessels, police codes of conduct, and respecting migrants’ human rights.”943European Commission, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114711/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en] Seahorse Mediterranean also trained the General Administration for Coastal Security (‘GACS’) personnel.944European Parliament, Question for written answer E-003807-18 to the Commission Rule 130 Sabine Lösing (GUE/NGL), 11/07/2018,https://www.europarl.europa.eu/doceo/document/E-8-2018-003807_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114947/https://www.europarl.europa.eu/doceo/document/E-8-2018-003807_EN.html]945European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf] Spain, Italy, and Malta trained a total of 141 Libyan coastguard personnel.946European Parliament, Answer given by High Representative/Vice-President Borrell on behalf of the European Commission, 07/05/2020, https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115051/https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html] This of course preceded the later training of the LYCG and is likely the first instance in which the LYCG was directly trained by EU entities within the context of migration. The planning documents for Operation Sophia do not mention this, but given that the actors involved in the Seahorse Project operated within the policy framework under discussion, it is likely that Seahorse Mediterranean provided a basis for later considerations of training Libyan authorities to conduct interceptions of migrants at sea.
Libyan access to the “Seahorse Mediterranean Network”
The main objective of the Seahorse Mediterranean Network was to reinforce and “coordinate” border surveillance systems and specifically improve Libya’s border surveillance by connecting African neighbors to the EUROSUR information network.
Leading up to the Seahorse Meditteranean Network, in December 2015, DG Home, Frontex, and Member State experts developed a “Practical Handbook for implementing and managing the European Border Surveillance System.”947European Commission, Annex to the Commission recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/02/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008085804/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] This handbook for EUROSUR contained a section on “cooperation of Member States with neighboring third countries” which again specifically centers around the “preven[tion of] illegal immigration”.948European Commission, Annex to the Commission recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/02/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008085804/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] It further outlines possible cooperation activities, including “exchange of information…, joint risk analysis and investigation activities with authorities in third countries…, training for third-country authorities in border control activities, search and rescue, fundamental rights, etc…, strengthening third countries’ capacities through programmes co-financed by EU and international funds.”949European Commission, Annex to the Commission recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/02/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008085804/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] Moving further, bilateral cooperation could entail “regional networks, used for exchanging information via secure communication channels, exchanging liaison officers, training, strengthening surveillance capabilities and setting up coordination centers in third countries…; joint operational activities (land, sea, air), including joint patrolling…, training for third-country authorities in border control, search and rescue, fundamental rights, etc…, strengthening capacities through donating assets and technical assistance to improve the border control capabilities of third countries.”950European Commission, Annex to the Commission recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/02/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008085804/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] The handbook specified that such cooperation would be carried out in the context of “agreements and working arrangements” which the Commission has to approve.951European Commission, Annex to the Commission recommendation adopting the Practical Handbook for implementing and managing the European Border Surveillance System (EUROSUR Handbook), 15/02/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008085804/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/legal-documents/docs/eurosur_handbook_annex_en.pdf] The EUROSUR handbook was yet another instrument that made sure to establish a link between the European surveillance capabilities and third country cooperation and paved the way for the creation of the Seahorse Mediterranean Network.
A statement published in January 2017 indicated that “Italy, Malta, Greece, Cyprus, France, Spain, and Portugal have already connected their EUROSUR national coordination centres for border surveillance” for the project.952European Commission, Questions & Answers: Migration on the Central Mediterranean route, 25/01/2017, https://ec.europa.eu/commission/presscorner/detail/fr/MEMO_17_135, retrieved on 01/10/2020 [https://web.archive.org/web/202 Notably, EUROSUR intelligence data comes from “EU military missions, Frontex, and the US command Africom in Stuttgart or the EU Satellite Center.”953MONROY, M., “European border surveillance in Libya,” Security Architectures and Police Collaboration in the EU, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/] The Mediterranean Cooperation Centre in Rome connected all these countries and was later supposed to integrate Libyan control centers.954MONROY, M., “European border surveillance in Libya,” Security Architectures and Police Collaboration in the EU, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/] The 2017 statement further elaborated that the focus centered on ensuring the LYCG had the technical capacity to “connect with Member States, so that all will be able to inform each other about incidents in near-real time, and coordinate their patrolling activities.”955European Commission, Questions & Answers: Migration on the Central Mediterranean route, 25/01/2017, https://ec.europa.eu/commission/presscorner/detail/fr/MEMO_17_135, retrieved on 01/10/2020 [https://web.archive.org/web/202 At the time, the EU was planning for the Seahorse Mediterranean Network to start performing its duties by spring 2017.956European Commission, Questions & Answers: Migration on the Central Mediterranean route, 25/01/2017, https://ec.europa.eu/commission/presscorner/detail/fr/MEMO_17_135, retrieved on 01/10/2020 [https://web.archive.org/web/202
Libya was supposed to become the first third country to join the network.957MONROY, M., “A seahorse for the Mediterranean: Border surveillance for Libyan search and rescue zone,” Security Architectures and Police Collaboration in the EU, 03/01/2018, https://digit.site36.net/2018/01/03/border-surveillance-technology-for-new-libyan-search-and-rescue-zone/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115449/https://digit.site36.net/2018/01/03/border-surveillance-technology-for-new-libyan-search-and-rescue-zone/] To achieve this objective, the Spanish Guardia Civil, together with the Italian Coast Guard, subsequently started “to equip and train Libyans with new technology, which included radar equipment and drones.”958MONROY, M., “European border surveillance in Libya,” Security Architectures and Police Collaboration in the EU, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/] Italy and the EU further planned to provide “285 million euros for the expansion of border surveillance” to Libya.959MONROY, M., “European border surveillance in Libya,” Security Architectures and Police Collaboration in the EU, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/] The Commission had already “fund[ed] the establishment of several “operational control centres” with 42.2 million euros.960MONROY, M., “European border surveillance in Libya,” Security Architectures and Police Collaboration in the EU, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/]
With regards to the integration of Libya, the regulation governing EUROSUR explicitly prohibits full-scale access by third countries but allows for defined “regional networks, such as the Seahorse Mediterranean network.”961European Parliament, Answer given by Mr Avramopoulos on behalf of the European Commission, 21/12/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114833/https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html] Despite this exception, the integration of Libya into the system was held until Libya met the necessary conditions under which EU regulations permit an exchange of such sensitive data with third countries.
In an answer to an MEP the Commission stated that:
“the satellite-supported communication infrastructure of the Seahorse Mediterranean network will be established in 2017, if the security situation in Libya allows, and will enable the [Libyan coastguards] to exchange information on incidents and contribute to rescue operations…[Frontex] will support this cooperation with regular monitoring and surveillance information.”962European Parliament, Answer given by Mr Avramopoulos on behalf of the Commission, 30/03/2017, https://www.europarl.europa.eu/doceo/document/E-8-2017-000223-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115649/https://www.europarl.europa.eu/doceo/document/E-8-2017-000223-ASW_EN.html]
A year later, in a letter to Austria’s Interior Minister Herbert Kickl (during the time of Austria’s European Presidency) on 16 July 2018, Frontex advocated for a change of regulation to enable them to start sharing surveillance data with LYCG forces.963Council of the European Union, Annual report on the practical application of Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, 16/07/2018, http://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115805/https://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf] Shortly after in September 2018, the European Commission was discussing such a change of regulation, including permitting Frontex to share surveillance data with third countries.964European Commission, Regulation of the European Parliament and the Council, on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council, A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018, 12/09/2018, https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115926/https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF] Two months later, the German government responded to an inquiry by an opposition party that Libya was to be connected to the Seahorse Mediterranean Network by the end of that year.965Deutscher Bundestag, Schriftliche Fragen mit den in der Woche vom 26. November 2018 eingegangenen Antworten der Bundesregierung, 30/11/2018, http://dipbt.bundestag.de/doc/btd/19/062/1906212.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001120020/http://dipbt.bundestag.de/doc/btd/19/062/1906212.pdf]
As of 2020, this had not been greenlighted by the EU.966Council of the European Union, Annual report on the practical application of Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, 16/07/2018, http://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf, retrieved on 01/10/2020, [https://web.archive.org/web/20201001115805/https://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf] preambular paragraph. 88. The legislation resulting out of the initial proposal states that “where the Commission recommends that the Council authorize it to negotiate a status agreement with a third country, the Commission should assess the fundamental rights situation relevant to the areas covered by the status agreement in that third country.”967European Parliament, Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, 14/11/2019, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32019R1896, retrieved on 01/10/2020, [https://web.archive.org/web/20201001120158/https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32019R1896] preambular paragraph 91}} The legislation further specifies that in order for an agreement to be approved the “cooperation… [would have to be] in full compliance with fundamental rights.”968European Parliament, Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, 14/11/2019, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32019R1896, retrieved on 01/10/2020, [https://web.archive.org/web/20201001120158/https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32019R1896] As of 2023, however, it seems that no agreement ever came to be due to the “lack of interest of the North African countries to cooperate,” according to the European Commission.969European Parliament, Answer given by Ms Johansson on behalf of the European Commission, 03/01/2024, https://www.europarl.europa.eu/doceo/document/E-9-2023-002882-ASW_EN.html, retrieved on 14/07/2024
However, the Commission recently admitted that Frontex had “provided notice in 42 cases” of distressed “migrants” to the Libyan authorities, information that was drawn from Multipurpose Aerial Surveillance in the framework of EUROSUR.970European Parliament, Answer given by Vice-President Borrell on behalf of the European Commission, 08/01/2020, https://www.europarl.europa.eu/doceo/document/E-9-2019-002654-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001120255/https://www.europarl.europa.eu/doceo/document/E-9-2019-002654-ASW_EN.html] The question remains why the EU planned to integrate Libya in 2018 but ultimately neglected to follow through.
Both this early training of the LYCG and the attempted incorporation of Libya into an EU-led surveillance network demonstrate the long-term and systematic character of the EU’s efforts to deploy the LYCG to intercept and pushback migrants attempting to reach Europe.
Training of Libyan maritime authorities through the SafeMed projects
SafeMed III Project
From June 2013 to June 2016, DG NEAR contracted the European Maritime Safety Agency (EMSA) to “support the further ratification and implementation of international maritime safety and security conventions and improving the relevant capacities of maritime administrations in the Mediterranean partner countries.”971EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 4.
This project was titled “SafeMed III” and the beneficiary countries were Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, the Palestinian Authority, Syria and Tunisia. This action specifically targeted the maritime authorities of these countries. The budget for this program was 3 million euros and carried out solely by EMSA. Included in this assistance was to “boost expertise and organizational capacity…[and] enhance communication and information sharing between Beneficiaries, EMSA, and EU Member States […] concerning maritime safety [and] security.”972EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 4. The contract further listed “better information available regarding vessel movements and increased sharing of data among neighboring countries” under “estimated results.”973EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 5.
The EMSA conclusively trained Libyan maritime authorities - whether this explicitly includes the Libyan coastguards remains unclear - tasked with, among other things, data sharing, and enabling “access to a range of interesting services and tools now provided only to EU Member States.”974EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 7.
The contract detailed the EU’s desires to create a “Mediterranean system [of surveillance]” with regards to vessel monitoring and tracking.975EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 12. It does this through the SafeSeaNet (SSN) which collects this information and creates a “Maritime Data Exchange between maritime administrations of the Member States.”976EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 12. The objective stated in the contract was to “ideally […] include SAFEMED beneficiaries” which included Libyan maritime authorities.977EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 12. Later, “pilot initiatives to share AIS data at sub-regional level” were also mentioned.978EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 13. Earlier projects – SAFEMED I & II – apparently only had AIS data sharing between beneficiary countries which was not “a priority” and the beneficiaries were “very positive to participating in the SafeSeaNet and sharing data with the EU Member States.”979EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 12. While it must be noted that in these first two projects Libya was not part of the beneficiaries participating in data sharing, it was not specifically excluded in this third project at any point, the contract only referring to “the beneficiaries”, explicitly including Libya.
EMSA’s training was thus designed to equip and prepare countries, including Libya, to participate in such a Mediterranean system as they currently lacked “availability of adequate infrastructure (i.e. alerting posts and coastal stations, traffic and search and rescue coordination centres).”980EMSA, Grant Contract – External Actions of the European Union Contract N°2012/308-813, January 2012, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1, retrieved on 07/10/2024 [https://web.archive.org/web/20250314155512/https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/7/5%20Grant%20Contract%20COM%20EMSA%20SAFEMED%20III.pdf?cookie_passthrough=1], p. 12. Consequently, EMSA was tasked with both implementing the necessary structures in Libya, to be part of such a Mediterranean system of surveillance and exchange of maritime data between MS on vessel tracking, as well as building its compliance with “international standards” of, for example, the IMO (organization is explicitly mentioned in the contract).
SafeMed IV Project
SafeMed III was followed by SafeMed IV in which EMSA was tasked with continuing its assistance from the earlier project981EMSA, SAFEMED IV Project 1st Steering Committee Meeting 25 – 26 September 2017, Lisbon, 26/09/2017 [ANNEX 10] and training participating countries among other things in vessel traffic monitoring and information systems982EMSA, Component 3 - Vessel Traffic Monitoring and Information Systems, http://emsa.europa.eu/safemed-iv-project/component-3-vessel-traffic-monitoring-and-information-systems.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001120410/http://emsa.europa.eu/safemed-iv-project/component-3-vessel-traffic-monitoring-and-information-systems.html] and providing support in enhancing cooperation and information sharing among Member States and third countries.983EMSA, Component 7 - Mediterranean Coast Guard Functions Forum, http://emsa.europa.eu/safemed-iv-project/component-7-mediterranean-coast-guard-functions-forum.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001120704/http://emsa.europa.eu/safemed-iv-project/component-7-mediterranean-coast-guard-functions-forum.html]
In this projected, which started in January 2017, the beneficiary countries were able to present their maritime administrations and ask for technical assistance for specific needs. Some unspecified beneficiaries asked for training related to SAR.984EMSA, SAFEMED IV Project 1st Steering Committee Meeting 25 – 26 September 2017, Lisbon, 26/09/2017 [ANNEX 10] The multi-phase plan for this project also included “exchange of T-AIS data between SAFEMED countries and EU Member States” in phase 2 and the “involvement of SAFEMED countries in SSN” in phase 3. The Italian Coast Guard played a key role in this as they are responsible for operating the Mediterranean AIS Regional Server (MAREΣ). Service Level Agreements between EMSA, the Italian Coast Guard and individually Morocco, Jordan and Tunisia985EMSA, Service Level Agreement between the European Maritime Safety Agency (hereinafter EMSA) and the Italian Coast Guard (hereinafter ICG) and the Maritime Administration of Morocco as beneficiary country participating to the SafeMed III project for the provision of Integrated Maritime Services and use of the Mediterranean AIS Regional Server (MARE∑) to support the establishment of pilot projects to extend cooperation on AIS matters within the scope of the SAFEMED III project, https://www.asktheeu.org/request/agreements_regarding_emsa_mariti/response/24415/attach/15/7%20SLA%20EMSA%20ICG%20Morocco%20AIS.pdf?cookie_passthrough=1, retrieved on 01/10/2020 [https://web.archive.org/web/20201001121017/https://www.asktheeu.org/en/request/7434/response/24415/attach/15/7%20SLA%20EMSA%20ICG%20Morocco%20AIS.pdf?cookie_passthrough=1] were signed in phase 1. An overview of 2018 EMSA training sessions confirms that Libyan nationals were among the 207 participants of the SafeMed IV countries trained by EMSA.986EMSA, Capacity Building at EMSA 2018, 19/08/2019, http://emsa.europa.eu/infographics/item/3670-capacity-building-at-emsa-2018.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001121540/https://platform.twitter.com/widgets/widget_iframe.2d7d9a6d04538bf11c7b23641e75738c.html?origin=http%3A%2F%2Femsa.europa.eu]
In March 2019, EMSA conducted search and rescue training, in collaboration with the Italian coastguard, including with Libyan participants.987MSA, SAFEMED IV Seminar on Search and Rescue, 28/03/2019, http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001121820/http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html] In one of the presentations given at this training, a presentation slide stated that “the best way to implement an effective border control at sea is… to conduct S.A.R. operations.988Italian Ministry of Infrastructure and Transport, Rescue of Migrants, Presentation, http://www.emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html, retrieved on 16/04/2021 [https://web.archive.org/web/20201001121820/http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html] [Annex 4] slide 28. At the 2nd Steering Committee Meeting, “Migration and people trafficking” was explicitly mentioned as one of the “maritime challenges.” 989EMSA, SAFEMED IV Project 2nd Steering Committee, Presentation, 10/10/2018, http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html, retrieved on 16/04/2021 [https://web.archive.org/web/20210112104205/http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html] [Annex 2] slide 4. A representative of the Libyan Maritime Authority was also present. Libya requested training for the following points: (Vessel) traffic monitoring, search and rescue, and maritime international conventions, among others.990Libyan Ports & Maritime Transport Authority, Untitled, Presentation, 10/10/2018, http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html, retrieved on 16/04/2021 [https://web.archive.org/web/20210112104205/http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html] [Annex 3] slide 4. In 2019 feedback from Libya to EMSA, it stated that the agency had improved their performance in “search and rescue and cooperation regional […] and prepar[ing] national maritime legislation in the maritime field to apply regulations and rules issued by IMO.”991EMSA, SAFEMED IV Project 3rd Steering Committee, Presentation, 03-04/09/2019 [Annex 1], p. 6.
(e) Information-sharing with Libya
Information-sharing through EUROSUR falls within the scope of border management and is thus likely within the area of responsibility of DG HOME. In a leaked letter from Director-General of DG HOME Paraskevi Michou to Frontex Executive Director Fabrice Leggeri, dated March 18th, 2019, Michou wrote that the Commission considered it would be lawful for the operational plan of JO Themis to include procedures for informing sightings of vessels in distress at sea to the Libyan coastguard.992MICHOU, P., Letter to Fabrice Leggeri, 18/03/2019, http://www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008100258/https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019%291362751%20Rev.pdf] For more details on this exchange see section IV.C.vii on Multiple Aerial Surveillance (MAS). This would include data on vessel monitoring and detection through satellite technology which is also part of EUROSUR. The letter showed that the aerial assets of Operation Sophia had shared comparable information with the Libyan authorities.993CARRERA, S., and STEFAN, M., Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union: Complaint Mechanisms and Access to Justice, Routledge, 12/02/2020, in print, 9780367195809 It further demonstrates that Michou must have been involved in the decision.994European Commission, “Letter to Fabrice Leggeri,” https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 21/03/2024 [https://web.archive.org/web/20220301132132/http://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf]
According to scholars Stefan and Carrera, this position is in contradiction with the fact that multiple United Nations actors such as the OHCHR, UNSMIL and IOM have reiterated that Libya cannot be considered as a “safe port” and that “those rescued and intercepted at sea should not be returned there.”995CARRERA, S., and STEFAN, M., Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union: Complaint Mechanisms and Access to Justice, Routledge, 12/02/2020, in print, 9780367195809
In addition to the extensive assessment of Libya not being a safe place for disembarkation, the reports of the conditions faced by ‘migrants’ amounting to crimes against humanity, the warnings about violation of the principle of non-refoulement Commission members were confronted with at the ShadeMed conferences, the Commission itself has also consistently described the conditions faced by “migrants” in Libya as “appalling”.996European Commission, Communication from the Commission to the European Parliament, the European Council and the Council Progress report on the Implementation of the European Agenda on Migration, 14/03/2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113358/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf], p. 10. 997European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Progress report on the Implementation of the European Agenda on Migration, 16/05/2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180516_progress-report-european-agenda-migration_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001122219/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180516_progress-report-european-agenda-migration_en.pdf], p. 10. 998European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Progress report on the Implementation of the European Agenda on Migration, 16/10/2019, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20191016_com-2019-481-report_en.pdf, retrieved on 01/10/2020, p. 1 [https://web.archive.org/web/20201001122542/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20191016_com-2019-481-report_en.pdf], p. 1. 999European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Progress report on the Implementation of the European Agenda on Migration, 06/03/2019, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20190306_com-2019-126-report_en.pdf, retrieved on 01/10/2020, p. 6 [https://web.archive.org/web/20201001122746/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20190306_com-2019-126-report_en.pdf], p. 6. 1000European Commission, Report from the Commission to the European Parliament, the European Council and the Council, Progress report on the European Agenda on Migration, 15/11/2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20171114_progress_report_on_the_european_agenda_on_migration_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001122905/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20171114_progress_report_on_the_european_agenda_on_migration_en.pdf]
This descriptor was used in more than four progress reports on the implementation of the European Agenda on Migration. In March 2018, for example, the Commission referred to the “torture and inhuman treatment in detention centers… [and] the system of arbitrary and systematic detention of migrants.”1001European Commission, Communication from the Commission to the European Parliament, the European Council and the Council Progress report on the Implementation of the European Agenda on Migration, 14/03/2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf, retrieved on 01/10/2020, p. 11 [https://web.archive.org/web/20201001113358/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20180314_progress-report-progress-report-european-agenda-migration_en.pdf], p. 11. In all instances, these assessments were made in the same sections in which the progress of the EU cooperation with Libya was praised. An UNHCR official, an organization which closely cooperates with the EU and is part of many migration-related projects including in Libya, recently admitted that “nobody in the international community could pretend they did not understand how dangerous Libya had become.”1002HOWDEN, D., FOTIADIS, A., and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 01/10/2020 [https://web.archive.org/web/20201001113215/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal]
[1] See subsection on ShadeMed Conferences IV.C.ii.d
[2] The following people were among the present: Alberto Volpato from the DG HOME of the European Commission, Vladimir Jevtic and Rainer Schrammen from NATO’s Maritime Command Center, Andres Tassara and Marco Mincio from the Italian Coastguard, Francesco Fagnani from the Italian Navy, Maria Pia Marinelli from the Italian Polizia di Stato, Paolo Unali from the Italian Ministry of Foreign Affairs, Keith Mizzi from the Armed Forces of Malta and multiple Sophia officers.
[3] The following people were present at the relevant meetings: Alberto Volpato from the DG HOME of the European Commission, Vladimir Jevtic and Rainer Schrammen from NATO’s Maritime Command Center, Andres Tassara and Marco Mincio from the Italian Coastguard, Francesco Fagnani from the Italian Navy, Maria Pia Marinelli from the Italian Polizia di Stato, Paolo Unali from the Italian Ministry of Foreign Affairs, Keith Mizzi from the Armed Forces of Malta and multiple Sophia officers, Mrs Camelio from EUROJUST, Mr Palma from the Spanish Embassy in Rome, Captain Gallinelli from the Italian Coast Guard, Commander Drangel from the Swedish Armed Forces, Sacha Bailly from the French Navy, Lieutenant Commander Castellamare from the Italian Navy, and Lieutenants Philippe and Iannantuono from EUNAVFOR MED LEGAD (legal team).
[4] An investigation by the Office of the Prosecutor might be able to declassify this information.
IIICriminalization of NGOs
The criminalization of NGOs conducting search and rescue missions in the Central Mediterranean was supported and promoted by the Commission and included in its official response to the refugee situation. One of the prominent means to this end was drafting the code of conduct.
In a 3 July 2017 meeting of Ministers of the Interior (France, Germany, Italy) and the European Commissioner for Migration and Home Affairs Avramopoulos, the participants expressed their resolute solidarity with Italy which was facing an increasing number of arrivals. In order to provide increased ‘support’ to Italy and help stem the migration flow, they agreed on different measures, including to strengthen support for the Libyan coastguards by increasing training activities and providing additional financial support, while ensuring close monitoring of activities.1003Ministère de l’Intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094109/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire] They further agreed to work on a code of conduct for NGOs which was to be prepared and presented by Italy in order to improve coordination with NGOs operating in the Central Mediterranean.1004Ministère de l’Intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094109/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire] 1005Migrants : vers un ‘code de conduite pour les ONG’ face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 30/09/2020 [https://web.archive.org/web/20240814002129/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569] The European Commission agreed and stated through an official press release on 4 July 2017 that “Italy should draft, in consultation with the Commission and on the basis of a dialogue with the NGOs, a Code of Conduct for NGOs involved in SAR activities. The Council could possibly endorse such Code of Conduct.”1006European Commission, Central Mediterranean Route: Commission proposes Action Plan to support Italy, reduce pressure and increase solidarity, 04/07/2017, https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1882, retrieved on 30/09/2020 To allow rapid progress in ‘support’ of Italy, the Interior Ministers of France, Germany, and Italy, as well as the European Commissioner for Migration and Home Affairs, called on all their EU partners to examine these action points at the next informal meeting of the Council of the EU on 6 July.1007Ministère de l’Intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094109/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire]
In March 2018, EU officials were informed of a meeting between MSF and Simon Mordue to discuss different points concerning the criminalization of NGOs.1008European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid More precisely, MSF wrote “a letter to Mordue on [March 29th, 2018] expressing their concern over the criminalization of NGOs carrying out SAR in the Central Mediterranean.”1009European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid This happened shortly after Italian authorities confiscated a ship of the NGO ProActiva Open Arms. MSF raised certain points, for instance the financial impact of the confiscation of assets for NGOs, the non-binding nature of the Italian Code of Conduct and the increase of search and rescue carried out by the Libyan coastguard.1010European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid
Mordue responded stating that the Commission “never implied that the Code of Conduct was a legally binding document.”1011European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid He said that the Commission had “provided legal and technical support to the [Italian] authorities to drafting the Code which was then presented by the [Italian] Minister of Interior to other EU [Member States] and received broad support.”1012European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid Mordue further claimed that the project carried out by Italy “aim[ed] to establish a functional Libyan MRCC precisely to avoid discoordination in SAR events and end the current ‘grey area’.”1013European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid He then went on to suggest that the Commission was committed to an improvement of the conditions in Libya and that the “training provided by Operation Sophia…[was intended to] increase the professionalism and accountability of the Libyan Coast Guard which already [underwent] a robust vetting procedure before they began trainings.”1014European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid
This whole exchange was detailed in a letter from an unknown individual from DG HOME, with their name redacted, to Marta Cygan and Laurent Muschel.1015European Commission, MSF meeting with DDG Mordue – Flash Report, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf, retrieved on 30/09/2020 [https://web.archive.org/web/20200930094533/https://www.asktheeu.org/en/request/5273/response/17641/attach/16/annex%2010.pdf][6] ibid This proves that DG HOME was involved in drafting the Code of Conduct and thus in the criminalization of NGOs.
Moreover, in 2018, Marta Cygan received an email which indicated that recipients discussed the incident with the NGO ProActiva Open Arms.1016European Commission, HOME Coordination Meeting on Central Mediterranean Route/ Italy- 17th April 2018, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001105757/https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf][14] ibid It said that “the Ragusa judge decision rejecting the seizure of the ship was discussed, including relevant parts such as the interpretation of the state of necessity in relation to the assessment of Libya not qualifying as a place of safety and the implementation of the non-refoulement principle. The decree also touched upon the Libyan SAR area, not putting its legitimacy into question.”1017European Commission, HOME Coordination Meeting on Central Mediterranean Route/ Italy- 17th April 2018, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001105757/https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf][14] ibid At the end, a staff member from DG HOME noted to multiple of his DG colleagues, among whom Michou and Cygan that DG Home will “watch the next steps at judicial level…closely.”1018European Commission, HOME Coordination Meeting on Central Mediterranean Route/ Italy- 17th April 2018, 17/05/2018, https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001105757/https://www.asktheeu.org/en/request/5273/response/17641/attach/11/annex%207.pdf][14] ibid Again, this indicates that DG HOME was concerned about NGOs conducting search and rescue operations and proactively monitored its evolution taking stances in favor of its inhibition and pushing for alternative responsive paths.
DEuropean Union Emergency Trust Fund for Africa (EUTF)
IThe Valletta Summit - Creation of the EUTF
The EUTF for Africa was formally adopted at the Valletta Summit on 12 November 2015,1019Emergency Trust Fund for Africa, Our Mission P, https://trust-fund-for-africa.europa.eu/our-mission-p_en, retrieved on 01/10/2020 [https://web.archive.org/web/20230608031039/https://trust-fund-for-africa.europa.eu/our-mission-p_en] in connection with the European Agenda on Migration.
During this Valletta Summit, European and African leaders discussed the ongoing ‘European’ migration ‘crisis’. These talks resulted in the drafting of an Action plan, adoption of the EUTF for Africa, and a commitment by African countries to help European countries stem the ‘crisis’.
Initially, the Summit was convened following a decision taken by the European Council on 23 April 2015. After Merkel’s decision to facilitate the crossing of people having taken the central European route into Germany, she reinforced her policy priority consisting in limiting migration inflows and externalizing the “problem” to Africa. Merkel initiated the proposition to have the Valletta Summit to discuss these issues.1020Interviewee I22 According to the Federal Government of Germany:
“The EU-Africa Summit in Valletta was organized in response to an initiative of the Chancellor at the special meeting of the European Council on 23 April. Over the last few months, she has vigorously advocated stepping up cooperation between the EU and the countries of origin of migrants and the transit states.”1021The Federal Government, Ushering in a new phase of cooperation, https://www.bundesregierung.de/breg-en/issues/ushering-in-a-new-phase-of-cooperation-483212, retrieved on 01/10/2023 [https://web.archive.org/web/20201001123517/https://www.bundesregierung.de/breg-en/issues/ushering-in-a-new-phase-of-cooperation-483212]
During this European Council, it was decided that the EU had to prevent migratory flows reinforcing its “political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings”. It was also decided that the EU had to discuss these issues with its African partners and propose the “holding of a summit in Malta.”1022European Council, Special meeting of the European Council, 23 April 2015 – statement, 23/04/2015, https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001110605/https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/] This further highlights the will of the EU to increase the externalization of its borders towards Africa and to delegate the containing of migration flows to third countries.
During the Valletta Summit, an Action plan was drawn with five priority domains: “development benefits of migration and addressing root causes of irregular migration and forced displacement; legal migration and mobility; protection and asylum; prevention of and fight against irregular migration, migrant smuggling and trafficking in human beings ; and return, readmission and reintegration.”1023European Council, Valletta Summit, 11-12 November 2015, Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001123802/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf] Three of these five priorities aimed at forcibly stemming migration from Europe. “Legal migration and mobility” has been a European promise for years, yet was never effectively implemented, and “protection and asylum” which “migrants” were seeking upon their arrival in Europe has remained an unattainable dream.
Looking at the overall strategy, the Valletta Action plan which planned to “develop training mechanisms for border guards” by the end of 2016,1024European Council, Valletta Summit, 11-12 November 2015, Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001123802/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf], p. 15. can be seen as the continuation of existing programs under Operation Sophia and the Seahorse MediterraneanNetwork.
In order to finance the implementation of the Action plan, the EU and its Members States planned to use the existing apparatus of development and aid instruments. In parallel, the EU and its Member States established the EUTF for Africa, to provide additional funding for the Action plan’s objectives.1025European Council, Valletta Summit, 11-12 November 2015, Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001123802/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf], p. 1.
On 12 November 2015, the European Commission, 25 EU Member States, Norway and Switzerland signed the Constitutive Agreement establishing the EUTF and its strategy.1026European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 7.
(a) The EUTF’s Objectives and strategic priorities
The EUTF—in its long form the “European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa”—was created “to support the objectives and implement the activities of the Valletta Action Plan that emerged from the Summit.”1027European Emergency Trust Fund for Africa, EU EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA North of Africa Window First Monitoring Report, May 2019, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124159/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf], p. 9. It was expected to cease activities on 31 December 2020, but saw its mandate renewed for a year at the time1028European Commission, Constitutive Agreement European Emergency Trust Fund for Africa, 12/11/2015, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/original_constitutive_agreement_en_with_signatures.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124401/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/original_constitutive_agreement_en_with_signatures.pdf] article 17.2. 1029European Commission, Draft General Budget of the European Union for the financial year 2020, Working Document Part XI, EU trust funds, May 2019, https://ec.europa.eu/info/sites/info/files/about_the_european_commission/eu_budget/draft-budget-2020-wd-11-web-1.4_coverfull.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124625/https://ec.europa.eu/info/sites/info/files/about_the_european_commission/eu_budget/draft-budget-2020-wd-11-web-1.4_coverfull.pdf] and is still active today.
The EUTF was created to supposedly “foster stability in different countries across Africa.” “Stability in Africa” was viewed as key for the EU, as only “stable” states, with a proper police and defense apparatus could effectively “stem” migratory flows to Europe. Actions of the EU under the EUTF were thus initially premised as single-focused: setting up police, coastguard, and other military forces capable of holding «migrants» back.
The EUTF encompasses the major migration routes to Europe and is supposed to contribute to ‘better’ migration management by:
“addressing the root causes of destabilization, forced displacement and irregular migration and by promoting economic and equal opportunities, security and development and a tighter Africa-EU cooperation on issues of migration control, return and readmission.”1030European Commission, European Union Emergency Trust Fund for Africa (EUTF for Africa), https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network/glossary_search/european-union-emergency-trust-fund_en, retrieved on 01/10/2020 [https://web.archive.org/web/20201001123329/https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network/glossary_search/european-union-emergency-trust-fund_en] 1031European Council, Valletta Summit, 11-12 November 2015, Action Plan, 12/11/2015, https://www.consilium.europa.eu/media/21839/action_plan_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001123802/https://www.consilium.europa.eu/media/21839/action_plan_en.pdf]
Its policies explicitly include the externalization of “migration management,” through “strengthening the capacity of third countries to manage their borders.” The aim is to:
“strengthen institutions mandated to manage migration […] to improve capacities to prevent irregular migration and fight against trafficking in human beings and migrant smuggling […] ensure a human rights-based approach […] including strict adherence to the principles of ‘non-refoulement’ and 'do-no-harm'.”1032EU Emergency Trust Fund for Africa, “Improved migration management” n.d., https://trust-fund-for-africa.europa.eu/taxonomy/term/219_en, retrieved on 26/03/2025 [https://web.archive.org/web/20240706103932/https://trust-fund-for-africa.europa.eu/taxonomy/term/219_en]
The “improved migration management” objective represented 31% of the funds allocated by the EUTF.1033European Emergency Trust Fund for Africa, The EU Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa, 2020, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/facsheet_eutf_short_17-01-2020.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001125456/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/facsheet_eutf_short_17-01-2020.pdf], p. 3.
(b) EUTF Financial resources
As of 15 June 2020, the EUTF was worth over 4.9 billion euros, including 4.3 billion euros from the European Development Fund (EDF), a body relying on countries voluntary contributions through which most European development aid funds are raised and distributed in Africa, the Caribbean and Pacific; and EU financial instruments including the Development Cooperation Instrument (DCI), European Neighbourhood Instrument (ENI), DG HOME and DG ECHO funding, with almost 90% of the contributions coming from the EU.1034European Emergency Trust Fund for Africa, State of Play and Financial resources, 09/09/2020, https://ec.europa.eu/trustfundforafrica/content/trust-fund-financials_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133125/https://ec.europa.eu/trustfundforafrica/content/trust-fund-financials_en] Importantly, the fund was incorporated into a new funding mechanism that is now part of the annual budget and therefore “fully covered by democratic scrutiny of the European Parliament,”1035CONCORD, Budgetisation of the European Development Fund, 15-19/06/2013, https://concordeurope.org/wp-content/uploads/2016/07/Brussels_Briefing_Papers_Budgetisation_En.pdf?utm_, retrieved on 23/05/2025 indicating that for the entire period from 2013 to 2020, the fund had no democratic oversight.
73% of the EUTF funding comes from the European Development Fund (EDF) and 20% from the EU budget. 7% of the EUTF funding comes directly from the EU Member States and other donors (Switzerland and Norway), which have contributed around 599 million euros.1036European Emergency Trust Fund for Africa, State of Play and Financial resources, 09/09/2020, https://ec.europa.eu/trustfundforafrica/content/trust-fund-financials_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133125/https://ec.europa.eu/trustfundforafrica/content/trust-fund-financials_en]
(c) EU Member States and other donors contributions (pledges and received contributions)1037European Emergency Trust Fund for Africa, Table I – EU MS and other donors contributions (pledges and received contributions), https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/member_states_contributions.docx.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133300/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/member_states_contributions.docx.pdf]
|
Donor |
Contributions Pledged |
Contribution Received |
|---|---|---|
|
Austria |
8 000 000 |
8 000 000 |
|
Belgium |
12 000 000 |
12 000 000 |
|
Bulgaria |
550 000 |
550 000 |
|
Croatia |
600 000 |
600 000 |
|
Cyprus |
100 000 |
100 000 |
|
Czech Republic |
10 411 624 |
10 411 621 |
|
Denmark |
50 244 646 |
42 216 083 |
|
Estonia |
1 750 000 |
1 750 000 |
|
Finland |
7 500 000 |
7 500 000 |
|
France |
9 000 000 |
9 000 000 |
|
Germany |
225 000 000 |
225 000 000 |
|
Greece |
50 000 |
50 000 |
|
Hungary |
9 450 000 |
9 450 000 |
|
Ireland |
15 755 000 |
15 755 000 |
|
Italy |
123 000 000 |
123 000 000 |
|
Latvia |
600 000 |
600 000 |
|
Lithuania |
400 000 |
400 000 |
|
Luxembourg |
4 100 000 |
4 100 000 |
|
Malta |
475 000 |
475 000 |
|
The Netherlands |
26 362 000 |
26 362 000 |
|
Norway |
21 347 978 |
21 347 978 |
|
Poland |
10 550 748 |
10 550 748 |
|
Portugal |
5 000 000 |
5 000 000 |
|
Romania |
100 000 |
100 000 |
|
Slovakia |
10 350 000 |
10 350 000 |
|
Slovenia |
130 000 |
130 000 |
|
Spain |
9 000 000 |
9 000 000 |
|
Sweden |
11 781 784 |
8 937 184 |
|
Switzerland |
4 100 000 |
4 100 000 |
|
United Kingdom |
21 000 000 |
20 400 000 |
|
TOTAL CONTRIBUTION |
598 708 780 |
587 235 617 |
Member States' EUTF Contribution
1038European Emergency Trust Fund for Africa, Co-financing contributions (EUR), https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/cofinancing.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133356/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/cofinancing.pdf]
As of 15 June 2020, 226 programs had been approved by the Operational Committees. Although some steps were apparently taken to allow for monitoring and evaluation of projects,1039European Emergency Trust Fund for Africa, Research and Evidence Facility, https://ec.europa.eu/trustfundforafrica/region/horn-africa/regional/research-and-evidence-facility_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006132615/https://ec.europa.eu/trustfundforafrica/region/horn-africa/regional/research-and-evidence-facility_en] the Court of Auditors has concluded that the Fund was still lacking “a system for monitoring results across the Windows.”1040European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 26.
According to Oxfam “22% of the EUTF for Africa budget is allocated to migration management, 13.5% to security and peacebuilding, 63% to development cooperation and 1.5% to research and monitoring.” Oxfam found that within migration management projects, 55% are designed “to restrict and discourage irregular migration through migration containment and control” and only 3% of the EUTF budget is allocated to the development of safe and regular routes.1041Oxfam, An Emergency for whom? The EU Emergency Trust Fund for Africa – migratory rules and development aid in Africa, November 2017, https://oi-files-d8-prod.s3.eu-west-2.amazonaws.com/s3fs-public/file_attachments/bp-emergency-for-whom-eutf-africa-migration-151117-en_1.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133551/https://oi-files-d8-prod.s3.eu-west-2.amazonaws.com/s3fs-public/file_attachments/bp-emergency-for-whom-eutf-africa-migration-151117-en_1.pdf], pp. 2, 4.
(a) EUTF Governance
Trust Funds for external actions are a specific type of EU instrument, allowed since January 2013. They are created to respond to “emergency, post-emergency or thematic actions” for a limited duration, and are multi-donor trust funds.1042European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 4.
For each region/window of the EUTF, the European Commission has appointed a manager who acts as Secretariat of the Operational Committees, implement actions, drawing up an Annual Report, and, with the Accounting Officer, prepares accounts and financial reports. The manager for the North African Window appears to have been Deputy DG of NEAR, Maciej Popowski during the relevant time period. The managers can also approve actions below 10 million euros on a discretionary basis.1043EU Emergency Trust Fund for Africa, About, https://ec.europa.eu/trustfundforafrica/content/about_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153647/https://ec.europa.eu/trustfundforafrica/content/about_en]
The EUTF has two governing bodies, the Strategic Board and the Operational Committee.
“The Strategic Board sets the global strategy of the EUTF for Africa, meeting at least once per year. The Operational Committee adopts the actions to be implemented on the ground, and meets at separate sessions for each of the three geographical regions.”1044EU Emergency Trust Fund for Africa, About, https://ec.europa.eu/trustfundforafrica/content/about_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153647/https://ec.europa.eu/trustfundforafrica/content/about_en]
The Strategic Board and the Operational Committee are chaired by the Director General of DG DEVCO. This position was held by Stefano Manservisi during the relevant period. On 13 December 2016, representatives from DG NEAR, DG HOME, DG ECHO, the EEAS, EU donor countries, Switzerland, Norway, African partner countries and organizations like ECOWAS, the African Union and UEMOA were attending in Brussels the Second Board Meeting of the European Union Emergency Trust Fund for stability, in order to address the root causes of irregular migration and displaced persons in Africa.”1045EUTF, Minutes of the Second Board Meeting of the European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa (EUTF for Africa), 13/12/2016, https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627163643/https://trust-fund-for-africa.europa.eu/document/download/fb3c0a75-3e4a-4cd2-a102-1e77dcb06113_en?filename=Minutes%202nd%20Board%20meeting] According to Senior EU Official, DG DEVCO “knows how to manage the money” and the EEAS “gives political framing.”1046Interviewee I17 Given the EU’s leading role, both institutionally and financially, through the Commission, and through the Member States, the Fund cannot be considered to act as an independent third party.
(b) The Strategic Board
The EUTF’s Strategic Board reviews the priorities of the fund, provides guidelines to its structure, analyses the evolution of the needs, the emerging challenges, and inputs. It adjusts the thematic and geographical scope of the EUTF according to the perception of its members.1047European Emergency Trust Fund for Africa, Strategy, https://ec.europa.eu/trustfundforafrica/content/strategy_en, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155016/https://ec.europa.eu/trustfundforafrica/content/strategy_en]
DG DEVCO presides over the Board and receives support by the EEAS in its analysis and handling of the fund. Each Member State which donated more than 3 million euros is represented on the Board. Smaller donor States merely receive observer status. Observer status has also been granted, since 2017, to the European Parliament,1048European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 9. which still enjoyed no oversight over the functioning of the EUTF at the time, in spite of its theoretically budgetary power over any EU institution. The only politically accountable body, directly answerable to EU citizens, has therefore been confined to an observer role in a critical tool of influence of the European Union, and seen its prerogatives reduced in order to avoid any real control over the use of the funds it theoretically allocates.
The inaugural Board Meeting took place at the Valletta Summit, in November 2015, following its creation.1049European Emergency Trust Fund for Africa, European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa Board Meeting Minutes, 12/11/2015, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/minutes_1st_eutf_for_africa_board_meeting_0.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155210/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/minutes_1st_eutf_for_africa_board_meeting_0.pdf], p. 1. From very early on, the EUTF’s activities were heavily driven by the EEAS and DG DEVCO. Indeed, at the First Board Meeting, Christian Leffler, from the EEAS, introduced the Strategic orientation document for the Fund, before an introduction by Carla Montesi, from DG DEVCO, assigning tasks to Operational Committees.1050European Emergency Trust Fund for Africa, European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa Board Meeting Minutes, 12/11/2015, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/minutes_1st_eutf_for_africa_board_meeting_0.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155210/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/minutes_1st_eutf_for_africa_board_meeting_0.pdf], p. 2. Such steering later developed into de facto subordination, allowing the Commission, DG DEVCO and the EEAS to use the Fund as they wished.
As the formulation of policy and strategic orientation is controlled by the Strategic Board, it was repeatedly used for political motives. The Fund was frequently used to satisfy objectives of the EU’s migration Partnership Framework aiming to “fully integrate[s] migration in the European Union’s foreign policy.”1051European Commission, Migration Partnership Framework: A new approach to better manage migration, https://eeas.europa.eu/sites/eeas/files/factsheet_ec_format_migration_partnership_framework_update_2.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155348/https://eeas.europa.eu/sites/eeas/files/factsheet_ec_format_migration_partnership_framework_update_2.pdf] Given that the EU regularly negotiates informal agreements with third countries to achieve its migration policy,1052SLAGTER, J., “An ‘Informal’ Turn in the European Union’s Migrant Returns Policy towards Sub-Saharan Africa,” Migration Information Source Online Journal, 10/01/2019, https://www.migrationpolicy.org/article/eu-migrant-returns-policy-towards-sub-saharan-africa, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155513/https://www.migrationpolicy.org/article/eu-migrant-returns-policy-towards-sub-saharan-africa] the Fund was often used to ensure “full coherence between cooperation actions devoted to migration issues and the High-Level Dialogues” on migration.1053Council of the European Union, Joint Staff Working Document Taking forward the EU’s Comprehensive Approach to external conflicts and crises -Action Plan 2016-17, 19/07/2016, https://data.consilium.europa.eu/doc/document/ST-11408-2016-INIT/en/pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001155657/https://data.consilium.europa.eu/doc/document/ST-11408-2016-INIT/en/pdf], p. 5. Further emphasizing the EU’s influence, Justice and Home Affairs priorities, shaped by European Interior Ministers, increasingly guided the allocation of EUTF funds towards development aid and emergency interventions.1054OXFAM, Le Fonds fiduciaire de l’UE pour l’Afrique Tiraillés entre la politique d’aide et les politiques migratoires, 01/2020, https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924152942/https://www.oxfamfrance.org/wp-content/uploads/2020/01/Rapport-EUTF-Migration-FR-.pdf], p. 10.
Since its first version presented in 2015, the EUTF Strategic Orientation Document has never been revised.1055European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 13. It states that the Fund “serve[s] the objectives of the ongoing review of the European Neighborhood Policy” which itself was “expected to give a stronger focus on enhancing cooperation security issues,” submitting it to an EEAS 'primacy.1056European Commission, The European Union Emergency Trust Fund for Stability and Addressing Root Causes of Irregular Migration and Displaced Persons in Africa, Strategic Orientation Document, 15/02/2016 https://ec.europa.eu/international-partnerships/system/files/eu-emergency-trust-fund-revised-strategy-15022016_en.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001160126/https://ec.europa.eu/international-partnerships/system/files/eu-emergency-trust-fund-revised-strategy-15022016_en.pdf], pp. 31-32.
This did not negate other EU Commission bodies’ pressure on the institution in order to direct it to participate in its policies regarding the central Mediterranean route. As per the minutes of the EUTF Board Meeting of 30 June 2017:
“The Director General of DG NEAR, Mr. C. Danielsson reiterated that the Central Mediterranean route continues to be a source of great concern in terms of migratory pressure on Europe and that Libya continues to be the main country of departure to Italy. He referred to the Joint Communication on Central Mediterranean Route, Managing flows, Saving Lives which […] guided the focus of intervention of the North of Africa Window of the EUTF in the last six months including a comprehensive programme for Libya worth EUR 90 million.”1057EUTF, MINUTES OF THE THIRD BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 30/06/2017, https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164216/https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting], p. 1.
Danielsson further added that:
“following the Conclusions of the June European Council, work with Italy has started to develop a comprehensive intervention, worth approximately EUR 45 million, aiming to develop the capacity of the Libyan Coast Guards and to improve border management at the southern borders of the country.”1058EUTF, MINUTES OF THE THIRD BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 30/06/2017, https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164216/https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting], p. 1.
He confirmed that in regard to Libya, “a new program is under discussion with Italy.”1059EUTF, MINUTES OF THE THIRD BOARD MEETING OF THE EU EMERGENCY TRUST FUND FOR AFRICA (EUTF FOR AFRICA), 30/06/2017, https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting, retrieved on 27/06/2024 [https://web.archive.org/web/20240627164216/https://trust-fund-for-africa.europa.eu/document/download/8b8028af-4053-4b53-aef0-ee38529a410c_en?filename=Minutes%203rd%20Board%20meeting], p. 2.
This delineates both the control the Commission and the EEAS exerted over the EUTF’s strategic and operational development as well as its focus being centered around the EU’s efforts to deter migrants at all costs.
(c) Operational Committees
Three Operational Committees are responsible for the aforementioned “Windows”. The Operational Committees review, approve, and supervise the implementation of the actions financed by the EUTF. They approve annual reports and accounts for transmission to the Strategic Board, on which bases the latter adopts future programs.1060EU Emergency Trust Fund for Africa, About, https://ec.europa.eu/trustfundforafrica/content/about_en, retrieved on 24/09/2020 [https://web.archive.org/web/20200924153647/https://ec.europa.eu/trustfundforafrica/content/about_en]
DG DEVCO is responsible for oversight of the Horn of Africa and Sahel and Lake Chad Operational Committees, whilst DG NEAR is responsible for the North of Africa Operational Committee, placing all three Windows under the European Commission’s control.1061CASTILLEJO, C., “The European Union Trust Fund for Africa: a glimpse of the future for EU development cooperation,” 2016, Deutsches Institut für Entwicklungspolitik, https://www.econstor.eu/bitstream/10419/199485/1/die-dp-2016-22.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131243/https://www.econstor.eu/bitstream/10419/199485/1/die-dp-2016-22.pdf], p. 4. This separation can be understood given each of these Directorates-General’s subject-matters, with DG NEAR working closely with North of Africa countries in their capacity as transit states.
The “Operational Committees” of each “Window” selects project proposals from those submitted by potential “implementing partners” that correspond to the “Window’s priorities”, elaborated by the respective Operational Committees and approved by the Strategic Board. An “Action Fiche” is prepared by managers in consultation with EU delegations, and this Action Fiche is submitted to the Operational Committee for approval.1062European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 17. Action Fiche’s contain budget projections, background information, objectives of the action, as well as expected results, implementing partners and risks.[1]
Project Selection
The North of Africa and Sahel and Lake Chad Windows select projects by allowing potential partners to submit propositions. These are then reviewed by the manager, which in turns requests the Operational Committee’s approval.1063European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 17. para 27. As a consequence of this method, projects theoretically reflect the needs identified by implementing partners, rather than those identified at large by the EUTF and furthermore by the EU. Nonetheless, under such a bottom-up approach, only established partners can contribute, a system which reproduces and maintains the status quo and favors EU related “partners”. When projects are proposed and carried by organizations such as the International Center for Migration Policy Development, they are nothing more than further initiatives of States themselves.
The procedures lack overall transparency, as the North of Africa and Horn of Africa Windows do not use published assessment criteria.1064European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 17. para 29. Although the Sahel and Lake Chad Window does publish some, they were unable to show they actually used them. Such a lack of transparency has been raised at least once as an issue by Member States to different Operational Committee meeting sessions, to no avail.1065European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 18. Minutes of meetings of SLC Operational Committee of 14.1.2016 and 18.4.2016, as referenced in. The consequences and the objectives of this functioning, are copular. In a very euphemistic conclusion, the EU Court of Auditors has called the overall process “fast but not fully consistent and clear.”1066European Court of Auditors, Special Report European Union Emergency Trust Fund for Africa: Flexible but lacking focus, 2018, https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124035/https://www.eca.europa.eu/Lists/ECADocuments/SR18_32/SR_EUTF_AFRICA_EN.pdf], p. 17.
In practice, Operational Committees meetings are rarely the forum for discussions regarding projects and decisions, as they are mostly taken through informal talks prior to sessions.1067European Parliament, Oversight and Management of the EU Trust Funds Democratic Accountability Challenges and Promising Practices, 02/2018, http://aei.pitt.edu/93684/1/EUTrustFundsForEP.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006132846/http://aei.pitt.edu/93684/1/EUTrustFundsForEP.pdf], p. 28.
Tightening Control
In October 2016, the Commission created a Monitoring and Learning System (MLS) for the North of Africa region of the EUTF, in order to expand its control even further.1068European Emergency Trust Fund for Africa, Monitoring and Evaluating Framework in the North of Africa Window, https://ec.europa.eu/trustfundforafrica/content/monitoring-and-evaluation-framework-north-africa_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133935/https://ec.europa.eu/trustfundforafrica/content/monitoring-and-evaluation-framework-north-africa.pdf] According to the Monitoring report for the EUTF North of Africa:
“the main purpose of the EUTF North of Africa M&L Framework is to provide DG NEAR with a structure they can use to formulate, steer and monitor the progress of programmes and projects financed by the EUTF North of Africa and provide data that can support measurement of EUTF results in the North of Africa […]. All EUTF North of Africa projects implementers are requested to align their logical frameworks with the North of Africa M&L Framework […] and report on a quarterly basis to DG NEAR on project progress.”1069European Emergency Trust Fund for Africa, EU EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA North of Africa Window First Monitoring Report, 06/2019, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124159/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf], p. 13.
The European Commission thus worked with all “implementing partners” to ensure that their projects fitted its plans, in particular through DG NEAR. With the assistance of the same International Center for Migration Policy Development, DG NEAR defined the operational framework for the North of Africa Window, and “the Operational Framework was approved by the Operational Committee of the EUTF NOA on 18 December 2016.”1070European Emergency Trust Fund for Africa, EU EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA North of Africa Window First Monitoring Report, 06/2019, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124159/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf], p. 12.
The North of Africa Operational Committee adopted the Monitoring and Learning System at the end of 2017. In 2018, Implementing Projects began to align themselves with the Window’s strategic objectives and collect initial monitoring data in the field, allowing the Monitoring and Learning System to become fully operational.1071European Emergency Trust Fund for Africa, Monitoring and Evaluating Framework in the North of Africa Window, https://ec.europa.eu/trustfundforafrica/content/monitoring-and-evaluation-framework-north-africa_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133935/https://ec.europa.eu/trustfundforafrica/content/monitoring-and-evaluation-framework-north-africa.pdf]
(d) Research and Evidence Facilities
Operational Committees also rely on “Research and Evidence Facilities”, in charge of providing them with detailed analysis and policy recommendations, in our case to “fill in knowledge gaps about the causes and drivers of instability, including violent conflict, irregular migration, forced displacement at regional, national and local levels, capture lessons learned, generate evidence of impact, and feed this knowledge into operational, programming policy and political practice.”1072European Emergency Trust Fund for Africa, Research and Evidence Facility, https://ec.europa.eu/trustfundforafrica/region/horn-africa/regional/research-and-evidence-facility_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006132615/https://ec.europa.eu/trustfundforafrica/region/horn-africa/regional/research-and-evidence-facility_en] These operational features are important insofar as they demonstrate the exceptional degree of situational awareness and policy assessment provided to the EUTF decision-makers, which renders any argument of ignorance over the consequences of the criminal policies here discussed mute.
The Sahel and Lake Chad Committee along with North of Africa have both partnered with the International Center for Migration Policy Development and the Global Initiative against Transnational Organized Crime for these services.
The International Center for Migration Policy Development is an international governmental organization, comprised of 20 Member States, including 17 members of the EU and Turkey.1073International Centre for Migration Policy Development, About us, https://www.icmpd.org/about-us/, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131417/https://www.icmpd.org/about-us/] It is funded by its Member States as well as the European Commission among others. Its mission statement is “making migration and mobility of people orderly, safe and regular, including through the implementation of planned and well-managed migration policies.”1074International Centre for Migration Policy Development, About us, https://www.icmpd.org/about-us/, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131417/https://www.icmpd.org/about-us/] In Brussels, it acts as a lobby group at the European Parliament,1075Lobby Facts, International Centre for Migration Policy Development (ICMPD), 17/01/2020, https://lobbyfacts.eu/representative/ecce38ebf24c43fba9b068941c45f91d, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131544/https://lobbyfacts.eu/representative/ecce38ebf24c43fba9b068941c45f91d] and regularly supplies the Commission with reports and analyses.1076European Commission, ICMPD – International Centre for Migration Policy Development, https://ec.europa.eu/knowledge4policy/organisation/icmpd-international-centre-migration-policy-development_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131730/https://ec.europa.eu/knowledge4policy/organisation/icmpd-international-centre-migration-policy-development_en] It has worked closely with Frontex and Europol on migration matters.1077Commission of the European Communities, Communication from the Commission to the Council and the European Parliament The Global Approach to Migration one year on: Towards a comprehensive European migration policy, 30/11/2006 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52006DC0735&qid=1598542708611&from=EN, retrieved on 06/10/2020 [https://web.archive.org/web/20201006131932/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A52006DC0735&qid=1598542708611&from=EN], p. 18. These cooperations are long lasting and can be tracked back to 2006 at least. Moreover, it frequently cooperates with DG NEAR, proposing projects and receiving financial support to execute them.1078European Commission, Briefing on meeting with […] the International Centre for Migration Policy Development (ICMPD), & […] ICMPD […] Brussels, 14 January 2019, https://www.asktheeu.org/en/request/7953/response/27357/attach/5/Annexes%20GestDem%202020%202855.zip?cookie_passthrough=1, retrieved on 06/10/2020 [https://web.archive.org/web/20201006132440/https://www.asktheeu.org/en/request/7953/response/27357/attach/5/Annexes%20GestDem%202020%202855.zip?cookie_passthrough=1] [Annex 5] Under such circumstances, the conclusions it renders in its capacity as Research and Evidence Facility cannot be considered to be impartial or unbiased, given its membership and other involvement with EU bodies and agencies.
Under such circumstances, the EU, either directly through its agencies and bodies or indirectly through its Member States, has acute political and multi-dimensional control over the EUTF’s decisions. Not only does it control it formally, but it also influences it insidiously, as decisions based on politically loaded reports and project proposals can only reproduce this biased approach.
[1] An exemplary Action Fiche can be found here https://neighbourhood-enlargement.ec.europa.eu/document/download/bbf86e27-7052-418a-a9aa-8a2b89f3b00b_en?filename=dev-pillar_of_the_rdpp_in_noa.pdf.
IIThe EUTF and Libya
The North of Africa Window was awarded the following funds:
According to DG NEAR’s strategic plan for 2016 to 2020, the North of Africa Window was “focused [on] improving migration management in all its aspects.”1079European Commission, Strategic Plan 2016-2020 DG NEAR, 12/04/2016, https://ec.europa.eu/info/sites/info/files/strategic-plan-2016-2020-dg-near_april2016_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133647/https://ec.europa.eu/info/sites/info/files/strategic-plan-2016-2020-dg-near_april2016_en.pdf], p. 44. Per the 2019 management plan, the Window was now almost exclusively reoriented towards “the reinforcement of the capacities of authorities to manage migration flows, including through enhanced border surveillance.”1080European Commission, Management Plan 2019 DG NEAR, 19/12/2018, https://ec.europa.eu/info/sites/info/files/management-plan-near-2019_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133755/https://ec.europa.eu/info/sites/info/files/management-plan-near-2019_en.pdf], p. 5.
Similarly, the five “strategic themes” elaborated by the North of Africa window purport to concentrate on ‘improving’ migration governance and narrative.1081European Commission, Management Plan 2019 DG NEAR, 19/12/2018, https://ec.europa.eu/info/sites/info/files/management-plan-near-2019_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006133755/https://ec.europa.eu/info/sites/info/files/management-plan-near-2019_en.pdf], p. 5. This constitutes a fundamentally rhetorical and plainly false re-framing of the EU’s actual migration policy and appears in stark contrast with how the EU has itself vilified and portrayed “migrants” domestically. The aforementioned objective in fact serves the necessity for a well-regulated apparatus for the externalization of borders. Among all EUTF projects in the North of Africa, Libya received the largest number of projects (17) and over 48% (281.9 million euros) of the total funds committed (586.2 million euros).1082European Emergency Trust Fund for Africa, EU EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA North of Africa Window First Monitoring Report, 06/2019, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124159/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf], pp. 15-16.
EUTF projects in Libya emerge out of the objectives established in the Joint Communication “Managing flows, saving lives”1083European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] set up by High Representative Mogherini and the Commission,1084European Emergency Trust Fund for Africa, EU EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA North of Africa Window First Monitoring Report, 06/2019, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201001124159/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_noa_report_web_2019-10-11.pdf] and the Malta Declaration by the members of the European Council of 3 February 2017.1085European Council, Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 03/02/2017, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093845/https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/]
As noted above, Libya has hosted ten national projects of the EUTF, making it the biggest recipient of the North Africa Window both by number of projects and total funding.1086European Emergency Trust Fund for Africa, Regions and Countries, https://ec.europa.eu/trustfundforafrica/region_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006134425/https://ec.europa.eu/trustfundforafrica/region_en] Between 2014 and 2019, the EUTF mobilized 318 million euros of the total 338 million the EU allocated to migration-related projects in Libya.1087HRVP, SUCCINCT BRIEFING FOR Justice and Home Affairs Council, 07/02/2019, Brussels available at GestDem 2020/2855, https://www.asktheeu.org/en/request/7953/response/27357/attach/5/Annexes%20GestDem%202020%202855.zip?cookie_passthrough=1, retrieved on 06/10/2020 [https://web.archive.org/web/20201006132440/https://www.asktheeu.org/en/request/7953/response/27357/attach/5/Annexes%20GestDem%202020%202855.zip?cookie_passthrough=1] [Annex 6], p. 7. All of these projects were held under the objective of “improved migration management.”1088European Emergency Trust Fund for Africa, Libya, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006134905/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en]
These projects were officially framed as aiming to ‘protect’ «migrants», provide voluntary repatriation or humanitarian evacuations and support the national authorities “to foster their capacity to counter migrant smuggling and trafficking in human beings and a more efficient integrated border management.”1089European Emergency Trust Fund for Africa, Libya, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006134905/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en] Considered within the light of the overarching policies, this merely served as rhetoric cover for the EU’s true purpose in migration management. Under these false pretenses, the funds were entirely dedicated to ensuring that Libyan authorities could intercept, pushback, and detain migrants at all costs to prevent them from reaching European shores without the appearance of the EU’s direct implication in refoulement practices.
As Salah Marghani, Libya’s Minister of Justice from 2012 to 2014, put it, the goal of the program was to “make Libya the bad guy. Make Libya the disguise for their policies while the good humans of Europe say they are offering money to help make this hellish system safer.”1090URBINA, I., “The secretive Libyan prisons that keep migrants out of Europe,” The New Yorker, 06/12/2021, https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe, retrieved on 01/12/2021 [https://web.archive.org/web/20211201140850/https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe]
The EUTF North of Africa Window dedicated to Libya developed projects in three areas:
“(1) protection of vulnerable groups and those in need (134.7 million euros committed,
(2) community stabilisation (92 million euros committed), and
(3) security and border management (42.2 million and 45 million euros committed respectively).”1091European Emergency Trust Fund for Africa, Libya, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006134905/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya_en]
The EU pursued a policy of refoulement by proxy with the full knowledge of the systematic crimes ‘migrants’ face upon their return to Libya in Libyan detention camps. The EU orchestrated a policy of inaction and instrumentalization of the “concentration camps-like” conditions in these camps, rendering ‘voluntary deportation’ a farce. The projects the EUTF funded were not about improving these conditions but rather deterring ‘migrants’ by providing them two alternatives: death or deportation.
The objective of the harsh conditions was thus twofold: to deter others from attempting to seek protection in the EU and coerce detainees to return to their countries of origin, and at the same time to present EU-financed projects as intended to mitigate the suffering of ‘migrants’ and thus as an actor operating for their protection in the context of EU’s 2nd policy. Indeed, to instrumentalize EU’s 1st policy of killing by drowning in order to justify EU’s 2nd policy of capture and deportation of the survivors, the camps to which the deportees are sent to must be at minimum slightly ‘better’ than the death at sea ‘migrants’ avoided under EU’s 1st policy. The attempts to mitigate these at times conflicting ends further evidence the EU’s full awareness of the criminality of their policies and echo the Libyan Minister of Justice’s assertion that the EU attempted to maintain a supposed humanitarian reputation while systematically violating the rights of migrants and subjecting them to wide-spread abuse and death.
(a) National projects in Libya & capacity-building of the LYCG
As of 2020, there were ten EUTF projects in Libya, including projects that are key to the EU’s policy of externalization of border control and migration management to the Libyan authorities. Four of these projects are relevant to the crimes committed pursuant to the policies analyzed in the present Communication.
“Supporting protection and humanitarian repatriation and reintegration of vulnerable migrants in Libya”1092European Emergency Trust Fund for Africa, Supporting protection and humanitarian repatriation and reintegration of vulnerable migrants in Libya, 16/12/2016, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/supporting-protection-and-humanitarian-repatriation-and-reintegration_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155210/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/supporting-protection-and-humanitarian-repatriation-and-reintegration_en]
This project was proposed in 2017 and was included within the framework of existing cooperation between the EU, the Libyan authorities and other international organizations such as the Seahorse program, EUBAM, and EUNAVFOR Med Operation Sophia and received an EU contribution of 20 million euros.1093European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, 16/12/2016, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155335/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf], p. 7.
Its objectives included:
“to improve reception of migrants upon disembarkation; to ensure minimum decent living standards in targeted detention centers; to improve and scale up humanitarian repatriation and reintegration; to strengthen migration data and communication on migration flows, routes and trends; to enhance protection and timely access to basic services for vulnerable migrants most affected by insecurity or with specific needs, both in detention centers and in communities.”1094European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, 16/12/2016, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155335/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf], p. 2.
The Action Fiche for this project further elaborated on the ways in which these objectives were to be attained. Amongst strategies, and unlike its title suggested, the project moved firstly and primarily to better equip and train the Libyan coastguards with “protective equipment” for their personnel involved in search and rescue operation (“Result Area 1”), and secondarily “improvements” to be made at reception facilities or detention centers (“Result Area 2”). To finalize its mission, this project also moved to support and enhance return and repatriation “possibilities” for “migrants”.1095European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, 16/12/2016, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155335/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf], pp. 10-11.
According to project documents, the Operational Committee was already aware of the “abuse and exploitation” reported at reception centers at points of disembarkation and exile detention centers.1096European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, 16/12/2016, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155335/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/action-document-libya-action-fiche-20161216_en.pdf], pp. 1, 4, 6. In other words, the EUTF conclusively framed the interception of «migrants» in distress at sea and subsequent internment in detention camps known for severe crimes against humanity as a means to improve the support and protection of vulnerable “migrants”.
Managing mixed migration flows in Libya through expanding protection space and supporting local socioeconomic development
This project[[ECOM 241}} was to be fully integrated into other EU actions including the Seahorse Project and Operation Sophia and funded with 90 million euros. Regarding the Libyan government and coastguard, the project announced that “resilience will be increased through capacity building, training, and assistance with infrastructure improvements.”1097European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, “Managing mixed migration flows in Libya through expanding protection space and supporting local socio-economic development”(T05-EUTF-NOA-LY-03), https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155645/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf], pp. 1, 9, 20. The report further acknowledged that “migrants are not always screened for protection or human rights violations and do not receive appropriate treatment or referrals.”1098European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, “Managing mixed migration flows in Libya through expanding protection space and supporting local socio-economic development”(T05-EUTF-NOA-LY-03), https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155645/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf], p. 5.
The plan had initially identified a “medium” level risk of human rights violations in the areas related to the action’s field of intervention. It furthermore recognized that the Libyan authorities were “main stakeholders”, and that “strengthening their capacities at national, and especially at local level, will ensure sustainability of the activities, as well as a durable impact through supporting an improved efficiency of the governance system, compliant with human rights standards.”1099European Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, “Managing mixed migration flows in Libya through expanding protection space and supporting local socio-economic development”(T05-EUTF-NOA-LY-03), https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155645/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-03.pdf], p. 21.
The plan did not further elaborate on the nature or specifics of the “human rights standards” or the concrete actions taken to ensure their respect. Such disregard for the conditions of detention of “migrants”, framed in a managerial narrative related to “improvement” and “strengthening” of local “capacities” is characteristic of the EU’s one-sided agenda. This agenda aims exclusively at the externalization of migration management, whatever the human costs, dissimulated through the diffraction of its programs which in turn create opacity over the systematic nature of its policies, and a systematic “positive” discourse. Although clearly identified in the Action Fiche, and therefore known by the Operational Committee and the Strategic Board, the criminal conditions «migrants» were continuously exposed to because of these programs were never addressed.
Support to Integrated border and migration management in Libya – First phase
This project1100Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, 27/07/2017, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006155823/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en] acted as a complementary project to EUNAVFOR Med Operation Sophia’s training plans for the Libyan coastguard. To this end, the project provided support to the Italian government in their assistance to and training of the Libyan General Administration for Coastal Security by the Italian Ministry of Interior and the Libyan coastguard and Port Security by the Italian Ministry of Defense. Outlined actions included “training and equipment: repair of existing vessels + maintenance, supply of communication and rescue equipment, rubber boats and vehicles” as well as “setting up […] basic operational rooms in a joint building in Tripoli: interagency National Coordination Centre - NCC (MoI) and Maritime Rescue Coordination Centre - MRCC (MoD).”1101European Emergency Trust Fund for Africa, Action Fiche of the EU Trust Fund to be used for the decision of the Operational Committee, 10/07/2020, https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf, retrieved 2/04/2025, p. 3 [https://web.archive.org/web/20250314180709/https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf], p. 3.
The training and equipment objectives of these projects were pursued in order to stabilize and sustain funding of activities started under the auspices of Operation Sophia. The project furthermore resolved to call upon the Seahorse Program for further financial support.
Such a project is an example of the political influence and control of the EU over the Fund as it responded directly to a European Council call stating that “training and equipping the Libyan coastguard is a key component of the EU approach and should be speeded up” and that “cooperation […] shall be reinforced in order to stem the migratory pressure on Libya’s land borders.”1102European Council, European Council meeting (22 and 23 June 2017) – Conclusions, 23/06/2017, https://www.consilium.europa.eu/media/23985/22-23-euco-final-conclusions.pdf, retrieved on 06/10/2020, p. 10 [https://web.archive.org/web/20201006160057/https://www.consilium.europa.eu/media/23985/22-23-euco-final-conclusions.pdf], p. 10.
The main objectives of this program included:
“1) “[to] enhance operational capacity of the competent Libyan authorities in maritime surveillance, tackling irregular border crossings, including the strengthening of SAR operations and related coast guard tasks;
2) [to] set up basic facilities in order to enable the Libyan guards to better organize their SAR, border surveillance and control operations;
3) [to] assist the concerned Libyan authorities in defining and declaring a Libyan SAR Region with adequate SAR Standard Operation Procedures, including finalising the studies for fully fledged operational rooms;
4) [to] develop operational capacity of competent Libyan authorities in land border surveillance and control in the desert, focusing on the sections of southern borders most affected by illegal crossings” (emphasis added).1103European Emergency Trust Fund for Africa, Action Fiche of the EU Trust Fund to be used for the decision of the Operational Committee, 10/07/2020, https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf, retrieved 2/04/2025, p. 3 [https://web.archive.org/web/20250314180709/https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf], p. 10.
Here too ‘rescue’ must be replaced with ‘capture’ and placed within the context of EU policies, that is, to first render the sea more lethal as a deterrent, then to task the LYCG with the interception of the survivors and subsequent victimization. Within the auspices of the project, the Italian Coast Guard not only trained and equipped the Libyan coastguards themselves but also cooperated with Operation Sophia and Project SEAHORSE.1104European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 5.
The Italian-Libyan Committee tasked with implementing the countries’ Memorandum of Understanding was perfectly aware of the direct risks associated with training the Libyan coastguards as they recognized that
“the Libyan Coast Guards[…] lack a solid chain of command, which, for instance, raises concerns over the proper use of the equipment to be provided under the project. There are also concerns of possible collusion between persons among the action beneficiaries and smuggling and trafficking activities.”1105European Emergency Trust Fund for Africa, Action Fiche of the EU Trust Fund to be used for the decision of the Operational Committee, 10/07/2020, https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf, retrieved 2/04/2025, p. 3 [https://web.archive.org/web/20250314180709/https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf], p. 14.
This assessment stopped neither Italy nor the other EU entities involved in the technical implementation of the project from executing it. According to the Action Fiche, the relevant stakeholders in this project with whom “close cooperation and permanent operational links [were] established]” included EUBAM Libya, FRONTEX, EUNAVFORMED Sophia, SEAHORSE MED and “any EU Member States concerned.”1106European Emergency Trust Fund for Africa, Action Fiche of the EU Trust Fund to be used for the decision of the Operational Committee, 10/07/2020, https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf, retrieved 2/04/2025, p. 3 [https://web.archive.org/web/20250314180709/https://trust-fund-for-africa.europa.eu/document/download/0a045dcb-9f18-4276-b8a2-1f3a4e863c2d_en?filename=t05-eutf-noa-ly-04_modified.pdf], pp. 7, 17. This coordination was overseen by the Italian Ministry of the Interior, DG NEAR, the EU Delegation to Libya, and the Italian Embassy in Tripoli.1107European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 6.
According to the 2018 Strategic Review of Operation Sophia, this project was the result of a partnership between DG NEAR and Italy to “support to integrated border and migration management.”1108Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018 https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 16/04/2021 [https://web.archive.org/web/20210109100748/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p 5.
This Strategic review of Sophia recommended to:
“plan the deployment of personnel in Tripoli in synergy with ongoing or future activities in support of the Libyan coastguards overall. Such a presence ashore would have a complementary role with the planned establishment under the EUTF project of a Libyan NCC and MRCC could constitute a relevant way forward.”1109Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018 https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 16/04/2021 [https://web.archive.org/web/20210109100748/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 35.
What was required for Sophia was therefore to ensure that it contributed, in parallel and in synchronization with other ongoing training projects, to the creation of a “full[y] operational Libyan MRCC and NCC in 2020 under the EUTF project implemented by Italy.”1110Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018 https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 16/04/2021 [https://web.archive.org/web/20210109100748/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 43.
Support to Integrated border and migration management in Libya - Second phase
This project1111European Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya - Second phase, 13/12/2018, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-second-phase_en, retrieved on 06/10/2020 [https://web.archive.org/web/20201006160318/https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-second-phase_en] was adopted by the Committee on 13 December 2018, as a second phase to the 2017 project bearing the same name and was funded by an additional 16.8 million euros.
In this phase, the project continued to “supply new SAR vessels and an accompanying maintenance and training programme” as well as working on “the development of a mobile MRCC to support SAR operations.”1112European Emergency Trust Fund for Africa, Action Document – The European Union Emergency Trust Fund for Stability and Addressing the Root Causes of Irregular Migration and Displaced Persons in Africa, 13/12/2018, https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf, retrieved on 02/05/2025 [https://web.archive.org/web/20250402164018/https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf], p. 4.
Beyond the immediate supply of resources to the Libyan coastguards, the project also aimed at ensuring proper coordination and cooperation between them and General Administration for Coastal Security through the formulation of procedures and codes of conducts. Thus, the EU was directly involved in the forming of a working and fully-fledged authority for the control of Libyan coasts. Not only did it provide equipment and specific training to coastguards, but it helped ensure the coastguard itself was effective.1113European Emergency Trust Fund for Africa, Action Document – The European Union Emergency Trust Fund for Stability and Addressing the Root Causes of Irregular Migration and Displaced Persons in Africa, 13/12/2018, https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf, retrieved on 02/05/2025 [https://web.archive.org/web/20250402164018/https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf], p. 7. As the Committee had already observed, the Libyan authorities lacked a proper chain of command and functional organization. Through this project, the EU could directly “alleviate” such an issue and reinforce the efficiency of a system that would expose its “beneficiaries” – ‘migrants’ – to the systematic commission of crimes against humanity.
In conducting this project, the report listed the risk of “damage [to] the narrative and reputation of the EU,” despite no mention of any risk to «migrants»’ living conditions. It further developed this risk stating: “active intervention in the field of [Integrated Border Management] will lead to reputational risks of the EU.”1114European Emergency Trust Fund for Africa, Action Document – The European Union Emergency Trust Fund for Stability and Addressing the Root Causes of Irregular Migration and Displaced Persons in Africa, 13/12/2018, https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf, retrieved on 02/05/2025 [https://web.archive.org/web/20250402164018/https://trust-fund-for-africa.europa.eu/document/download/6f72cd67-ff9f-482a-a346-171427a8a966_en?filename=t05-eutf-noa-ly-07.pdf], p. 16. This emphasizes that the EU was fully aware of the dubious legality of its project and principally concerned with its reputation rather than the crimes against humanity migrants were subjected to through its actions.
NGOs have since made complaints about the violation of human rights standards in this project. A complaint to the European Court of Auditors published in 2020 shows that any human rights concern raised before the second phase of the project was adopted was systematically dismissed.1115Global Legal Action Network (GLAN), Association for Juridical Studies on Immigration (ASGI), and Italian Recreational and Cultural Association (ARCI), Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ Programme, April 2020, https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 06/10/2020 [https://web.archive.org/web/20201006135742/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 13. This is consistent with EU and Member State bodies and officials planning and executing these criminal policies despite being aware of or themselves stating the severity of the situation. These repeated incidents and lack of reversal of course prove the intent behind the EU’s policy of effectively conducting refoulement by proxy.
EKey individuals
Suspects
-
Andreea Niculiu>
2016–Present
European CommissionPolicy Advisor, DG HOME
-
Ben Smulders>
2014–2019
European CommissionHead of Cabinet of Timmermans
-
Carla Montesi>
2014–2018
European CommissionDirector of Western and Central Africa, DG DEVCO
-
Cecilia Malmström>
2010–2014
European CommissionCommissioner for Migration & Home Affairs
-
Christian Danielsson>
2013–2020
European CommissionDirector-General for NEAR
-
Christine Grau>
2016–2019
European CommissionHead of Inter-institutional Relations – DG HOME
2019–2023
European External Action Service (EEAS)Head of Division for Migration and Human Security
-
Christos Stylianides>
2014–2019
European CommissionCommissioner for Humanitarian Aid & Crisis Management
-
Dana Spinant>
2015–2017
European CommissionHead of Unit C.1 for Irregular Migration & Return – DG HOME
-
Dimitris Avramopoulos>
2014–2019
European CommissionCommissioner for Migration & Home Affairs
-
Fabrizia Panzetti>
2016–2018
European CommissionHead of Cabinet of Mogherini
-
Frans Timmermans>
2014–2019
European CommissionVice President of the European Commission
-
Federica Mogherini>
2014–2019
European CommissionHigh Representative of EU Foreign Affairs and Security Policy
-
Johannes Hahn>
2014–2019
EU Commissioner for Enlargement and European Neighbourhood Policy
-
Lars Henrik Nielsen>
2014–2016
European CommissionRelations with Frontex - DG HOME
-
Laurent Muschel>
2013–2018
European CommissionDirector for Migration and Protection in DG HOME
-
Maciej Popowski>
2016–2020
European CommissionDeputy Director DG NEAR
-
Martin Schieffer>
2016–2019
European CommissionChief of Unit C Migration and Protection – DG HOME
-
Martin Selmayr>
-
Matthias Ruete>
2014–2019
European CommissionDirector General for DG HOME
-
Neven Mimica>
2014–2019
European CommissionCommissioner for Cooperation and Development
-
Paraskevi Michou>
2018–2022
European CommissionDirector General for HOME
-
Simon Mordue>
2016–2019
European CommissionDeputy Director-General – DG HOME
-
Stephano Manservisi>
2014–2016
European External Action Service (EEAS)Head of Cabinet – Mogherini
2016–2019
European CommissionDirector-General – DG DEVCO
Involved
-
Androulla Kaminara>
07/2016–2019
European CommissionDirector for Africa, Asia, Latin America, Carribean & Pacific at DG ECHO
-
Catherine Ashton>
2009–11/2014
European CommissionCouncil of the European UnionEuropean External Action Service (EEAS)High Repersentative of the Union for Foreign Affairs , chair of the Foreign affairs council meetings§
-
Christophe Goussot>
2014–2015
European External Action Service (EEAS)"International Relations Specialist – CSDP partnership.
2016–2019
European External Action Service (EEAS)CMPD Strategic Planner / Maritime Operations
2019–2021
European External Action Service (EEAS)Migration Specialist
2021–
European External Action Service (EEAS)Senior Analyst-International Relations Officer Libya
-
Christos Komninos>
07/2018–unclear
European CommissionHead of legal affairs DG NEAR
-
Gerardo Fuertes>
12/2017–2025
European External Action Service (EEAS)Head of EUBAM Libya
-
Hervé Delphin>
2014–2016
European CommissionHead of European Neighborhood, Middle East, Central and South Western Asia unit - DG ECHO
-
Kristalina Georgieva>
2010–10/2014
European CommissionCommissioner for Humanitarian Aid & Crisis Management
10/2014–2018
European CommissionCommissioner for Intl Cooperation and Development; Commissioner for Budget
-
Lotte Knudsen>
2014–2016
European CommissionDirector for Human Development and Migration DG Devco
2016–2021
European External Action Service (EEAS)Managing Director in charge of global and multilateral issues and human rights
-
Marc Giacomini>
02/2017–
European External Action Service (EEAS)Deputy Managing Director for human rights, global and multilateral affairs
-
Michael Karnitschnig>
11/2014–07/2019
European CommissionHead of Hahn's Cabinet
-
Michael Koehler>
2013–12/2014
European CommissionDirector "Neighborhood" at DG DEVCO
01/2015–07/2019
European CommissionDirector “Neighborhood South“ at DG NEAR
-
Nataliya Apostolova>
2013–2016
European CommissionHead of Delegation of the EU Representation to Libya
-
Patrice Lenormand>
2016 – end date unclear
European CommissionHead of North Africa unit - DG ECHO
-
Stafeno Grassi>
2018–2019
ItalyHead of Mogherini's cabinet
-
Andris Piebalgs>
2010–10/2014
European CommissionCommissioner for Development
-
Ángel Losada Fernández>
02/2017 – end date unclear
SpainEuropean External Action Service (EEAS)EU Speical Representative for the Sahel
-
Anna Strzaska>
2018 – until at least 2021
European External Action Service (EEAS)Head of Divisions for the European Neighborhood Strategy and Instruments
-
Belinda Pyke>
2015–2017
European CommissionDirector fro Migration, Mobility & Innovation at DG Home
-
Bettina Muscheidt>
2016–2020
European CommissionHead of Delegation of the EU Representation to Libya
-
Brigitte Markussen>
06/2017 – until at least June 2020
European External Action Service (EEAS)Deputy Managing Director Directorate for Africa
-
Claus Sorensen>
2011–08/2015
European CommissionDirector-General DG ECHO
-
Diane Schmitt>
2014–2019
European CommissionHead of Avramopoulos cabinet
-
Fernando Frutuoso de Melo>
2013–03/2016
European CommissionDirector-General DG DEVCO
-
Emma Udwin>
2014–2019
European CommissionDeputy Head of cabinet of Commissionner Hahn
-
Gerhard Schumann-Hitzler>
2014–2019
European CommissionRegional cooperation DG NEAR (exact position unclear)
-
Jacques Fradin>
2010–2022
European External Action Service (EEAS)Head of Division for Integrated Strategic Planning for CSDP and Stabilization
-
Jean Pierre Van Aubel>
2016–2020
European External Action Service (EEAS)Council of the European UnionChair for the Political-Military Group of the General Secretariat of the Council
2020–
European External Action Service (EEAS)Senior Defence Expert
-
José Sabadell>
2020–2023
European CommissionEuropean External Action Service (EEAS)Head of Delegation of the EU Representation to Libya
-
Kari Loukkaanhuhta>
2013–04/2017
European External Action Service (EEAS)Policy Officer/Strategic Planner in Integrated Strategic Planning Division of EEAS’ CMPD
01/2019–
FrontexHead of Operational Planning and Evaluation Frontex
-
Luigi Soreca>
2015
European CommissionDirector for Security - DG Home
-
Nicolas Stoetzel>
2013–2018
European CommissionActing head of legal affairs at DG DEVCO
-
Olivier Onidi>
05/2016–11/2016
European CommissionDeputy-Director for Migration at DG HOME
12/2016–2021
European CommissionDeputy Director-General for Security at DG HOME
-
Reinhard Priebe>
2014–2015
European CommissionDirector of Internal Security at DG Home
-
Stefan Füle>
2010–11/2014
European CommissionCommissioner for Enlargement and European Neighbourhood Policy
-
Ryan Stephen>
2012–2019
European CommissionDeputy head of asylum policy DG HOME
2019 – end date unclear
European CommissionHead of legal affairs DG HOME
-
Susanne Mallaun>
2016
European CommissionHead of North Africa unit - DG ECHO
-
Vincenzo Tagliafferi>
08/2016–2021
ItalyEuropean External Action Service (EEAS)Head of EUBAM Libya
Related
- 513European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Agenda On Migration, 13/05/2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf, retrieved on 29/09/2020 [http://web.archive.org/web/20200929122619/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf], p. 3.
- 514Council of the European Union, The role of the Council in international agreements, 09/11/2017, https://www.consilium.europa.eu/en/council-eu/international-agreements/, retrieved on 24/09/2020 [https://web.archive.org/web/20200924122103/https://www.consilium.europa.eu/en/council-eu/international-agreements/]
- 515Ibid.
- 516Ibid.
- 517Ibid.
IV
Frontex
AExecutive Summary
The European Border and Coast Guard Agency (Frontex) was one of the principal architects and implementing bodies of the criminal policies analyzed in the previous and current Communications. The expansion of its mandate and the dramatic increase in its budget enabled the EU to orchestrate the death, deportation and abuse of more than 175,000 members of the targeted group (‘migrants’) in the past decade.
The influence of Frontex’s Executive Director, Fundamental Rights Officer and Management Board was reinforced by mid-level agents such as the staff members of the Cabinet of the Executive Director, the Operational Response Division, the International Cooperation Unit and the Risk Analysis Unit. Liability can further be extended to the level of Operation Response Managers and Operational Plan drafters.
Mare Nostrum was perceived by Frontex officials as a pull factor, and this (mis)perception (mis)guided the risk and operational analysis of Joint Operation Triton. For example, in the name of “securing” EU borders, the Agency decided not to replace the Italian ships in the area where most of the shipwrecks occurred, despite the lethal consequences of this decision.
This kind of decision-making was part of a broader strategy to refrain from searching and rescuing members of the targeted group in order to avoid their subsequent disembarkation in Europe. This strategy is both a consequence and circumvention of the ECtHR Hirsi judgement.
Because Hirsi declared Libya as unsafe, and since the duty to rescue is intertwined with the duty to safely disembark rescuees, the underlying rationale of JO Triton was to avoid rescue of the targeted group altogether. Similarly, because direct refoulement to Libya was unlawful, Frontex played a key role in EU’s 2nd policy of indirect refoulement via the reconstruction of and the contracting with the consortium of militias known as the ‘Libyan Coast Guard’ (LYCG).
Frontex trained the LYCG and exchanged information under the European Coastguard Cooperation Network (the former Seahorse Mediterranean Network) and the Africa-Frontex Intelligence Community. Frontex was involved in the establishment of JRCC Tripoli and engaged with EUBAM and the new EU4Border Security project. After in 2017 Frontex decided to switch from maritime to aerial surveillance of the Central Mediterranean, the information collected by its aircrafts and drones has been shared with JRCC Tripoli and used to facilitate the capture and transfer of those among the targeted group who survived the distress at sea.
In parallel, the Executive Director of Frontex was one of the first European officials to accuse NGOs of collusion with human traffickers, setting the scene for the criminalization of their operation by EU Member States. These attacks advanced an anti-migratory narrative by dehumanizing the targeted population and normalizing the crimes committed against them.
Frontex has been progressively transformed from a secondary agency fulfilling coordination and operational tasks to a central institution in the EU, and the most funded one. As Frontex was growing in power, budget and staff, its influence on agenda and policy setting increased exponentially. One of the vectors of this influence became its informational production.
Issued by a law enforcement agency appearing to be neutral, Frontex’s Risk Analysis and other reports have become an influential tool to drive migratory policies towards criminal patterns. The rationalized discourse used in these reports to factually distort the figures of migrant entries and legally to misclassify them as ‘illegal’.
Accordingly, these reports were instrumental in legitimizing the criminal practices of the agency, the allocation of more resources to maintain and expand them, and the reliance of other EU institutions and governments on their claims that migrant arrivals threaten EU security. In both their public and confidential versions, these reports instrumentalized the legal regulation over the movement of the most vulnerable populations to advance certain political ends.
In parallel to its implication in criminal policies, the agency inaugurated a novel confidentiality policy, and a structural opacity over the reality of its functioning progressively became a crucial part of the agency’s daily operation and consistent expansion.
Since 2019 these trends only intensified. Resources, influence, staff and prerogatives have continued to expand. The creation of a European border guard, a plan coming from Frontex itself and notably its former director Fabrice Leggeri, is the cornerstone of this process, as well as the envisioned expansion of Frontex operation to third countries, specifically North African ones, including Libya.
BOrganizational Structure
IMandate
Until 2016, Frontex’s full title was “the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.” Under the EU Regulation governing its operation at the time, the agency was in charge of coordinating and assisting Member States with border control, over which the Member States retained full competence. Besides technical expertise, the agency was further capable of “initiat[ing] and carry[ing] out joint operations and pilot projects in cooperation with Member States concerned and in agreement with the host Member States” which underwent a prior risk analysis.1116The European Parliament and The Council of The European Union, Regulation (EU) No 1168/2011 of the European Parliament and of The Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 22/11/2011, https://eur-lex.europa.eu/eli/reg/2011/1168/oj, retrieved on 07/10/2020 [https://web.archive.org/web/20201007073318/https://eur-lex.europa.eu/eli/reg/2011/1168/oj] article 1(3).
In 2015, the Commission discussed the opportunity to conduct a feasibility study to establish a European border guard unit.1117Interviewee I10 This was accompanied by an overall evaluation of Frontex by its services, on the basis of which Ilkka Laitinien, who had served as the first Executive Director of Frontex from 2005 until his departure in October 2014 and who at the time was a Management Board Member, initiated a conference in October 2015, with all Member States, EU institutions and international organizations involved in border management.1118Interviewee I10 Three elements were officially put on the agenda and discussed: 1) the future of the EU in [border] policy matters, 2) capacity building and 3) strategic matters.1119Interviewee I10 A report, titled “Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union,”1120UNYSIS, Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union ESBG, 16/06/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007073717/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf] identified the main problems in need of development.1121Interviewee I10 It was merged with a Frontex feasibility study by the Management Board of Frontex soon after and considered as guidelines for the agency.1122Interviewee I10 The main focus were the strategic level of border management, integration and coordination.1123Interviewee I10 On the basis of this merged report, Leggeri’s Cabinet, in collaboration with the Chair of the Management Board, subsequently developed a so-called integrated border management “concept” for the 2016 regulation.1124Interviewee I10 This “concept” was first developed in 2006 by the Justice and Home Affairs Council of the EU. Its definition “included coordination and coherence (same standards on border surveillance, border checks, and risk analysis), inter-agency cooperation (to better combat cross-border crime and illegal immigration) and international cooperation (cooperation with both neighboring and third countries).”1125UNYSIS, Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union ESBG, 16/06/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007073717/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf], p. 13.
This concept was later used as a basis for the criminal policies discussed here, as it was translated into Frontex’s new regulation which vastly expanded its law enforcement powers.1126Interviewee I10 It added a reserve of staff - the “rapid reaction pool” - gave the agency the prerogative to conduct vulnerability assessments of Member States, a mandate to initiate joint surveillance operations, the ability to conduct interventions if Member States failed to take action or if those were insufficient, but also the capacity to work in neighboring third countries and to cooperate with other EU agencies.1127Frontex, Frontex, the European Border and Coast Guard Agency, after one year, 06/10/2017, https://frontex.europa.eu/media-centre/news-release/frontex-the-european-border-and-coast-guard-agency-after-one-year-BJMHvS, retrieved on 07/10/2020 [https://web.archive.org/web/20201007074606/https://frontex.europa.eu/media-centre/news-release/frontex-the-european-border-and-coast-guard-agency-after-one-year-BJMHvS]
The staff increased from an about 366 in 20161128Frontex, Frontex, the European Border and Coast Guard Agency, after one year, 06/10/2017, https://frontex.europa.eu/media-centre/news-release/frontex-the-european-border-and-coast-guard-agency-after-one-year-BJMHvS, retrieved on 07/10/2020 [https://web.archive.org/web/20201007074606/https://frontex.europa.eu/media-centre/news-release/frontex-the-european-border-and-coast-guard-agency-after-one-year-BJMHvS] to 600 in 2018,1129Frontex, Frontex marks two years as the European Border and Coast Guard Agency, 06/10/2018, https://frontex.europa.eu/media-centre/news-release/frontex-marks-two-years-as-the-european-border-and-coast-guard-agency-ECWley, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075013/https://frontex.europa.eu/media-centre/news-release/frontex-marks-two-years-as-the-european-border-and-coast-guard-agency-ECWley] and the above parameters were incorporated in the 2016 and later 2019 framework regulations.1130Interviewee I10 In charge of declaring the scope of its own missions, Frontex also acquired an increased capacity to acquire its own land assets and aerial vessels, providing it with a strong basis for operational effectiveness.1131The European Parliament and The Council of The European Union, Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC,16/09/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.251.01.0001.01.ENG&toc=OJ:L:2016:251:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007074910/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2016.251.01.0001.01.ENG&toc=OJ%3AL%3A2016%3A251%3ATOC]
The 2019 Regulation further expanded Frontex’s mandate,1132The European Parliament and The Council of The European Union, Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, 14/11/2019, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1896&from=EN, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075413/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A32019R1896&from=EN] 1133Frontex, Legal Basis, https://frontex.europa.eu/about-frontex/legal-basis/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075623/https://frontex.europa.eu/about-frontex/legal-basis/] making the agency capable of adding a standing corps of 10,000 operational staff (by 2027), establishing “antenna offices” in host Member States and third countries, and having the European Border Surveillance system (EUROSUR) under its authority.1134The European Parliament and The Council of The European Union, Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, 14/11/2019, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1896&from=EN, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075413/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A32019R1896&from=EN] articles 5(2), 18 & 60 .
Initially, the agency’s main task was to “provide technical and operational assistance to Member States through joint operations and rapid border interventions,” and support search and rescue operations.1135Frontex, Roles & Responsibilities, https://frontex.europa.eu/operations/roles-responsibilities/, retrieved on 07/10/2020 [https://web.archive.org/web/20200812014634/https://frontex.europa.eu/operations/roles-responsibilities/] Frontex indicated that in 2018 and 2019 it conducted 56 and 77 SAR operations, respectively, but these figures cover all Frontex activities and are not specific to the Central Mediterranean Route.
Frontex became akin to a real law enforcement agency circa 2016,1136Interviewee I10 and its collaboration was not limited to the Member States. Frontex coordinates and cooperates “with other EU partners such as European agencies Europol, European Asylum Support Office (EASO), Eurojust, Fundamental Rights Agency (FRA), EU-Lisa, European Maritime Agency (EMSA), European Fisheries Control Agency (EFCA), the European Police College (CEPOL) and many others.”1137Frontex, EU Partners, https://frontex.europa.eu/partners/eu-partners/eu-agencies/e retrieved on 07/10/2020 [https://web.archive.org/web/20201007080509/https://frontex.europa.eu/partners/eu-partners/eu-agencies/e] EMSA and Frontex, in particular, share data, location services and an intense relationship focusing on Search and Rescue delegation.1138Interviewee I68
Specifically, Frontex shapes the Commission policies by “providing its technical expertise” through “input at the consultation stage of legislative proposals, or regular attendance to Commission-run expert groups and networks (such as the European Network on Migration).”1139Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/] This engagement is expanded by the Commission’s ability to “delegate relevant powers to Frontex when it implements border security related parts of the Framework Programme for Research and Innovation.”1140Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/]
Fig. 1 Organigram, Frontex, September 2018 1141Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/]
IIStructure
The Commission supervises Frontex’ implementation of EU treaties and legislation,1142Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/] and Frontex supports the Commission’s policies in the area of border management by providing technical expertise.1143Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/] As such, the agency is placed under the supervision of the Director for Migration and Protection at DG Home (Matthias Reute 2014 – 2017 / Paraskevi Michou 2017 – 2019). DG Home presents itself as a “quality control body” with regards to Frontex.1144Interviewee I10 At the “political policy level,” it “[coordinates] all actions of Frontex.”1145Interviewee I10 The unit in charge of Frontex within DG Home is “C2, Border Management and Schengen”. This unit was first headed by Lars Henrik Nielsen (2014 – 2016)1146European Union, 2014 European Union Directory, https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea, retrieved on 07/10/2020 [https://web.archive.org/web/20201007080813/https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea], pp. 297, 308. and then by Andreea Niculiu (2016 – present).1147Interviewee I10
DG Home agents oversee all the Frontex dossiers,1148Interviewee I10 interact with Frontex agents during Management Boards meetings and are involved in Frontex’s relationship with third countries, financial aspects and general oversight.1149Interviewee I68 The Commission is responsible to authorize “proposed Frontex working arrangements with EU or non-EU… countries.”1150Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/] On the basis of a Commission proposal, the Council may adopt decisions towards Member States which require them “to cooperate with the agency in the implementation of measures to mitigate risks at the external borders.”1151Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/] Expanding its oversight functions, the Commission also oversees regular “independent external evaluations” of Frontex on the basis of which the Commission can decide to change the agency’s mandate.1152Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/]
DG Home also receives regular implementation reports by Frontex.1153Interviewee I68 However, DG Home takes on a more proactive role when it comes to more difficult matters such as operational issues. One source suggested that Frontex’ technology and surveillance initiatives might all have been instigated by DG Home.1154Interviewee I68 The two institutions regularly correspond and work closely with each other, in writing and through daily contact.1155Interviewee I10
The agency itself is hierarchically composed of an Executive Director, a Deputy Executive Director and “five Divisions, a Cabinet, Offices (Media and Public Relations; Inspection and Control; Data Protection; Accounting) and Task Forces (ETIAS and Interoperability; Permanent premises for the Frontex headquarters).”1156Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/]
The Executive Director is fully aware of the work carried out by the operations unit. They supervise all ground-level operations and know everything that goes on within them.1157Interviewee I9 For operations carried out at the request of a State, operational plans are discussed between the concerned Member State and the Executive Director.1158Interviewee I30 Migration policies are headed by the Management Board,1159Interviewee I21 and are implemented and executed by the Executive Director, which imbues this position with substantial influence.1160Interviewee I30 According to the 2016 Regulation, the Executive Director identifies measures responding to border challenges and “recommends” them to Member States.1161The European Parliament and The Council of The European Union, Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC,16/09/2016, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.251.01.0001.01.ENG&toc=OJ:L:2016:251:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007074910/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2016.251.01.0001.01.ENG&toc=OJ%3AL%3A2016%3A251%3ATOC] preambular paragraph 21. The Executive Director does not per se suggest policies but his position has considerable influence on their eventual development.
Ilkka Laitinen was the Executive Director until 2014 and was succeeded by Fabrice Leggeri in January 2015.1162European Union, 2014 European Union Directory, https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea, retrieved on 07/10/2020 [https://web.archive.org/web/20201007080813/https://op.europa.eu/en/publication-detail/-/publication/7bab3b21-27e4-4dec-8870-1151ec6011ea] Following their departure, Aija Kalnaja served as interim Executive Director until Hans Leijtens was appointed as the new Executive Director in December 2022. As mentioned, Leggeri’s appointment saw the establishment of a cabinet, acting as a support unit to the Executive Director and Executive management, staffed with four to five people.1163Interviewee I10 As noted above, Thibauld de la Haye Jousselin was the Director of Leggeri’s cabinet within the relevant period. In the period under discussion, the Executive Director was supported in his tasks by five Divisions, three of which are most relevant to this Communication:
The Operational Response Division was key to the practical implementation of the policies analyzed here. It comprised the Centre of Excellence for Combatting Document Fraud; the Operational Divisional Support Office; the Field Deployment Unit; the Coast Guard and Law Enforcement Unit and the European Centre for Returns.1164Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/]
The Risk Analysis Unit had a strong relationship and closely communicates with the Operational Division and supported the ideological framing endeavor undertaken by Leggeri. Some of its staff members are specialized in specific Member States. The Risk Analysis Unit produced reports which are shared between Member States and Frontex sub-units and have functioned as strong vehicles to influence narratives.1165Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/]
Finally, the Capacity Building Division consisted of the Capability Programming Office; the Pooled Resources Unit; the Research and Innovation Unit; and the Training Unit.1166Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/] The Capacity Building Division was responsible for the training of the Libyan coastguards.1167Interviewee I10
The International and European Cooperation Division, consisted of the International Cooperation Unit; the Institutional Partnership Unit; and the Liaison officers Networks Unit,1168Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/] and organizes the cooperation with third countries, third partners and projects with countries such as Libya.1169Interviewee I10 This division was in charge of Frontex’ relations with other EU institutions, Member States and third countries.
Additionally, the Frontex Situation Center in Warsaw acts as the central point of contact which provides updates on operational situations and receives and communicates serious incident reports. The Frontex ‘One Stop Shop’ is operated by the situation center to promote information sharing between Frontex, its partners, and Member States.1170Frontex, Frontex One Stop Shop, https://foss.frontex.europa.eu/#documents/16142/list, retrieved on 07/10/2020 [https://web.archive.org/web/20201007082326/https://foss.frontex.europa.eu/] They are always ‘on call’.1171Interviewee I71
Functioning as an independent observer, a “Fundamental Rights Officer reports directly to the Management Board and cooperates with the Consultative Forum which assists the Executive Director and the Management Board with independent advice in fundamental rights matters.”1172Frontex, Organisation Structure, https://frontex.europa.eu/about-frontex/organisation/structure/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075932/https://frontex.europa.eu/about-frontex/organisation/structure/] As previously mentioned, however, the fundamental rights officer functionally had neither oversight over nor influence on the decisions taken by Frontex.
IIIMid-Level Structure
From the host member State side, joint coordination structures of operations like Triton consist of a coordinator, duty officers, and potentially liaison officials, all of whom are located in the International Coordination Center established by the host Member State.1173Interviewee I71 Regional or local coordination centers may be established under the auspices of the International Coordination Center.1174Interviewee I71 Frontex-deployed vessels are under the command of the International Coordination Center. When the operation turns into a search and rescue one, the MRCC takes command.1175Frontex, Frontex Operations, https://frontex.europa.eu/faq/frontex-operations/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007082832/https://frontex.europa.eu/faq/frontex-operations/] During operation Triton, Member State national guards who spotted boats of «migrants» would transmit the information to the MRCC and the International Coordination Center in Italy.1176European Commission, How does Frontex Joint Operation Triton support search and rescue operations?,https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/frontex_triton_factsheet_en.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007082956/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/frontex_triton_factsheet_en.pdf]
“Focal Points” consisting of coordination groups, developed by Frontex and host states, further enable “long-term exchanges of border guards at key points at the external borders” through covering specific border crossing points (surveillance areas) existing in places where there is no joint operation or complement already existing running operations.1177Interviewee I71 Focal points are under the hierarchical structure of the International Cooperation Center (‘ICC’).1178Interviewee I71 For instance, in Malta the Frontex focal point is within the Malta Police Immigration Section.1179Frontex, National Authorities, https://frontex.europa.eu/partners/national-authorities/m, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083151/https://frontex.europa.eu/partners/national-authorities/m]
On the Frontex side, there is a Warsaw-based Operational Manager for every Operation whose role is to ensure cooperation between the ICC in the host State and Frontex.1180Interviewee I71 These managers draft the proposal for the operational plan in agreement with the host country, follow through on the operation, communicate the operation to supervisors, can adopt updates and amend the operational plans, and are supported by a team of specialized Frontex staff from different units.1181Interviewee I71 A coordinating officer is assigned to each operation and oversees the general coordination of the ground operational.1182Interviewee I71 The coordinating officer does not need to be on the ground but can be and often is.1183Interviewee I71 The Frontex operational coordinator is always on the ground and participates in all the coordination structures, including the International Coordination Center and the Joint Coordination Board.1184Interviewee I71 Frontex support officers can be present at local operation centers to support the work of the operational coordinator.1185Interviewee I71 Some operations have operational analysts who collect information for specific operations about situational awareness or which come up in the news and from any other source.1186Interviewee I71 Analytical assessments of threats and risks are made on that basis.1187Interviewee I71
Finally, the Joint Coordination Board is in charge of running the operation.1188Interviewee I71 This Board is composed of the coordinator (chair), the Frontex operational coordinator, the intelligence officer (information sharing – belongs to host Member State), as well as national officials of the participating Member States providing large assets to the operation.1189Interviewee I71 These national officers of the participating Member States oversee operational decisions on large assets in accordance with their national legislation.1190Interviewee I71
All of the people implicated in these structures were intimately involved in the planning, execution and evolution of Operation Triton and its lethal consequences.
Fig.2 Mid-level structure of Frontex Operations
IVManagement Board
Currently, the supervision of Frontex is mainly the responsibility of the Management Board. As previously noted, all EU Member States and two Commission members from DG HOME are represented on the Board. The DG HOME representatives regularly report to the Commission on the agency’s activities. Non-EU Countries in the Schengen Area may also participate in the meetings and enjoy “limited voting rights.”1191[1] Frontex, Management Board, https://frontex.europa.eu/about-frontex/organisation/management-board/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083306/https://frontex.europa.eu/about-frontex/organisation/management-board/] The Management Board meets five times a year (usually in February, March, June, September, and November).1192[1] Frontex, Management Board, https://frontex.europa.eu/about-frontex/organisation/management-board/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083306/https://frontex.europa.eu/about-frontex/organisation/management-board/] Most decisions are taken with a two-third majority of the members with the right to vote.1193The European Parliament and The Council of The European Union, Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, 14/11/2019, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1896&from=EN, retrieved on 07/10/2020 [https://web.archive.org/web/20201007075413/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX%3A32019R1896&from=EN] article 100(1). However a source revealed that not all the voices on the Management Board have the same weight and some states play a prominent role: Germany, France, Italy and Greece notably.1194Interviewee I9 During the Management board meetings, Member States vote for or against operational plans, which are proposed by the Operational Manager of each Operation in collaboration with the host State, and decide whether or not to allocate resources to the operation (boats, coastguards).1195Interviewee I30
The Chair of the Management Board is an important person within Frontex and plays an influential part in the decision-making process. The Chairperson and the deputy chairperson are elected amongst the members of the Management Board with a right to vote. On the relevant period for this Communication the Chairpersons were Ralf Göbel (April 2012 – April 2016) and Marko Gasperlin (April 2016 – 2022). The Chair generally does not contradict the Executive Director.1196Interviewee I21 Often, the Executive Director will consult the Chair on a subject of importance that might need the Management Board’s approval in order to have his support prior to the session.1197Interviewee I21 The Chair sets the Board’s agenda and is responsible for the implementation of its decisions.1198Interviewee I21 Members of the Consultative Forum – a Forum tasked with assessing, but not controlling, Frontex’ fundamental rights compliance – sometimes participate in Management Board meetings of Frontex.1199Interviewee I21
VSurveillance and Information Sharing Network
Frontex is responsible for “information management” concerning border control within the European Union.1200Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] As such it has multiple tools at its disposal to collect and control intelligence and surveillance gathering, which then provides the basis for all its activities.1201Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] These elements are centrally collected and overseen at the “Frontex Situation Centre” which provides “information access for all Frontex stakeholders.”1202Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] The center is responsible for “situation monitoring” constituting the “central point of contact [;] joint operational support [;] media monitoring [;] mission awareness and back-up [and] crisis management support.”1203Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/]
Two central tools for information gathering by Frontex and generally the EU are the European Border Surveillance System (EUROSUR) and Copernicus, its satellite service.
Fig.3: Surveillance and Information sharing network
VIFunding
Frontex’ budget, amounting to 420,6 million euros in 2020,1204European Commission, EU budget 2020: Commission focuses its proposal on jobs, growth and security, https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2809, retrieved on 07/10/2020 [https://web.archive.org/web/20201007211625/https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2809] is proposed by the Commission and voted upon by the Council and Parliament. Its work program is approved by the Management Board after the opinion of the Commission, specifically DG HOME, is rendered.1205Interviewee I30 The budget has radically increased, from just 6 million euros in 2005,1206Frontex, Decision of the Management Board on the Budget of the Agency for 2005, https://frontex.europa.eu/assets/Key_Documents/Budget/Budget_2005.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007211725/https://frontex.europa.eu/assets/Key_Documents/Budget/Budget_2005.pdf] to 11 billion euros for the 2021-2027 period.1207Sénat, Frontières européennes et Covid-19 : la commission des affaires européennes du Sénat sensible à l’inquiétude du directeur exécutif de Frontex, http://www.senat.fr/basile/visio.do?id=a/presse/cp20200409.html&idtable=a/presse/cp20200409.html|a/commission/groupe_de_travail_brexit.html&_c=Fabrice+LEGGERI&rch=gs&de=20190428&au=20200428&dp=1+an&radio=dp&aff=sep&tri=p&off=0&afd=ppr&afd=ppl&afd=pjl&afd=cvn, retrieved on 07/10/2020 [https://web.archive.org/web/20201007211919/http://www.senat.fr/basile/visio.do?id=a%2Fpresse%2Fcp20200409.html&idtable=a%2Fpresse%2Fcp20200409.html%7Ca%2Fcommission%2Fgroupe_de_travail_brexit.html&_c=Fabrice+LEGGERI&rch=gs&de=20190428&au=20200428&dp=1+an&radio=dp&aff=sep&tri=p&off=0&afd=ppr&afd=ppl&afd=pjl&afd=cvn] Due to the budget increase, Frontex is now able to purchase its own equipment, including drones.1208FAURE, A., “Qu’est-ce que l’Agence européenne de garde-frontières et de garde-côtes (Frontex) ?,” Toute l’Europe, 28/08/2018, https://www.touteleurope.eu/actualite/qu-est-ce-que-l-agence-europeenne-de-garde-frontieres-et-de-garde-cotes-frontex.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212000/https://www.touteleurope.eu/actualite/qu-est-ce-que-l-agence-europeenne-de-garde-frontieres-et-de-garde-cotes-frontex.html] Most Member States support these increases given their heightened interest for border protection.1209Interviewee I38 The relevant portfolios for border protection for each Member State that have a link to the case are described in their respective Country Reports. EU external actions are funded and managed by DG NEAR or DG DEVCO and Frontex can benefit from these funds “when Frontex launches and finances technical assistance projects in non-EU countries.”1210Frontex, EU Partners European Commission, https://frontex.europa.eu/partners/eu-partners/european-commission/,retrieved on 07/10/2020 [https://web.archive.org/web/20201007072955/https://frontex.europa.eu/partners/eu-partners/european-commission/]
VIIEUROSUR
EUROSUR (European Border Surveillance System) is an information network designed to improve the management of Europe’s external borders. As part of the EU’s efforts to establish a proper European border police force, the potential establishment of a common surveillance system was assessed and subsequently carried out. In 2005, the European Council “called on Frontex to launch a feasibility study on reinforcing monitoring and surveillance of the southern maritime border of the EU, namely in the Mediterranean Sea, and on a Mediterranean Coastal Patrols Network involving EU Member States and North African countries.”1211Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H]
The resulting 2006 MEDSEA (MEDiterranean Sea Acidification in a changing climate) study was conducted by Frontex and provided “the organizational and technical structure to exchange information ensuring the coordination of such operational activity in an EU approach.”1212Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] Frontex was further tasked with gaging the “technical feasibility of establishing a surveillance system covering the whole southern maritime border of the EU and the Mediterranean Sea.”1213Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] This study – titled BORTEC – presented the structure of such a surveillance system and was the basis for the European Patrols Network (EPN).1214Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] This Network served as an “international maritime cooperation platform integrating joint maritime operations [including Triton and Poseidon] […], the networking of specialists in the maritime domain (EPN General meetings and dedicated workshops), and the shared surveillance of neighboring patrolling areas (EPN Common Patrols).”1215Frontex, Migration Phenomena Towards EU: Joint Operations in the Central and Eastern Mediterranean sea, 12/05/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/shade_med_1_2016/FRONTEX.pdf,retrieved on 07/10/2020 [https://web.archive.org/web/20190327203712/http://www.marina.difesa.it/EN/operations/shade_med/Documents/shade_med_1_2016/FRONTEX.pdf]
This Network officially began in May 20071216European Commission, Launching operations of the European Border Patrols Network: a new tool to tighten up control and management of the EU’s Southern maritime borders, 24/05/2007, https://ec.europa.eu/commission/presscorner/detail/en/IP_07_702, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084346/https://ec.europa.eu/commission/presscorner/detail/en/IP_07_702] and further planned to establish “an appropriate organizational structure, National Coordination Centres (NCCs).”1217Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] At this point, a “European Surveillance System” already existed1218Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] but was not yet EUROSUR. EUROSUR itself represented a formalization of European surveillance and relies on structures created by the European Patrols Network, most notably the National Coordination Centers (NCCs).1219Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] As such, the European Border Surveillance System known as EUROSUR was created by a Council regulation in October 2013 to ensure a European surveillance system that would connect the Member States and Frontex.1220The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC]
EUROSUR’s founding regulation explicitly states that its creation serves to “detect […], prevent […], and combat […] illegal immigration and cross-border crime and contribute […] to ensuring the protection and saving the lives of migrants.”1221The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC] article 1.
In line with other documents, the protection of “migrants” is merely an afterthought and never a priority.1222The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC] article 1. Another key sentence in this founding document refers to “the practice of travelling in small and unseaworthy vessels [having] dramatically increased the number of migrants drowning […,] EUROSUR should considerably improve operational and technical ability of the Agency and the Member States to detect such small vessels […].”1223The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC] preambular paragraph 2.
The EU thus made a connection in October 2013 between inadequate “unseaworthy” vessels being the cause for “dramatic” increase of «migrants» drowning yet designed and implemented a migration policy a few years later that was specifically aimed at destroying these already “unseaworthy” vessels, leading to the use of increasingly worse boats. Although the EU was aware of the consequences a policy destroying «migrants» vessels would incur, the creation of EUROSUR intended to improve the detection of such vessels and thus served to systematically find and destroy more vessels. This is so despite the fact that the regulation itself “recognizes” that “migratory routes are also taken by persons in need of international protection”.1224The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC] preambular paragraph 3.
The decision to shift from Mare Nostrum to Triton was based on and legitimized by data from EUROSUR indicating increasing “flows of illegal migrants.” Integrating Libya in the EUROSUR network was also a critical element of the criminal plans adopted by EU leaders.
EUROSUR relies on “a network of National Coordination Centers” (‘NCC’) connecting and pooling surveillance data collected by Member States and Frontex.1225Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] The NCCs “collect local and national information about what takes place at the border, including illegal border crossing and criminal activity.”1226Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] This builds the basis for Frontex’ creation of “the European situational picture and the common pre-frontier intelligence picture.”1227Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] Frontex subsequently feeds that information back to the Member States through the network.1228Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] The information is supplemented by Frontex’ own surveillance gathering through “satellites and surveillance tools at the European level.”1229Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/]
All of these “services” form the “Eurosur Fusion Services” and entail “vessel tracking and detection capabilities, software functionalities allowing complex calculations for detecting anomalies and predicting vessel positions.”1230Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] These services are “close-to-real-time”, providing a constantly updated picture of the situation at the external borders.1231Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] Imperatively, EUROSUR not only communicates data, but it also provides analysis thereof.1232Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] As such, EUROSUR “indicat[es] the adequate level of operational reaction at different border sections.”1233Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] Beyond Member State contributions and Frontex, EUROSUR intelligence data comes from the European Maritime Safety Agency, “EU military missions, [… and] the US command Africom in Stuttgart or the EU Satellite Center.”1234MONROY, M., “European border surveillance in Libya,” Dissectin Security Architectures, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 07/10/2020 [https://web.archive.org/web/20201007085112/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/]
A Commission working document from 2018 evaluating the EUROSUR network, stated that EUROSUR “is not the main system in use for saving migrants’ lives at sea”. The finding of this evaluation document acknowledged a failure in the EUROSUR network, since in 2015 it was provided by the EUROSUR Handbook that data relevant for saving lives at sea should be timely shared with the MRCC concerned. Interestingly, the item “ensuring the protection and saving the lives of migrants” had the worst efficiency score within the evaluation document.1235European Commission, Commission Staff Working Document: Evaluation of the Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 12/09/2018, https://www.statewatch.org/media/documents/news/2018/sep/eu-com-eurosur-evaluation-swd.pdf, retrieved on 02/12/2022 [https://web.archive.org/web/20220303123555/https:/www.statewatch.org/media/documents/news/2018/sep/eu-com-eurosur-evaluation-swd.pdf], p. 30.
Under EUROSUR, Frontex has access to a large pool of data which was only increased through its mandate expansion in 2019, giving Frontex authority over a system it was until then only connected to. The information available under EUROSUR provided Frontex, Member States, EU leaders and technocrats with live and comprehensive knowledge of the evolution in the Mediterranean Sea, making it impossible to pretend that there was any kind of possible lack of consciousness of the gravity of the situation. Furthermore, sharing this information with the Libyan coastguards played a crucial role in the criminal conduct of Frontex officials in connection with EU’s 2nd policy to capture, abduct and forcibly transfer of more than 150,000 asylees to detention and abuse in Libyan atrocious camps.
VIIICopernicus
A few months prior to the inception of Operation Triton, in April 2014, the surveillance service Copernicus was launched.1236The European Parliament and the Council of the European Union, Regulation (EU) No 377/2014 of the European Parliament and of the Council of 3 April 2014 establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010 Text with EEA relevance, https://op.europa.eu/en/publication-detail/-/publication/976616e8-cb7c-11e3-b74e-01aa75ed71a1, retrieved on 07/10/2020 [https://web.archive.org/web/20201007220121/https://op.europa.eu/en/publication-detail/-/publication/976616e8-cb7c-11e3-b74e-01aa75ed71a1] This is a Commission-run service which provides “accurate, reliable and up-to-date data collected from satellites and on-site sensors.”1237Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] With EUROSUR, it is the second surveillance system developed by Frontex, its specificity is its use of satellite images. It is specifically supposed to assist the EU with “border surveillance, maritime surveillance and support to EU External Action.”1238Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] Border surveillance specifically was later moved under the control of Frontex in November 2015.1239Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] It is a primary tool for risk analysis and is explicitly aimed at “reduc[ing] the number of irregular migrants entering the EU undetected” and supposedly rescuing “migrants”.1240Frontex, Information Management, https://frontex.europa.eu/intelligence/information-management/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007083809/https://frontex.europa.eu/intelligence/information-management/] Copernicus thus provided data for risk analyses given by Frontex to initiate Triton. At the same time, it immensely increased the surveillance gathering capacities of Frontex, thus establishing more control over the Mediterranean shortly before the launch of EU’s 1st policy of mass killings by drowning.
IXRisk Analysis
Decisions within Frontex are based on research and risk analysis reports. The latter constitutes one of the agency’s most impactful tools vis-à-vis other European institutions and Member States.1241Interviewee I71 Frontex submits a yearly “risk analysis to the Commission and to the Member States in accordance with its mandate. Such risk analysis [has] to take into account, inter alia, illegal immigration and significant changes in the operational environment at the external borders, and include recommendations on the priorities for evaluations in the following year. The recommendations [have to] refer to specific sections of the external borders and to specific border crossing-points to be evaluated in the following year under the multiannual evaluation programme. The Commission [has to] transmit that risk analysis without delay to the European Parliament and to the Council.”1242The Council of the European Union, Council Regulation No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, 06/11/2013, https://eur-lex.europa.eu/legal-content/en/TXT/HTML/?uri=CELEX:32013R1053, retrieved on 07/10/2020 [https://web.archive.org/web/20201007085534/https://eur-lex.europa.eu/legal-content/en/TXT/HTML/?uri=CELEX%3A32013R1053] article 7.
Further underlining the influential role of risk analysis reports, Ralf Göbel, Chair of the Management Board (2012 until 2016 from 2016-2018 Deputy Chair of the Management Board) stated, that risk analysis effectively determines whether people in the Mediterranean were “war refugees” or “economic migrants” for other EU institutions and Member States,1243JACOBSEN, L., “Wir können da nichts machen,” Zeit Online, 08/10/2013, https://www.zeit.de/politik/ausland/2013-10/Frontex-Lampedusa-Fluechtlinge, retrieved on 07/10/2020 [https://web.archive.org/web/20201007092930/https://www.zeit.de/zustimmung?url=https%3A%2F%2Fwww.zeit.de%2Fpolitik%2Fausland%2F2013-10%2FFrontex-Lampedusa-Fluechtlinge] in a stark contrast to the fundamentals of international and European refugee and human rights law which require individual assessment.
Putting the focus exclusively on “illegal immigration” has created an ideological narrative according to which migration is solely perceived as a threat the EU needs to defend from, as a risk to be mitigated.1244Frontex, Risk Analysis for 2020, 03/2020, https://frontex.europa.eu/assets/Publications/Risk_Analysis/Risk_Analysis/Annual_Risk_Analysis_2020.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007085714/https://frontex.europa.eu/assets/Publications/Risk_Analysis/Risk_Analysis/Annual_Risk_Analysis_2020.pdf] As an example see the above. It is this narrative that dominated Frontex’s decision-making. “Evaluation”, in the language of Frontex, comes down to a bureaucratic term limited to counting the numbers of “illegal” crossings, entries, and other elements showing “efficiency” in “border management”. Efficiency in turn is measured by the extent to which migration “flows” are reduced while neutralizing its human impact and, ultimately, paving the way to adoption of criminal policies pursuing this objective at all costs.
Frontex has developed the Common Integrated Risk Analysis Model (CIRAM) as a methodology of risk analysis applied by all Member States. This model defines “risk” as a “function of threat, vulnerability and impact.”1245Frontex, Monitoring and risk analysis, https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/, retrieved on 13/07/2024 [https://web.archive.org/web/20250124114233/https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/] According to this model, a “threat” constitutes “a force or pressure” on the “management of the external borders”, with “vulnerability” being the measure of how prepared the system is to deal with such a threat and the “impact” relating to the possible outcome of a given threat.1246Frontex, Monitoring and risk analysis, https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/, retrieved on 13/07/2024 [https://web.archive.org/web/20250124114233/https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/] The alleged added-value of the CIRAM is that it adopts a “management approach to risk analysis”, meaning the information can immediately be operationalized into action.
Fig.4 Common Integrated Risk Analysis Model (CIRAM)1247Frontex, Monitoring and risk analysis, https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/, retrieved on 13/07/2024 [https://web.archive.org/web/20250124114233/https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/]
Frontex publishes an annual EU-wide risk analysis report following this model. The report exposes which border checks and surveillance are conducted, establishes operational planning and determines the allocation of resources within the agency.1248Interviewee I10 1249Interviewee I68 Its creation process is opaque, and its content serves as a powerful argumentative tool that was used to legitimize the development of criminal policies, such as the training of the Libyan coastguards.1250Interviewee I67
Moreover, Frontex’ function to provide risk analysis imbues it with considerable power to shape the agenda and needs of the EU, and therefore its own mandate and missions.1251HORII, S., “The effect of Frontex’s risk analysis on the European border controls,” 2016 European Politics and Society, 17(2), https://www.tandfonline.com/doi/abs/10.1080/23745118.2016.1121002, retrieved on 16/06/2025. As operational decisions and allocation of resources are derived from risk analysis, Frontex finds itself in a position of significant power and self-management.1252HORII, S., “The effect of Frontex’s risk analysis on the European border controls,” 2016 European Politics and Society, 17(2), https://www.tandfonline.com/doi/abs/10.1080/23745118.2016.1121002, retrieved on 16/06/2025. The lack of contradiction or peer-review over these documents have put the executive director of this agency in a unique position allowing the latter to increase the power, mandate and budget of his own agency.
In at least two instances, Frontex used these reports to misrepresent data in favor of stoking anti-migrant sentiment and subsequently increasing its role.1253SIGONA, N., “Seeing double? How the EU miscounts migrants arriving at its borders,” The Conversation, 16/10/2015, https://theconversation.com/seeing-double-how-the-eu-miscounts-migrants-arriving-at-its-borders-49242, retrieved on 07/10/2020 [https://web.archive.org/web/20201007090343/https://theconversation.com/seeing-double-how-the-eu-miscounts-migrants-arriving-at-its-borders-49242] In 2015, Frontex falsely claimed an “unprecedented inflow of people” had taken place, citing a number which “double counted migrants entering the EU” by Frontex’s own admission.1254Frontex, Monitoring and risk analysis, https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/, retrieved on 13/07/2024 [https://web.archive.org/web/20250124114233/https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/] In this particular case Frontex admitted counting the same person two or three times when he or she crossed the EU border several times. In essence, Frontex conflated, and continues to conflate, “border crossings” with “people entering the EU” which grossly inflates the numbers.1255Frontex, Monitoring and risk analysis, https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/, retrieved on 13/07/2024 [https://web.archive.org/web/20250124114233/https://www.frontex.europa.eu/what-we-do/monitoring-and-risk-analysis/ciram/] For example, in 2015 Frontex reported that 710 000 persons entered the EU, while the UN counted only 590 000 persons in the same period. Yet in a subsequent risk analysis report, the number of border crossings was framed as a huge risk of migration inflows.1256SIGONA, N., “Seeing double? How the EU miscounts migrants arriving at its borders,” The Conversation, 16/10/2015, https://theconversation.com/seeing-double-how-the-eu-miscounts-migrants-arriving-at-its-borders-49242, retrieved on 07/10/2020 [https://web.archive.org/web/20201007090343/https://theconversation.com/seeing-double-how-the-eu-miscounts-migrants-arriving-at-its-borders-49242], p. 45. Despite the factual (inaccurate numbers) and legal (conflating irregular with ‘illegal’ entry) inaccuracy of these reports, they are made public and diffused by the media which uncritically reproduces their content and orientations.1257HORII, S., “The effect of Frontex’s risk analysis on the European border controls,” 2016 European Politics and Society, 17(2), https://www.tandfonline.com/doi/abs/10.1080/23745118.2016.1121002, retrieved on 16/06/2025.
XRegional Risk Analysis: The Africa Frontex Intelligence Community
The Africa-Frontex Intelligence Community is a regional risk analysis network and community which is “managed and supported by the Frontex Risk Analysis Unit” (RAU).1258Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 43. The Africa-Frontex Intelligence Community serves as a framework for “regular knowledge and intelligence sharing” between Frontex and African countries.1259Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 43. The Africa-Frontex Intelligence Community exists to exchange information on migration flows which are relevant for planning operations. Such intelligence can be maliciously used for ‘push’ and ‘pull’ back operations, making it highly sensitive,1260Interviewee I21 1261Frontex, Africa-Frontex Intelligence Community Joint Report 2017, 21/11/2018, https://frontex.europa.eu/assets/Publications/Risk_Analysis/AFIC/AFIC_2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093602/https://frontex.europa.eu/assets/Publications/Risk_Analysis/AFIC/AFIC_2017.pdf] especially since Frontex has gained control over EUROSUR under its 2019 mandate expansion. The Commission decided to “promote border cooperation, dialogue and exchange of information between Libya and its southern neighbors, including using the Africa-Frontex Intelligence Community to full potential.”1262European Commission, Questions & Answers: migration on the central mediterranean route, 25/01/2017, https://ec.europa.eu/commission/presscorner/detail/en/memo_17_135, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093747/https://ec.europa.eu/commission/presscorner/detail/en/memo_17_135]
XIEU4Border Security
The EU4Border Security is a project developed by Frontex in 2018 and supervised by DG NEAR.1263Frontex, 16th Meeting Frontex Consultative Forum on Fundamental Rights, 17/05/2018 [Annex 18] The project, initially funded with 4 million euros,1264EU Neighbours, EU4BorderSecurity project, https://south.euneighbours.eu/project/eu4bordersecurity-project/, retrieved on 16/06/2025 [https://web.archive.org/web/20250320221207/https://south.euneighbours.eu/project/eu4bordersecurity-project/] to which 2.5 million euros was later added,1265Frontex, Beyond EU borders, https://www.frontex.europa.eu/what-we-do/beyond-eu-borders/our-international-projects/, retrieved on 16/06/2025 [https://web.archive.org/web/20250602162812/https://www.frontex.europa.eu/what-we-do/beyond-eu-borders/our-international-projects/] and aimed to increase their capacity to undertake “risk, strategic and operational analysis” with a view of “strengthening” border security. In line with other Frontex projects under the “integrated border management” concept, it fostered cooperation with third countries, including Libya, to curb “illegal” immigration. It was also supporting regional information sharing, utilizing tools provided by Frontex, and was meant to contribute to the fight against “security threats”, in particular organized crime, including the illicit trafficking in drugs, the smuggling of “migrants”, trafficking in human beings and the travel of terrorists.1266Germany Trade & Invest, Annual Action Programme 2017 in favour of the European, 16/08/2018, https://www.gtai.de/resource/blob/33306/d3b0e26443e008f250e54b5d8ad9cb46/pro201712045018-data.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007225840/https://www.gtai.de/gtai-de/trade/entwicklungsprojekte/aegypten/annual-action-programme-2017-in-favour-of-the-european-25142] Here too, the EU4Border Security allowed Frontex to give logistic, statistical and operational tools to the Libyan coastguards. Much like the aforementioned Africa-Frontex Intelligence Community, the EU4Border Security equipped Frontex with another layer of assistance to third countries which would directly facilitate the commission of crimes against humanity.
XIIFundamental Rights Protection
In 2011, two mechanisms to presumably ensure the protection of fundamental rights at Frontex were created: the Fundamental Rights Officer and the Consultative Forum on Fundamental Rights.1267Frontex, Fundamental Rights, https://frontex.europa.eu/fundamental-rights/fundamental-rights-at-frontex/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093947/https://frontex.europa.eu/fundamental-rights/fundamental-rights-at-frontex/] This new Regulation originated within the European Parliament and was the result of a compromise with the Council, as the Parliament wanted more accountability, and the Council less.1268Interviewee I21 The Fundamental Rights Officer (FRO) is responsible for advising Frontex on fundamental rights-related aspects of their work. The successive reports made by the FRO and the Consultative Forum over the years have shown that both bodies are completely ineffective. Two of its mechanisms that proved to have limited effect in Frontex’s compliance with fundamental rights are the Serious Incident reports and complaint mechanisms.
XIIISerious Incident Report
A Serious Incident “is an event or occurrence, natural or caused by human action, which may affect, or be relevant to a particular Frontex activity, the safety and security of participants in Frontex activities, the Agency’s mission and reputation, or any combination thereof.”1269Frontex, ANNEX 14 SERIOUS INCIDENT REPORTING, https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094113/https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf], p. 1. Serious Incidents also include situations of possible violations of EU acquis or international law, in particular related to Fundamental Rights and international protection obligations. Finally, Serious Incidents include any violation of the Frontex Code of Conduct applicable to all persons participating in Frontex operational activities and the Code of Conduct for Joint Return Operations coordinated by Frontex.1270Frontex, ANNEX 14 SERIOUS INCIDENT REPORTING, https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094113/https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf], p. 1.
Follow-ups on the Serious Incident must be sent to the Frontex Situation Centre.1271Frontex, ANNEX 14 SERIOUS INCIDENT REPORTING, https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094113/https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf], pp. 3-4. They can ultimately be the basis “for official statements and follow-up measures by Frontex."1272Frontex, ANNEX 14 SERIOUS INCIDENT REPORTING, https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094113/https://www.statewatch.org/media/documents/news/2016/aug/frontex-serious-incident-reporting.pdf], p. 1. “If an officer deployed by Frontex is found to have violated the Frontex Code of Conduct, the agency may suspend the officer in question from an operation and refer him/her to the national authorities of the officer’s home Member State, who may take further disciplinary actions. If the violation is committed by the authorities of the Member State hosting the operation, possible measures range from sending a letter of concern through withdrawal of financial support for the operation to suspension or termination of the joint operation in case of serious or persistent violations of fundamental rights or international protection obligations.”1273Frontex, Fundamental Rights, https://frontex.europa.eu/fundamental-rights/fundamental-rights-at-frontex/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093947/https://frontex.europa.eu/fundamental-rights/fundamental-rights-at-frontex/]
SIRs evidence the self-awareness of Frontex members when breaching important human rights provisions. For examples, in 2017 “a total of nine Serious Incident Reports (SIR) were submitted to Frontex, of which three took place in Frontex sea operations. The FRO was appointed as a SIR coordinator for all reported incidents and followed up the cases with Frontex relevant units and national authorities. Among the three incidents reported, one occurred [under Operation Triton] and two [under Operation Poseidon]. The alleged violated rights in these SIRs were the following: the right to life (Article 2 of the Charter of fundamental rights of the European Union), the right to asylum (Article 18), the rights of the child (Article 24) and human dignity together with the right to the integrity of the person (Article 1 and 3).”1274Frontex, Annual report on the implementation of Regulation (EU) 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, 16/07/2018, http://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094650/https://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf], p. 18.
Decrease in the number of events that could be qualified as ‘serious incidents’ over the years was not a result of increased compliance with human rights and international protection obligations, but of the withdrawal from the critical rescue areas pursuant to the criminal policies analyzed in the present case. In 2019, for example, Frontex said “drones had encountered boats in distress on only four occasions – all in June in 2019 – in the Central Mediterranean, and that none had led to a ‘serious incident report’ [. …] When EU naval vessels were deployed in similar areas in previous years, multiple serious incidents were reported every month according to documents obtained by the Observer.”1275HOWDEN, D., FOTIADIS, A. and LOEWENSTEIN, A., “Once migrants on Mediterranean were saved by naval patrols. Now they have to watch as drones fly over,” The Guardian, 05/05/2020, https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu, retrieved on 07/10/2020 [https://web.archive.org/web/20201007210629/https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu]
XIVComplaint Mechanisms
The Complaint Mechanism was established by Regulation 2016/1624 on the European Border and Coast Guard. It allows anybody “directly affected by the actions of staff involved in a joint operation, pilot project, rapid border intervention, migration management support team deployment, return operation, or return intervention to submit a complaint if the person considers him or herself to have been the subject of a breach of his or her fundamental rights due to those actions, or any party representing such a person.”1276European Commission, Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council, 12/09/2018, https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF, retrieved on 07/10/2020 [https://web.archive.org/web/20201007210927/https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF] article 108(2). The complaint is examined by the Fundamental Rights Officer, and, if warranted, sent to the Executive Director and the Member State of the concerned person. In addition, the FRO informs “the relevant authority or body competent for fundamental rights in a Member State and ensures a follow-up by the Agency or that Member State.”1277Frontex, Complaint Mechanism, https://frontex.europa.eu/fundamental-rights/complaints-mechanism/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007211343/https://frontex.europa.eu/fundamental-rights/complaints-mechanism/]
In practice, Annegret Kohler, the interim Fundamental Rights Officer in 2019, admitted that the complaint mechanism, in so far as human rights violations are concerned, is completely useless.1278Interviewee I68 These mechanisms served as a humanitarian cover for the criminal activities carried out by Frontex but were never intended to have any real impact on them. Such mechanisms had become meaningless once search and capture operations, cloaked as search and rescue ones, were outsourced to the Libyan coastguard for the purpose of executing the crime against humanity of forced transfer or deportation pursuant to EU policies.
CImplication in Criminal Policies
The overview above demonstrates that Frontex was implicated in all relevant migration policies: the termination of Mare Nostrum, its substitution with Joint Operation Triton and subsequent operations, the criminalization of NGOs, and the reconstruction of and contracting with the Libyan Coast Guard (LYCG): Following Frontex’s risk analysis and operational report, its management board decided to launch Operation Triton; Frontex incited other actors to criminalize SAR NGOs; Frontex participated in the training of and exchanged information with the LYCG under the European Coastguard Cooperation Network, the former Seahorse Mediterranean Network and the Africa-Frontex Intelligence Community; Frontex was supporting the establishment of a Libyan MRCC, EUBAM Libya projects and the EU4Border Security project. Specifically, the agency orchestrated EU’s 2nd policy by directly sharing the information gathered by its aerial surveillance operations with Libyan entities, in order to ensure the interception and forced transfer or deportation of more than 150,000 asylees seeking to flee the armed conflict in Libya back to the country.
IEnd of MN; Joint Operation TRITON; Thémis
During the relevant time period, Frontex repeatedly advanced the narrative that search and rescue efforts constitute a ‘pull-factor’,1279MACCANICO, Y., “’Europe must do more…’ Hasn’t it done enough? 20 years of restrictive EU immigration policy have – inevitably - led us to the current situation,” February 2016, Statewatch, https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf, retrieved on 09/10/20 [https://web.archive.org/web/20201011235517/https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf], p. 12. Making use of its considerable discursive power in the form of its risk analysis assessments. In one of them, Frontex stated that “[…] The presence of the assets of the operation Mare Nostrum, patrolling closer to the Libyan coast with the aim of preventing the loss of migrants’ lives, has been exploited by facilitation networks in Libya, who have been able to push an increasing number of migrants to depart in unseaworthy vessels, with the expectation of being rescued soon after departure."1280MACCANICO, Y., “’Europe must do more…’ Hasn’t it done enough? 20 years of restrictive EU immigration policy have – inevitably - led us to the current situation,” February 2016, Statewatch, https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf, retrieved on 09/10/20 [https://web.archive.org/web/20201011235517/https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf], p. 12.
Around that time, Frontex also participated in the Task Force Mediterranean which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.1281European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 2. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation, and thus the basis for the later pushback by proxy;1282European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024, p. 2. identified EUBAM as a possible mechanism thereof;1283European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024, p. 7. indirectly alluded to the potential training of the Libyan Coastguard;1284European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024, p. 9. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”1285European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. They also make explicit reference to ensuring compliance with international human rights standards including “the principle of non-refoulement”, and potential issues regarding third country cooperation, demonstrating the participants’ awareness their suggested actions amount to, at minimum, serious and grave violations of international law.1286European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024, pp. 3, 6.
The earlier communication in October 2013, published before any the criminal policies were decided and implemented, already mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,”1287European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024, p. 7. establishing the EU and Member States’ full awareness of the conditions which they subsequently subjected tens of thousands of migrants pursuant to EU’s 2nd policy.
Leading up to the end of Mare Nostrum, Frontex further had been involved in border “management” activities in Italy since 2005 and organized many border “control” and surveillance operations.1288Interviewee I10 Operation Triton was described as merely a formalized “reconfiguration” of Frontex’s existing “operational support” to Italy, indicating the close relationship between Frontex and Italy’s anti-migration efforts.1289Interviewee I10 Frontex’s risk analysis and an operational report, which is distributed to all member states, called for “more coordination [and] flexibility,”1290Interviewee I10 drew on Italian data, and was conceived by Frontex and Italy.1291Interviewee I10 1292Interviewee I68
The Management Board of Frontex launched JO Triton on 22 October 2014.1293Frontex, Management Board Decision Decision No 24/2014, 22/10/2014, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212440/https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf] Triton’s area of intervention was severely limited in comparison to Mare Nostrum in line with the mission’s implicit objective to circumvent the perceived “pull factor” of search and rescue operations. The agreement itself was concluded between Italy and the Management Board.1294Interviewee I30 As we have seen, the Management board includes the Executive Director, the Deputy Executive Director and two representatives of Directorate-General for Migration and Home Affairs (Commission). Its concrete structure, mission, and planning was developed through cooperation between the Management Board of Frontex, the Commission, the Council, and Frontex Senior Staff. Given Frontex’ role as the implementing partner,1295Interviewee I21 the agency was able to incorporate its own vision into the operation structure. The shift from Mare Nostrum to Triton was pushed for by Klaus Rösler, and the overall policy was crafted by Rösler and Mogherini, who then served as Italian Foreign Affairs Minister (February-October 2014).1296Interviewee I24
In 2014, Frontex had not yet acquired its own planes and ships, and the agency was depended on the contribution of Member States to execute the operation.1297European Commission, Frontex Joint Operation ‘Triton’ – Concerted efforts to manage migration in the Central Mediterranean, 07/10/2014, https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_566, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213259/https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_566] The agency sent out a request to all Member States to contribute equipment for Triton, and Frontex’s 2014 budget was increased by DG HOME.1298Frontex, Management Board Decision Decision No 24/2014, 22/10/2014, https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212440/https://frontex.europa.eu/assets/Key_Documents/MB_Decision/2014/MB_Decision_24_2014_on_the_amendment_of_Frontex_PoW_N2_and_budget_N2_2014.pdf] During the first months of operation Triton (end of October - December 2014), Frontex observed a 160% increase in crossings.1299MORTERA-MARTINEZ, C. and KORTWEG, R., “Dead in the water: fixing the EU’s failed approach to Mediterranean migrants,” European Reform, 23/04/2015, https://www.cer.eu/insights/dead-water-fixing-eu%E2%80%99s-failed-approach-mediterranean-migrants, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213657/https://www.cer.eu/insights/dead-water-fixing-eu%E2%80%99s-failed-approach-mediterranean-migrants] Triton sailed 30 miles off Italy’s coast, which was at least a twelve-hour sail from Libya and therefore purposefully avoiding “the area where most of the shipwrecks occurred.”1300CAMPBELL, Z., “Abandoned at Sea,” The Intercept, 01/04/2017, https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212943/https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/]
This “gap in rescue capabilities” was so apparent that the Rome-based Maritime Rescue and Coordination Center itself instructed Frontex to expand its search and rescue efforts beyond Triton’s scope.1301Death by Rescue, Main narrative, https://deathbyrescue.org/report/narrative/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213806/https://deathbyrescue.org/report/narrative] But as outlined in the first Communication, in a letter sent to the Italian General Director of Immigration and Border Police,1302Death by Rescue, Main narrative, https://deathbyrescue.org/report/narrative/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213806/https://deathbyrescue.org/report/narrative] Frontex’s Klaus Rösler expressed “concerns about engagement of Frontex deployed assets in activities outside the operational area [and] clarified that border control is Triton’s primary mandate by stating that it is outside the scope of Frontex to deploy assets outside of its operational area.1303Death by Rescue, Main narrative, https://deathbyrescue.org/report/narrative/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213806/https://deathbyrescue.org/report/narrative] Only after ‘indication of a state of emergency’ could deployment of SAR vessels be justified, implying that boats of migrants in distress at sea would not qualify as a state of emergency.”1304Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the Internationql Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf] paras 74-75.
Rösler referred to two main search and rescue events that had occurred in November 2014. The letter further outlined that while Frontex continued “to support well-grounded national efforts of [Member States] as regards international Search and Rescue (SAR) obligations,” it still considered border control as its main objective.1305Death by Rescue, Main narrative, https://deathbyrescue.org/report/narrative/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213806/https://deathbyrescue.org/report/narrative]
Frontex was demonstratively reticent to carry out rescue operations and sought to limit its assets being called upon to intervene outside of Triton’s operational area.1306Death by Rescue, Main narrative, https://deathbyrescue.org/report/narrative/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007213806/https://deathbyrescue.org/report/narrative] 1307Frontex, Letter between Rösler and Pinto, 25/11/2014, https://www.documentcloud.org/documents/3531242-Rosler-Pinto-Frontex-Letter-2014.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214410/https://www.documentcloud.org/documents/3531242-Rosler-Pinto-Frontex-Letter-2014.html] However, while Rösler stated that Triton’s first priority was to ensure effective border control and monitoring of criminal networks in North Africa, these activities were not limited to EU waters: “We expect that Triton will have capacity to tackle migratory flows from Egypt and Libya and it is not limited to the territorial waters of all contiguous zones so it goes on the high seas,” he said, and further stressed that “Triton is not a replacement for Mare Nostrum.”1308DAVIES, L., NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] Furthermore, Rösler claimed that “Frontex is not a coordinating body for search and rescue operations. The responsibility of member states to ensure search and rescue operations and maritime security on this is not substituted for – or suspended by – a border surveillance operation.”1309DAVIES, L., NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] As detailed in the first communication, quoting The Guardian, “Frontex’s press office did not answer to repeated requests for comment on Rösler’s 2014 letter. The agency would not clarify if the letter still represented Frontex policy, nor if the agency still believed a distress call via satellite phone was not necessarily a search and rescue event.”1310CAMPBELL, Z., “Abandoned at Sea,” The Intercept, 01/04/2017, https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212943/https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/]
Whereas other EU entities couched these activities in humanitarian language, Rösler clearly spelled out the intentions of the actual practical implementation of Triton: reducing the number of arrivals in Europe by saving less migrants in distress at sea.
The January 2015 Tactical Focused Assessment for Triton written by the Risk Analysis Unit further confirms that the rationale of leaving search and rescue within Member State responsibility was intended to act as a deterrent for migrants for the purpose of stemming crossings. The Assessment noted that “the end of Operation Mare Nostrum on 31 December 2014 will have a direct impact on the JO Triton 2014. The fact that most interceptions and rescue missions will only take place inside the operational area could become a deterrence for facilitation networks and migrants that can only depart from the Libyan or Egyptian coast with favorable weather conditions and taking into account that the boat must now navigate for several days before being rescued or intercepted.”1311Frontex, JO Triton 2015: Tactical Focused Assessment. Operations Division Risk Analysis Unit, 14/01/2015, https://deathbyrescue.org/assets/annexes/7.Frontex_Triton%202015%20Tactical%20Focused%20Assessment_14.01.2015.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214659/https://deathbyrescue.org/assets/annexes/7.Frontex_Triton%202015%20Tactical%20Focused%20Assessment_14.01.2015.pdf], p. 2.
Thus, Frontex itself has repeatedly publicly stated that Triton was “primarily [about] border management,”1312ECRE Weekly Bulletin, Operation Mare Nostrum to end – Frontex Triton Operation will not ensure rescue at sea of migrants in international waters, 10/10/2014, https://www.asylumineurope.org/news/13-10-2014/operation-mare-nostrum-end-frontex-triton-operation-will-not-ensure-rescue-sea, retrieved on 07/10/2020 [https://web.archive.org/web/20201007220302/https://www.asylumineurope.org/news/13-10-2014/operation-mare-nostrum-end-frontex-triton-operation-will-not-ensure-rescue-sea] and that they conduct search and rescue but that reduced capacity would lead to “many more sea deaths the moment that Mare Nostrum is withdrawn.”1313DAVIES, L., NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] Frontex itself thus explicitly acknowledged the lethal consequences the replacement of Mare Nostrum with Triton would have. For example, Gil Arias, Deputy Executive Director until 2016, peddled the dangerous falsehood that Mare Nostrum was a pull factor: “The Italian operation Mare Nostrum had been criticized because its ships were patrolling the border of Libyan waters to rescue migrants. This, according to the operation's critics, encouraged the business of smugglers. It is true that this allowed them to make monstrous profits, since they did not even equip the boats with enough fuel.”1314BAUER, A., “Gil Arias-Fernandez : ‘80 % des migrants sont des réfugiés potentiels’,” Les Echos, 13/05/2015, https://www.lesechos.fr/2015/05/gil-arias-fernandez-80-des-migrants-sont-des-refugies-potentiels-247876, retrieved on 07/10/2020 [https://web.archive.org/web/20201007220733/https://www.lesechos.fr/2015/05/gil-arias-fernandez-80-des-migrants-sont-des-refugies-potentiels-247876] Fabrice Leggeri further dismissed turning Triton into a search and rescue operation, saying it would “support and fuel the business of traffickers.” Instead, he recommended to expand air surveillance of the Maltese waters “to anticipate more disasters.”1315KINGSLEY, P. and TRAYNOR, I., “EU borders chief says saving migrants’ lives shouldn’t be priority for patrols,” The Guardian, 22/04/2015, https://www.theguardian.com/world/2015/apr/22/eu-borders-chief-says-saving-migrants-lives-cannot-be-priority-for-patrols, retrieved on 07/10/2020 [https://web.archive.org/web/20201007221013/https://www.theguardian.com/world/2015/apr/22/eu-borders-chief-says-saving-migrants-lives-cannot-be-priority-for-patrols]
In mid-2015, after the consequences of this policy unfolded in the form of 1,200 deaths in 1 week (the ‘Black Week of April’),1316CAMPBELL, Z., “Abandoned at Sea,” The Intercept, 01/04/2017, https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212943/https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/] para 99ff. the EU tripled Frontex’s budget for Triton to match what had once been spent on Mare Nostrum. This measure was adopted by the Council and the European Parliament based on a proposal by the Commission, and under the approval of some national Parliaments in accordance with special agreements concluded with EU institutions. Also Triton’s operational area was ‘significantly’ expanded up to 138 NM south of Sicily.1317Frontex, Frontex expands its Joint Operation Triton, 26/05/2015, https://frontex.europa.eu/media-centre/news-release/frontex-expands-its-joint-operation-triton-udpbHP, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214925/https://frontex.europa.eu/media-centre/news-release/frontex-expands-its-joint-operation-triton-udpbHP] In the 2015 to 2017 time period, a total of “347 vessels were intercepted and removed in the Mediterranean during the Triton maritime operations coordinated by [Frontex].”1318Parliamentary Questions, Answer given by Mr Avramopoulos on behalf of the European Commission, 08/11/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-003167-ASW_EN.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007215046/https://www.europarl.europa.eu/doceo/document/E-8-2018-003167-ASW_EN.html] An EU source revealed, “pull factors were the reason Frontex’ patrol zone for Triton was limited in 2014, and why Frontex and Italian ships still tended to stay far from Libya.”1319CAMPBELL, Z., “Abandoned at Sea,” The Intercept, 01/04/2017, https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212943/https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/] This was largely due to Rösler’s contributions.1320Interviewee I24
Yet the Fundamental Rights Officer questioned Frontex’s “sea surveillance operations” multiple times. The officer called on the “commitments to fulfill obligations related to the guarantee of protection of fundamental rights and the principle of non-refoulement […] in all relevant operational plans concerned, i.e.: Joint Operation [Triton ….] As matters of concern, the FRO repeatedly [drew] attention within the Agency to the following issues related to the preparation and the implementation of the aforementioned operations: Need to enhance the quality and comprehensiveness of the assessment as well as an update of the general situation in a third country; Lack of clarity and/or absence of clear methods for the assessment of personal circumstances of intercepted or rescued person to be disembarked, forced to enter, conducted or handed over to the authorities of a third country; Insufficient information/clarity in relation to procedures regarding identification and referral of persons with international protection needs and in a particularly vulnerable situation.”1321Frontex, Annual report on the implementation of Regulation (EU) 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, 2018, https://data.consilium.europa.eu/doc/document/ST-6294-2020-INIT/en/pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201101052743/https://data.consilium.europa.eu/doc/document/ST-6294-2020-INIT/en/pdf], p. 12.
In January 2018, operation Triton was replaced by operation Thémis, which further reduced its operational area, even compared to Triton. According to a source, Italian authorities did not want to get any closer to the Libyan coast,1322Interviewee I34 a position that had been completely abandoned once NGOs have started operating to bridge the SAR gap created by the EU, Frontex and Italy.
IIInvolvement in the Criminalization of NGOs
In December 2016, shortly before Italy concluded the pact with Libya, Frontex was the first to publicly suggest that NGOs were collaborating with human traffickers. Frontex’s position was critical in the launch of legal actions in Italy against NGOs.1323Interviewee I69 On 9 December 2016, a confidential biweekly report, authored by the Risk Analysis Unit, mentions the German NGO Life-Boat in connection with an incident that occurred in November 2016. Their boat, called Minden, was approached by another small boat flying a Libyan flag. While the crew on the Libyan boat pretended to be fishermen that had just rescued “migrants”, the latter later revealed that the fishermen were smugglers. Frontex immediately capitalized on this incident and framed it as “the first reported case where the criminal networks directly approached an EU vessel and smuggled the migrants directly into Europe using the NGO vessel.”1324Frontex, JO EPN Triton 2016 Biweekly Analytical Report, 09/12/2016, https://www.documentcloud.org/documents/3531244-Frontex-Triton-Analytical-Report-December-2016.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007222324/https://www.documentcloud.org/documents/3531244-Frontex-Triton-Analytical-Report-December-2016.html], p. 6.
This was the first time NGOs were associated with human trafficking, a framing that would serve as the backdrop of the criminalization campaign against NGOs with the intended result of further reducing rescue capacities on the Central Mediterranean. Bi-weekly reports, such as this one, were shared with Frontex’ partners, including Member States’ coastguard agencies. Through these reports the idea of a criminal collaboration between NGOs and human traffickers was spread.1325Interviewee I24 More allegations casting doubts over the role of NGOs can be traced back to confidential Frontex documents, which were then reported in the media.1326ROBINSON, D., “EU border force flags concerns over charities’ interaction with migrant smugglers,” Financial Times, 14/12/2016, https://www.ft.com/content/3e6b6450-c1f7-11e6-9bca-2b93a6856354, retrieved on 07/10/2020 [https://web.archive.org/web/20201007222652/https://www.ft.com/content/3e6b6450-c1f7-11e6-9bca-2b93a6856354]
Frontex raised the fact that NGOs operated very close to Libyan territorial waters; that when NGOs rescues increased significantly in June 2016, this coincided with a decrease of rescues initiated through a distress call from a satellite phone aboard the refugees and migrant boats directed to the Italian coastguard; that migrants appeared to be given clear indications about the route to follow to reach an NGO boat; that the NGOs were using powerful light beams to be seen from afar; and that people rescued by NGOs appeared unwilling to cooperate with anti-smuggling investigations by law enforcement officials and the NGOs staff themselves did not collect relevant evidence from refugees and migrant boats. The Frontex documents strongly implied that rescues were being carried out directly by NGOs with no coordination via the Italian coastguard and were therefore potentially pre-arranged between the NGOs and the smugglers. This charge has since been very publicly leveled against NGOs operating in the central Mediterranean by a number of different actors.1327Interviewee I21
No real evidence of these allegations was ever put forward and the purely humanitarian interventions ended up being unquestionably admitted. However, Frontex had an important role in elevating these accusations and poisoning the public debate over these issues, abusing the appearance of objectivity of its expertise.1328Interviewee I21 The campaign Frontex nourished took various forms. Even before the baseless elements were publicly picked up by other States and political actors, Frontex’s director Leggeri reiterated the accusations before the Italian Senate Defense Commission. The insinuative tone of his interventions nourished a skepticism that allowed him to establish a narrative without directly exposing him. Using euphemisms and suggestive understatements, he notably called it a ‘paradox’ that organizations performed so many search-and-rescue missions in the Mediterranean, “when the EU and Italy have never deployed that many public vessels into the sea: it’s quite strange.”1329Maccanico, M., et. al., “The shrinking space for solidarity with migrants and refugees:how the European Union and Member States target and criminalize defenders of the rights of people on the move,” Transnational Institute, September 2018, https://www.tni.org/files/publication-downloads/web_theshrinkingspace.pdf, retrieved on 07/06/2025 [https://web.archive.org/web/20250610040846/https://www.tni.org/files/publication-downloads/web_theshrinkingspace.pdf]
In February 2017, Leggeri gave interviews accusing NGOs of constituting pull-factors for individuals in Libya and of refusing to cooperate with law enforcement in their fight against smuggling and trafficking. In the same month, the public prosecutor of Catania, Carmelo Zuccaro, confirmed that his office had opened investigations with the goal of investigating NGOs’ methods as well as their financial resources to combat alleged collusion with smugglers.1330Amnesty International, Italy: Losing the moral compass: Innuendoes against NGOs which rescue lives in the central Mediterranean, 28/04/2017, https://www.amnesty.org/download/Documents/EUR3061522017ENGLISH.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007223057/https://www.amnesty.org/download/Documents/EUR3061522017ENGLISH.pdf], pp. 2-3. 1331VIVIANO, F. and ZINITI, A., “Contatti con scafisti, indagine sulle Ong,” La Reppublica, https://ricerca.repubblica.it/repubblica/archivio/repubblica/2017/02/17/contatti-con-scafisti-indagine-sulle-ong15.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007223438/https://ricerca.repubblica.it/repubblica/archivio/repubblica/2017/02/17/contatti-con-scafisti-indagine-sulle-ong15.html]
IIIInvolvement in Operation Sophia
Frontex’s involvement in Operation Sophia was never formalized. In fact, the European Parliament even wanted to prevent any cooperation between Frontex and Sophia, or information exchange between Sophia and Triton, though this was circumvented by the new Frontex regulation which enabled the exchange of strategic information and sharing of intelligence.1332Interviewee I49
A series of sources, however, reveals that Frontex was conducting its own training of the Libyan coastguards under the umbrella of the operation. A senior member of the Consultative Forum reported that Frontex started to train Libyan coastguards in 2016. The official focus of these trainings was border management, including fundamental rights training.1333Interviewee I21 A leading researcher also indicated that Frontex officers deployed under Sophia were suspected to be training the Libyan coastguards.1334Interviewee I9 Another corroboration was received from an EU official working at the Fundamental Rights Agency, who stated that Frontex was training the Libyan coastguards as part of operation Sophia.1335Interviewee I49 Finally, a member of the Management Board of Frontex confirmed that Frontex agents were training the Libyan coastguards under the cover of Sophia, adding that there were Operators/Liaison Officers from Frontex and Europol on the Sophia ships.1336Interviewee I30 A DG Home official further specified that Frontex agents participated in the training of the Libyan coastguards under Sophia, to “ensure that these were conducted in line with human rights standards and Frontex’s border surveillance standards.”1337Interviewee I49
IVCollaboration with Libya
The establishment of refoulement by proxies to Libya was a consequences of the 2012 European Court of Human Rights’ Hirsi judgment: Frontex and other EU institutions were in dialogue with the National Accord Government,1338Interviewee I30 and Frontex in particular pushed for the collaboration with Libya to ‘combat smuggling’.1339Interviewee I69
Contact between Libya and Frontex can be identified since 2014. Mission naval experts accompanied Libyan Naval Coast Guard experts to European Patrol Network meetings in Portugal and Warsaw. The mission facilitated a bilateral meeting between Libyan coastguard senior officials and Frontex in Warsaw in December 2014.1340Parliamentary questions, Answer given by Vice-President Mogherini on behalf of the Commission, 05/11/2015, https://www.europarl.europa.eu/doceo/document/E-8-2015-009840-ASW_EN.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007224016/https://www.europarl.europa.eu/doceo/document/E-8-2015-009840-ASW_EN.html]
In response to Frontex’ invitation to the first EU Coast Guard Cooperation Network meeting, Libya officially thanked Leggeri for the professionalism shown by his team “during the training period on board ITS San Giorgio” from 4 to 21 December 2016 under EUNAVFOR MED.1341EUNAVFOR MED Operation Sophia, Letter of Appreciation, letter correspondence between EUNAVFOR MED Commander and Fabrice Leggeri, 13/01/2017 [Annex 9], p. 3. The collaboration between Frontex and Libyan actors was also formulated by the EEAS, in the strategic review of 2016 which modified the mandate of Sophia.1342Interviewee I34 1343Frontex, Minutes of the 62nd Meeting of the Management Board 23 November 2016, https://www.statewatch.org/media/documents/news/2017/may/eu-frontex-mb-minutes-62nd-meeting.pdf, retrieved on 16/04/2021 [Annex 11] A 2017 Management Board meeting approved the Executive Director’s request for a mandate to negotiate with Libyan authorities. Sources believe Frontex wanted data from Libya in order to detect departures, and also to negotiate immunities for potential future deployment of staff there.1344Interviewee I10 1345Interviewee I68 1346Interviewee I71 A senior member of the Consultative Forum confirmed that Frontex was looking for contact with Libyan authorities because the agency desired a meaningful cooperation to share and receive information from Libyan authorities.1347Interviewee I21 According to this source, the planning of Frontex’ operations in the Mediterranean could only be facilitated through clear situational awareness of Libya.1348Interviewee I21 Another source stated noted that Frontex had vital “interests” in sustaining a cooperation with Libya to increase the importance of the agency itself.1349Interviewee I10
Likely aware of the burgeoning Frontex efforts to conclude a partnership with Libya, the Consultative Forum raised concerns about Frontex operations respecting fundamental human rights in regard to third country engagement in February 2017.1350Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 42. It particularly singled out Libya and stated that “a fundamental rights risk assessment [had] to be conducted before any Frontex engagement with third countries takes place, in particular with Libya.”1351Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 42.
Further demonstrating its concerns about third country cooperation, “the Forum emphasized that the Frontex codes of conduct were applicable to all participants in Frontex operations, including third country observers.”1352Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 42.
A senior member of the forum stated that the Forum always “warned” Frontex to respect their regulations, and to conduct risk assessments in third countries before cooperating.1353Interviewee I21 Frontex repeatedly acknowledged this but never launched any assessment, considering this not to be part of their mandate.1354Interviewee I21 Long discussions were also held with Leggeri, who had the power to terminate operations.1355Interviewee I21 This did not only concern Central Mediterranean: for example, the Consultative Forum called on the Executive Director to stop operations in Hungary years before public and State pressure forced the agency to do so, a demand Leggeri then refused, as, in his view, the red line was never crossed.1356Interviewee I21
Frontex allegedly contemplated training the Libyan coastguards because a similar project had worked well in Spain.1357Interviewee I24 Italy provided ships while the EU trained and paid the new coastguards, often recruiting them from among militias and smugglers.1358Interviewee I24 1359CAMPBELL, Z., “Abandoned at Sea,” The Intercept, 01/04/2017, https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/, retrieved on 07/10/2020 [https://web.archive.org/web/20201007212943/https://theintercept.com/2017/03/31/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/] 1360EEAS, EUBAM Libya Initial Mapping Report Executive Summary, 25/01/2017 [Annex 21], p. 44. Leggeri stated that Frontex was “now helping to train 60 officers of a possible future Libyan coastguard. But that is at best a start. We can work towards a medium-term solution with Libya.”1361BEWARDER, M. and WALTER, L., “Rettungseinsätze vor Libyen müssen auf den Prüfstand,” Die Welt, 27/02/2017, https://www.welt.de/politik/deutschland/article162394787/Rettungseinsaetze-vor-Libyen-muessen-auf-den-Pruefstand.html, retrieved on 07/10/2020 [https://web.archive.org/web/20201007224725/https://www.welt.de/politik/deutschland/article162394787/Rettungseinsaetze-vor-Libyen-muessen-auf-den-Pruefstand.html] Although official discourse focused on these issues and often pretended the training was only motivated by human rights and international law necessities, Frontex’ training slides for the Libyan coastguards only included one slide on human rights. Indeed, among “a total of 20 documents – including a video – released, only 0,5% of the content [was] dedicated to ensuring the protection of human rights.”1362IZUZQUIZA, L., “Disclosed documents reveal that EU training of Libyan Coast Guard makes negligible reference to human rights protection,” Access Info Europe, 30/11/2017, https://www.access-info.org/blog/2017/11/30/disclosure-of-documents-used-by-eu-in-trainings-to-libyan-coast-guard-show-negligible-focus-on-protection-of-human-rights/, retrieved on 08/10/2020 [https://web.archive.org/web/20201007225226/https://www.access-info.org/blog/2017/11/30/disclosure-of-documents-used-by-eu-in-trainings-to-libyan-coast-guard-show-negligible-focus-on-protection-of-human-rights/]
Gravely concerned with these developments, Frontex’ Consultative Forum on Fundamental Rights questioned in December 2018 the cooperation between the Libyan coastguards and Frontex.1363Interviewee I21 Before the Forum, Frontex had always claimed that there were no contacts with the Libyan coastguards because of a lack of a negotiating partner. Although the Consultative Forum was not opposing negotiations, it stated that there had to be a risk assessment before negotiating with a third country.1364Interviewee I21 Ultimately, negotiations were concluded and no fundamental rights risk assessment was ever done.1365Interviewee I21
In reality, Frontex was always in contact with offices and staff of the Libyan coastguards as they were involved in training the coastguards.1366Interviewee I21 The larger “issue” for Frontex was that they were unable to negotiate the kind of agreement on a framework for information exchange or any sort of material cooperation regarding “migration control.”1367Interviewee I21 Frontex would have entered a much broader agreement and cooperation with Libyan authorities if Libya had had the institutional capacities. The widespread reports of systematic abuse of and violence against “migrants” in Libya amounting to crimes against humanity were never a consideration in Frontex’s Libya plans and the resulting policy of ‘refoulement by proxy’.
VEstablishment of the MRCC “Tripoli”
In June 2017 the “Aurora project” was launched under Italian supervision. The first phase of the Aurora project consisted of a study which aimed at assessing the capabilities of the LYCG to conduct SAR operations.1368European Parliament, Answer given by Mr Hahn on behalf of the European Commission, 20/05/2019, https://www.europarl.europa.eu/doceo/document/E-8-2019-000190-ASW_EN.html, retrieved on 14/07/2024 [https://web.archive.org/web/20240714115013/https://www.europarl.europa.eu/doceo/document/E-8-2019-000190-ASW_EN.html] The European Commission requested and funded the project through the allocation of internal emergency funds, and the Italian Coast Guard promoted it. The aim was to conduct a feasibility study to assist the Libyan Authorities with establishing a Maritime Rescue Coordination Centre (MRCC) in Tripoli and requesting the international maritime organization (IMO) to recognize to a Libyan Search and Rescue (SAR) zone.
The EU sought to legalize the unlawful operation of the LYCG for the purpose of delegating the attack against the targeted group. Cloaking search, capture and refoulement operations as search, rescue and safe disembarkation activities, allowed the EU to present its policy not as a breach of the absolute prohibitions on refoulement and torture but as compliance with maritime law obligation to assist people in distress at sea. Establishing an MRCC in Libya was therefore one of the final steps leading to a legal cover up of EU’s 2nd policy to intercept and forcibly transfer to Libya the survivors of EU’s 1st policy of mass killings by drowning.
An international meeting related to the “Libyan Maritime Rescue Coordination Centre Project” took place on the premises of Frontex on 10 October 2017. The Team Leader, Rear Admiral Nicola Carlone, chaired the meeting, and Frontex was represented by Executive Director Fabrice Leggeri and his staff. Other participants included Mr. Goetz Brinkmann, Head of the International and European Cooperation Unit; Mr. Pedro Matos, External Relations Officer, International and European Cooperation Unit; Mr. Georgios Vourekas, Head of Sea Border Sector; and Mr. Brice Caldairou, Coordinating Officer Sea Border Sector, Joint Operations Unit. The Project Leader thanked Frontex for its support of Search and Rescue operations in the Central Mediterranean. Then, the Project and its aims were outlined, in consideration of identifying areas of common interest which could lead to future cooperation.1369Frontex, Assessment of Libyan Coast Guard Legal Framework and Capability in terms of SAR Services, 10/10/2017, https://www.guardiacostiera.gov.it/stampa/Documents/2017-10-10-varsavia.pdf, retrieved on 16/04/2021 [https://web.archive.org/web/20250315193835/https://www.guardiacostiera.gov.it/stampa/Documents/2017-10-10-varsavia.pdf]
After the conclusion of the study in January 2019, Italy subsequently received 45 million euros from the EUTF North Africa Window project “Support to Integrated Border and Migration Management in Libya, first phase” to develop a MRCC in Tripoli, with the intention of establishing it by 2020 at the latest.1370European Parliament, Answer given by Mr Hahn on behalf of the European Commission, 20/05/2019, https://www.europarl.europa.eu/doceo/document/E-8-2019-000190-ASW_EN.html, retrieved on 14/07/2024 [https://web.archive.org/web/20240714115013/https://www.europarl.europa.eu/doceo/document/E-8-2019-000190-ASW_EN.html] To date, no functioning MRCC is operating in Libya.
VISeahorse Network and EUROSUR
As previously noted, Frontex was an active participant in the creation and execution of the Seahorse Mediterranean project, aiming to build the capacities of the LYCG and connect Libya to a European maritime surveillance network for the purpose of “securing” the borders.
Frontex was one of Spain’s cooperation partners in the series of Seahorse Operations that preceded the more consolidated Seahorse Project. These operations consisted of “transnational police coordination operations focused on detecting and stopping irregular migration from West African countries.”1371CASAS-CORTES, M., COBARRUBIAS, S. and PICKLES, J., “’Good neighbours make good fences’: Seahorse operations, and the Implementations of the EU Strategy of Migration Routes Management in North and West Africa,” 2014 European Urban and Regional Studies, 23(3) https://journals.sagepub.com/doi/abs/10.1177/0969776414541136, retrieved on 16/6/2025 Acting as the blue print for the later externalization of border control, these operations constituted “initial experiments in a multi-partner state series of joint patrols by border and coast guards, police training missions, and donations of equipment.”1372CASAS-CORTES, M., COBARRUBIAS, S. and PICKLES, J., “’Good neighbours make good fences’: Seahorse operations, and the Implementations of the EU Strategy of Migration Routes Management in North and West Africa,” 2014 European Urban and Regional Studies, 23(3) https://journals.sagepub.com/doi/abs/10.1177/0969776414541136, retrieved on 16/6/2025 This was subsequently accompanied by the development of a communication network “via secure satellite networks.”1373CASAS-CORTES, M., COBARRUBIAS, S. and PICKLES, J., “’Good neighbours make good fences’: Seahorse operations, and the Implementations of the EU Strategy of Migration Routes Management in North and West Africa,” 2014 European Urban and Regional Studies, 23(3) https://journals.sagepub.com/doi/abs/10.1177/0969776414541136, retrieved on 16/6/2025 Eventually, to ensure the sustainability of this system, a number of “Seahorse Cooperation Centres” were built to connect all participating countries.1374CASAS-CORTES, M., COBARRUBIAS, S. and PICKLES, J., “’Good neighbours make good fences’: Seahorse operations, and the Implementations of the EU Strategy of Migration Routes Management in North and West Africa,” 2014 European Urban and Regional Studies, 23(3) https://journals.sagepub.com/doi/abs/10.1177/0969776414541136, retrieved on 16/6/2025
Frontex operations Indalo and Hera were executed in cooperation with Spain as part of the Seahorse framework,1375Interviewee I10 1376CASAS-CORTES, M., COBARRUBIAS, S. and PICKLES, J., “’Good neighbours make good fences’: Seahorse operations, and the Implementations of the EU Strategy of Migration Routes Management in North and West Africa,” 2014 European Urban and Regional Studies, 23(3) https://journals.sagepub.com/doi/abs/10.1177/0969776414541136, retrieved on 16/6/2025 and this model was later repeated in Libya.1377Interviewee I24 The Member States expressed the need to organize operational support at EU maritime borders, and a year after the launch of Operation Hera (2007) the European Patrols Network (EPN), the first EU project to implement permanent structures for combined surveillance of the Mediterranean by Frontex and Member States, was created.1378Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] At that point, information was shared between Member States’ patrols which were operating for Frontex.1379Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H] One of the objectives of this system was to “tackl[e] illegal immigration.”1380Frontex, European Patrols Network, 24/05/2007, https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084102/https://frontex.europa.eu/media-centre/news-release/european-patrols-network—Weca9H]
The Seahorse Project then launched in 2013 and concluded in 2019 with continued involvement of Frontex. As part of its Steering Group, Frontex met regularly with the coordination partners to follow up on the progress of the training of the LYCG. It seems that the LYCG itself attended at least one European Patrols Network meeting in March 2016. Leggeri and Berndt Körner expressed their appreciation to the Naval Coast Guard of Libya and invited the Libyan coastguards to the meeting “in order to continue our cooperation.” Leggeri further stated that he “acknowledges the important role that Libya is in (…) prevent the irregular migration flows towards the EU.” A few months later in September 2016, the EPN was transformed into the European Border and Coast Guard Cooperation Network. Half a year later, a Steering Group meeting in February 2017 included representatives from partner Member States (Cyprus, France, Greece, Italy, Malta, Portugal), Frontex, EMSA, DG NEAR, DG DEVCO and representatives from the Libyan coastguards such as Admiral Abdallah Toumia, Commander of the Libyan coastguards and Port Security.1381DG HOME, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 08/10/2020 [https://web.archive.org/web/20201008084748/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en]
Frontex further played an instrumental part in the push to connect Libya to EUROSUR in terms of building the Libyan authorities’ surveillance capacities, working towards the establishment of a MRCC, and actively advocating for necessary changes in legislation.
EUROSUR’s founding regulation emphasized that this kind of cooperation should be “in full compliance […] with the principle of non-refoulement”.1382The European Parliament and The Council of The European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), 06/11/2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.295.01.0011.01.ENG&toc=OJ:L:2013:295:TOC, retrieved on 07/10/2020 [https://web.archive.org/web/20201007084650/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.295.01.0011.01.ENG&toc=OJ%3AL%3A2013%3A295%3ATOC] preambular paragraph 15. One of the main obstacles to facilitating access, therefore, was rooted in the regulation governing EUROSUR which explicitly prohibits complete access by third countries, although it allegedly does allow access to defined “regional networks, such as the Seahorse Mediterranean network.”1383Parliamentary Questions, Answer given by Mr Avramopoulos on behalf of the European Commission, 21/12/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html, retrieved on 08/10/2020 [https://web.archive.org/web/20201008090346/https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html] 1384Parliamentary questions, Answer given by Mr Avramopoulos on behalf of the Commission, 30/03/2017, https://www.europarl.europa.eu/doceo/document/E-8-2017-000223-ASW_EN.html, retrieved on 08/10/2020 [https://web.archive.org/web/20201008092507/https://www.europarl.europa.eu/doceo/document/E-8-2017-000223-ASW_EN.html]
Unsatisfied with this slowing down of the project, Frontex Director Fabrice Leggeri wrote a letter to Austria’s Interior Minister Herbert Kickl - occurring during the time of Austria’s European Council Presidency - on 16 July 2018 and advocated for a change of regulation to enable them to start sharing surveillance data with Libyan coastguard forces.1385Frontex, Annual report on the implementation of Regulation (EU) 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, 2017, http://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007094650/https://data.consilium.europa.eu/doc/document/ST-11129-2018-INIT/en/pdf], p. 15.
Frontex saw in the Austrian Presidency an opportunity to increase its capacities of border control and instrumentalized it to advance its extremist policies. Shortly after in September 2018, the European Commission was discussing such a change of regulation, including permitting Frontex to share surveillance data with third countries.1386European Commission, Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council, 12/09/2018, https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF, retrieved on 07/10/2020 [https://web.archive.org/web/20201007210927/https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-2018-631-F1-EN-MAIN-PART-1.PDF], p. 3.
Two months later, the German government responded to an inquiry by an opposition party that Libya was to be connected to the Seahorse Mediterranean Network by the end of that year.1387Deutscher Bundestag, Schriftliche Fragen mit den in der Woche vom 26. November 2018 eingegangenen Antworten der Bundesregierung, 30/11/2018, http://dipbt.bundestag.de/doc/btd/19/062/1906212, retrieved on 08/10/2020 [https://web.archive.org/web/20201008093007/http://dipbt.bundestag.de/doc/btd/19/062/1906212.pdf], p. 3. Until 2023, however, it seems that no agreement was concluded due to the “lack of interest of the North African countries to cooperate,” according to the European Commission.1388European Parliament, Answer given by Ms Johansson on behalf of the European Commission, 03/01/2024, https://www.europarl.europa.eu/doceo/document/E-9-2023-002882-ASW_EN.html, retrieved on 14/07/2024
VIIMultipurpose Aerial Surveillance (MAS)
The European Border Surveillance System (EUROSUR) has been supplied with aerial surveillance from its inception in 2013,1389“Europa setzt neues System an seinen Grenzen ein: Eurosur startet,” Heise Online, 01/12/2013, https://www.heise.de/newsticker/meldung/Europa-setzt-neues-System-an-seinen-Grenzen-ein-Eurosur-startet-2058328.html, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095304/https://www.heise.de/newsticker/meldung/Europa-setzt-neues-System-an-seinen-Grenzen-ein-Eurosur-startet-2058328.html] but that at that point in time the EU did not want to deploy drones for aerial surveillance.1390“Europa setzt neues System an seinen Grenzen ein: Eurosur startet,” Heise Online, 01/12/2013, https://www.heise.de/newsticker/meldung/Europa-setzt-neues-System-an-seinen-Grenzen-ein-Eurosur-startet-2058328.html, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095304/https://www.heise.de/newsticker/meldung/Europa-setzt-neues-System-an-seinen-Grenzen-ein-Eurosur-startet-2058328.html] This position drastically changed in 2015/16, when the EU started testing drones for surveillance purposes which was facilitated by a collaboration with the European Maritime Safety Agency (EMSA).[1]
This aspect of EUROSUR was formalized in June 2017, when Multipurpose Aerial Surveillance (MAS) was added to the EUROSUR Fusion services.1391General Secretariat of the Council, Frontex report on the functioning of Eurosur - Part I, 15/02/2018, http://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095517/https://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf], p. 16. MAS at the time comprised “the collection of data and a full motion video by means of sensor installed on an aircraft, which are livestreamed to the European Monitoring Team at Frontex.”1392General Secretariat of the Council, Frontex report on the functioning of Eurosur - Part I, 15/02/2018, http://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095517/https://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf], p. 16. This enabled EUROSUR to improve the situational picture and include “real time in-situ data.”1393General Secretariat of the Council, Frontex report on the functioning of Eurosur - Part I, 15/02/2018, http://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095517/https://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf], p. 16.
Frontex’s shift to drones was part of an apparent effort to “monitor the Mediterranean without being pulled into rescue missions that put migrants to European shores” and has been described as “a way to spend money without having the responsibility to save lives.”1394“EU slammed over use of drones in refugee effort,” Impact, 14/08/2019, https://amesnews.com.au/latest-articles/eu-slammed-over-use-of-drones-in-refugee-effort/, retrieved on 08/10/2020 [https://web.archive.org/web/20201008102233/https://amesnews.com.au/latest-articles/eu-slammed-over-use-of-drones-in-refugee-effort/]
Frontex shifted from ships to planes to avoid physical presence in the relevant search and rescue zone,1395Interviewee I10 1396Interviewee I68 has hidden its aerial plans and took on an executive role, which made attribution of legal responsibility for its unlawful actions more difficult.1397Interviewee I10 1398Interviewee I68
The Frontex drones were not meant to be used for sea rescue operations, but to improve capacities against unwanted migration and interception capacities of Frontex partners, starting with LYCG. Ruben Neugebauer, a member of the German NGO Sea-Watch, which has been providing assistance in the Central Mediterranean with various ships since 2015, stated that “Frontex is not concerned with saving lives… While air surveillance is being expanded with aircraft and drones, ships urgently needed for rescue operations have been withdrawn.” In an attempt to lessen the consequences of Frontex new policies, Sea-Watch demanded that situation pictures of EU drones be made available to private organizations for sea rescue.1399MONROY, M., “Drones for Frontex: unmanned migration control at Europe’s borders,” Statewatch, 02/2020, http://www.statewatch.org/analyses/no-354-frontex-drones.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008101956/https://www.statewatch.org/media/documents/analyses/no-354-frontex-drones.pdf], p. 2. To no avail.
The images taken by EMSA drones were and remain evaluated by the competent national coastguards, in parallel to their live streaming to the Warsaw headquarters.1400General Secretariat of the Council, Frontex report on the functioning of Eurosur - Part I, 15/02/2018, http://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095517/https://data.consilium.europa.eu/doc/document/ST-6215-2018-INIT/en/pdf], p. 15-16. According to the new Frontex Regulation, the border agency is now allowed to cooperate with third countries and the information collected can therefore also directly be made available to authorities in North Africa. In order to share general information on surveillance of the Mediterranean Sea with a non-EU state, Frontex is obliged to, inter alia, first conclude a working agreement with the corresponding government.
Frontex offered MAS services to Member States, with Italy being the first to adopt them. Unlike Operation Themis, whose SAR patrol zone is limited to 44 km off the Italian coast,1401SCHERER, T., “In new EU sea mission, ships not obliged to bring migrants to Italy,” Reuters, 02/02/2018, https://www.reuters.com/article/world/in-new-eu-sea-mission-ships-not-obliged-to-bring-migrants-to-italy-idUSKBN1FL62J/, retrieved on 14/06/2025 MAS operates over a much broader area. Evidence indicates that MAS covers the entire Central Mediterranean, an estimated 500,000 km²,1402Frontex, Operations, https://www.frontex.europa.eu/what-we-do/operations/search-and-rescue/?utm_source=chatgpt.com, retrieved on 14/06/2025 [https://web.archive.org/web/20250602162713/https://www.frontex.europa.eu/what-we-do/operations/search-and-rescue/] including the Libyan SAR zone (174 km of its coast).1403GARCIA-CARRIAZO, J., “Small Island, Big Issue: Malta and its Search and Rescue Region – SAR” 2019, Journal of International La wand International Relations, 7, https://portal.amelica.org/ameli/journal/474/4742149010/4742149010.pdf?utm_, retrieved on 14/06/2025, p. 305. This is supported by its documented role in assisting Libyan authorities with SAR operations1404Civil MRCC, From Libya to Tunisia: How the EU is Extending the Push-Back Regime by Proxy in the Central Mediterranean, 21/01/2024, https://civilmrcc.eu/from-libya-to-tunisia-how-the-eu-is-extending-the-push-back-regime-by-proxy-in-the-central-mediterranean/, retrieved on 14/06/2025 [https://web.archive.org/web/20250131015253/https://civilmrcc.eu/from-libya-to-tunisia-how-the-eu-is-extending-the-push-back-regime-by-proxy-in-the-central-mediterranean/] and in monitoring coastal regions off Tunisia.1405Interviewee I11 1406SCANDURA, S., Twitter, 14/05/2020, https://twitter.com/scandura/status/1260872261852160000, retrieved on 08/10/2020 [https://web.archive.org/web/20201008095804/https://twitter.com/scandura/status/1260872261852160000]
The Consultative Forum regularly asked Frontex how the information from the aerial surveillance (MAS) was being processed.1407Interviewee I21 It further requested Frontex to stop sharing the information with Tripoli in order to stop pull backs. Frontex always responded by claiming it was merely sharing the information and was unaware of how the MRCC Tripoli used the information.1408Interviewee I21
Frontex alone spent more than 35 million euros on air assets in 2019,1409HOWDEN, D., FOTIADIS, A. and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 11/08/2024 [https://web.archive.org/web/20240430092921/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] and EU’s resources were systematically used as “the eyes and ears of a Libyan interception force” routinely orchestrating pull backs.1410HOWDEN, D., FOTIADIS, A. and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 11/08/2024 [https://web.archive.org/web/20240430092921/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal] In 2022, in its tenth Annual Report, the Consultative Forum expressed concerns over Frontex’s systematic sharing of coordinates with the Libyan Coast Guard, which in about 50% of cases led to interceptions in international waters and returns to Libya, where migrants face arbitrary detention, torture, and other serious human rights violations, potentially breaching the EU Charter’s prohibition of refoulement.1411Frontex, “Consultative Forum on Fundamental Rights 2022” 2022 [Annex 17], p. 73.
Mens Rea of EU Commission’s and Frontex’s Most Senior Officials
In February 2019, Frontex Director Fabrice Leggeri wrote a letter to the Director General of DG Home, Paraskevi Michou. There was no apparent reason for doing so, and yet the letter reads as a warning or a calculated attempt to shift or share potential criminal liability related to the policy described in the letter from Leggeri to Michou and from Frontex to the Commission, by flagging the matter in writing:
“…Direct exchanges of operational information with the MRCC [Maritime Rescue Coordination Centre] Libya about search and rescue cases may trigger interventions of the Libyan coastguard…The development of a Libyan coastguard is funded as you know by the European Union. Nevertheless, the commission and in general institutions may face questions of a political nature as a consequence of the SAR-related operational exchanges of information.”1412HOWDEN, D., FOTIADIS, A. and CAMPBELL, Z., “Revealed: the great European refugee scandal,” The Guardian, 12/03/2020, https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal, retrieved on 11/08/2024 [https://web.archive.org/web/20240430092921/https://www.theguardian.com/world/2020/mar/12/revealed-the-great-european-refugee-scandal]
First, the letter reveals that Leggeri had full awareness of the factual situation on the ground and specifically the joint operation of Frontex and para-state Libyan entities; Second, Leggeri manifests full awareness of the fact that these Libyan entities were developed by and are operating under the aegis of the European Commission; Third, Leggeri manifests full awareness of the at minimum unlawfulness if not criminality of this joint operation, and the liability that may arise and be attributed to Frontex, the Commission, and their respective agents, as a result of this joint criminal enterprise.
Leggeri acknowledges the direct nature of the collaboration, communication and exchange of operational information between the agency under his direction and Libyan para-state entities. He describes the Libyan entity on land as ‘MRCC’ although he knows there is no MRCC Libya.1413Spinelli, B., “Themis, la nuova missione di Frontex, restringe il limite operativo delle responsabilità italiane” Barbara Spinelli, 27/03/2018, https://barbara-spinelli.it/2018/03/27/themis-la-nuova-missione-frontex-restringe-limite-operativo-delle-responsabilita-italiane/, retrieved on 06/10/2025 [https://web.archive.org/web/20250929145114/https://barbara-spinelli.it/2018/03/27/themis-la-nuova-missione-frontex-restringe-limite-operativo-delle-responsabilita-italiane/] 1414DAVIES, L., NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] para 307. But he also knows that the operation of a competent MRCC is a precondition for recognizing the country’s SAR zone under International Maritime Law. And he also knows that since Italy requested the IMO to recognize a Libyan SAR zone in December 2017,1415Calvo-Marisca, L., “Cooperation Initiatives by Member States with Third Countries for the Control of Migratory Flows: The Case of the Memorandum between Malta and Libya.” (2022) Jean Monnet Network on EU Law Enforcement Working Paper Series, https://jmn-eulen.nl/wp-content/uploads/sites/575/2022/05/WP076E1.pdf, retrieved on 25/05/2024 [https://web.archive.org/web/20230112060317/https://jmn-eulen.nl/wp-content/uploads/sites/575/2022/05/WP076E1.pdf], p. 3. the EU has failed to establish one.1416European Parliament, “Answer Given by Mr Várhelyi on behalf of the European Commission,” 13/04/2022, https://www.europarl.europa.eu/doceo/document/E-9-2022-000593-ASW_EN.html, retrieved on 25/04/2025 [https://web.archive.org/web/20220421034014/https://www.europarl.europa.eu/doceo/document/E-9-2022-000593-ASW_EN.html] 1417European Parliament, “Answer given by Mr Avramopoulos on behalf of the European Commission,” 04/09/2018, https://www.europarl.europa.eu/doceo/document/P-8-2018-003665-ASW_EN.html#def1, retrieved on 25/04/2025 [https://www.europarl.europa.eu/doceo/document/P-8-2018-003665-ASW_EN.html] Further, he knows that absent a recognized SAR zone, ordering Libyan para-state entities to orchestrate SAR operations in international waters is unlawful, even without taking into account the criminal consequences his letter is implicitly warning of, i.e. the undisputed crimes against humanity to which the ‘rescuees’ are exposed to and more broadly the unlawfulness of conducting refoulement to Libya after Hirsi.
Leggeri is aware that Frontex is transmitting information without which the capture of the asylees would not have been possible. Leggeri is also aware that the receiver of this information is not an MRCC that is tasked with search, rescue and safe disembarkation of all people in distress at sea. Leggeri is also aware that such collaboration is leading to ‘interventions’ of Libyan entities that cannot be considered as a national coast guard or rescue ‘units’ within the meaning of international maritime law. Leggeri is also aware that the so-called Libyan coastguard is composed of various militias that are tasked not with search and rescue but rather with capture and refoulement. This is why Leggeri reminds his addressee that this entity with which Frontex operates was developed by the European Union. By doing so, Leggeri exposes not only his but also Michou’s mens rea (“as you know”).
To sum, Leggeri reveals full awareness of the criminality of the exchange of information between Frontex and the so-called ‘MRCC Libya’, the development of the so-called ‘Libyan Coastguard’ by the European Union, and the fact that Frontex’s operation results in interventions of Libyan militias. Leggeri seems to suggest that although the liability is arising from Frontex’s exchange of operational information related to so-called SAR activities, the most responsible institution within the EU is not Frontex but the Commission, i.e., not the agency collaborating with the Libyan militias but the one that ‘developed’ them and then instructed Frontex to collaborate with them. Leggeri puts together this letter to ensure not only the executants but also the orchestrators of this policy would be at risk of prosecution: aware of the criminality of his policy, the letter is intended to incriminate the Commission in Frontex’s stead, or at least together with it.
Michou was quick to reject this criminalization attempt by responding to Legerri on 18 March 2019. This rejection however achieved Leggeri’s alleged purpose: it revealed Michou’s mens rea of the situation on the ground, and specifically of the fact that Frontex notifies the Libyan Coast Guard of sightings of ‘migrant’ boats in allegedly in distress at sea: “The procedure outlined in your letter to communicate sightings of, as well as initial actions regarding, "distress" situations directly to [the Libyan MRCC], constitutes a procedure that is in line with the provisions of the Hamburg Convention of 1979.”1418MICHOU, P., Letter to Fabrice Leggeri, 18/03/2019, http://www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008100258/https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019%291362751%20Rev.pdf]
As part of her effort to legitimize the policy Leggeri’s warned about, Michou reveals that not only Frontex but also the two other key actors in the Central Mediterranean - Italy and Operation Sophia - are participating in this criminal activity of this search, capture, abduction, forced transfer/deportation to and abuse in Libya.
Michou emphasized in this context that Italy’s involvement is not obligatory but voluntary. It is not complying as a coastal state with its duties under maritime law but rather exercising extraterritorial border control. In addition, Michou corroborated the abovementioned argument, namely that the so-called MRCC Libya is dysfunctional and incompetent: To coordinate interception operations cloaked as rescue missions, Michou admits, the alleged ‘MRCC’ must communicate with Italy and exchange information with Frontex:
“Despite the fact that it cannot be considered a ‘neighboring MRCC’ because it does not border the Libyan SRR,” not only Frontex but also the EU Member State Italy “is supporting the Libyan Coast Guard a lot in particular in acting during the SAR event as a ‘communication relay’.”1419MICHOU, P., Letter to Fabrice Leggeri, 18/03/2019, http://www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008100258/https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019%291362751%20Rev.pdf] The letter also revealed that the aerial assets of Operation Sophia had shared similar information with Libyan para-state entities.1420MICHOU, P., Letter to Fabrice Leggeri, 18/03/2019, http://www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008100258/https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019%291362751%20Rev.pdf]
To conclude, Legerri, just as the interim Executive Director that entered office after his resignation, was well aware of both the data sharing policy with the Libyan MRCC and the Coast Guard and the ‘questions’ – of legal rather than political nature - this policy arises. Leggeri perceives this policy as a form of border control, his successor, Hans Leijten claims it is “necessary” in order to save lives – but none of them disputes its existence, its consequences, and the simple fact that non-refoulement is an absolute obligation, namely one that cannot be balanced against another value or interest, such as the protection of human lives.1421Murray, S., “I wish I didn’t have to send people back to Libya, Frontex chief tells Euronews,” Euronews, 25/04/2025, https://www.euronews.com/my-europe/2025/04/25/i-wish-i-didnt-have-to-send-people-back-to-libya-frontex-chief-tells-euronews, retrieved on 24/05/2025 [https://web.archive.org/web/20250425082310/https://www.euronews.com/my-europe/2025/04/25/i-wish-i-didnt-have-to-send-people-back-to-libya-frontex-chief-tells-euronews]
In fact, the content of the letter – the policy of Frontex-LYCG data sharing - was known not only to high-level officials such as Leggeri or Michou but to countless EU and Frontex officials. They were always aware, publicly admitted and at times even boasted this practice, despite being aware of its illegality. This is why there is no explanation for sending the letter other than having a proof in writing that the Commission was aware of this policy, and so, if Frontex is prosecuted, so is the Commission.1422Murray, S., “I wish I didn’t have to send people back to Libya, Frontex chief tells Euronews,” Euronews, 25/04/2025, https://www.euronews.com/my-europe/2025/04/25/i-wish-i-didnt-have-to-send-people-back-to-libya-frontex-chief-tells-euronews, retrieved on 24/05/2025 [https://web.archive.org/web/20250425082310/https://www.euronews.com/my-europe/2025/04/25/i-wish-i-didnt-have-to-send-people-back-to-libya-frontex-chief-tells-euronews] 1423Fallon, K., “EU border agency accused of serious rights violations in leaked report” The Guardian, 14/10/2022, https://www.theguardian.com/global-development/2022/oct/14/eu-border-agency-frontex-human-rights-violations-report, retrieved on 31/05/2025 [https://web.archive.org/web/20250531044215/https://www.theguardian.com/global-development/2022/oct/14/eu-border-agency-frontex-human-rights-violations-report]
In 2020, Vice-President Borrell, on behalf of the Commission, stated that:
“there was no operational information provided by Frontex to the Libyan coastguard in the framework of operations covered by Regulation (EU) No 656/2014 given that it applies to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency. However, in the framework of the Eurosur Fusion Service — Multipurpose Aerial Surveillance (MAS) is performed. During the execution of MAS in the pre-frontier area (since 2017 up to 20 November 2019), when Frontex detected a distress situation in the Libyan Search and Rescue Region, the Agency provided notice in 42 cases to the neighbouring Member State Rescue Coordination Centre, to EUNAVFOR MED as well as to Libyan authorities.”1424Parliamentary questions, Answer given by Vice-President Borrell on behalf of the European Commission, 08/01/2020, https://www.europarl.europa.eu/doceo/document/E-9-2019-002654-ASW_EN.html, retrieved on 08/10/2020 [https://web.archive.org/web/20201008093325/https://www.europarl.europa.eu/doceo/document/E-9-2019-002654-ASW_EN.html]
An investigative report published in 2021 revealed the devastating results of these long-planned efforts: Frontex systematically provides the coordinates of boats carrying migrants to the LYCG. The findings also showed that these interceptions often lead to the LYCG entering Member States’ SAR zones and cause more drownings because of intentionally delayed “rescues.”1425“How Frontex helps migrants back to Libyan Torture Camps,” SPIEGEL International, 29/04/2021, https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83, retrieved on 14/07/2024 [https://web.archive.org/web/20250330002323/https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83] Additional journalistic investigations and IGOs and NGOs reports documented the information exchange between Frontex and the LYCG.1426Human Rights Watch, EU: Frontex Complicit in Abuse in Libya, 12/12/2022, https://www.hrw.org/news/2022/12/12/eu-frontex-complicit-abuse-libya, retrieved on 16/06/2025 [https://web.archive.org/web/20250618083243/https://www.hrw.org/news/2022/12/12/eu-frontex-complicit-abuse-libya?utm_] 1427Border Forensics, Airborne Complicity – Frontex Aerial Surveillance Enables Abuse, 12/12/2022, https://www.borderforensics.org/investigations/airborne-complicity/, retrieved on 16/06/2025 [https://web.archive.org/web/20250613145417/https://www.borderforensics.org/investigations/airborne-complicity/] 1428Lighthouse Reports, Frontex and the Pirate Ship, 11/12/2023, https://www.lighthousereports.com/investigation/frontex-and-the-pirate-ship/, retrieved on 16/06/2025 [https://web.archive.org/web/20250527181457/https://www.lighthousereports.com/investigation/frontex-and-the-pirate-ship/] 1429Sea-Watch e.V., Crimes of the European Border and Coast Guard Agency Frontex in the Central Mediterranean Sea, 12/05/2021, https://sea-watch.org/en/frontex_crimes/, retrieved on 16/06/2025 [https://web.archive.org/web/20250423172029/https://sea-watch.org/en/frontex_crimes/] In 2023, the UN unprecedentedly found the EU officials are aiding and abetting crimes against humanity against ‘migrants’ based on this collaboration in the Central Mediterranean route.1430UNHRC ‘Report of the Independent Fact-Finding Mission on Libya’ (3 March 2023) UN Doc. A/HRC/52/8 paras 4, 47-53. In 2024, front-LEX submitted a case to the CJEU against Frontex, seeking the termination of this policy on the basis of its unlawfulness under EU Law.1431Court of Justice of the European Union, Case T-511/24 (FM v Frontex), filed on 4 October 2024, https://eur-lex.europa.eu/TodayOJ/, retrieved on 28/03/2025
VIIIEUBAM Libya
EUBAM Libya is a civilian EU mission to support Libyan authorities in improving border management and security. It assists with coordinating efforts between Libyan agencies and with international partners. The mission also supports Libyan authorities and agencies that address cross-border crime, including human trafficking and terrorism. Its work includes assessments, training, and capacity-building in line with international standards.
It began its operations in May 2013, headed by Antti Hartikainen.1432Interviewee I55 Its launch occurred around the time as EUROSUR was formalized, Seahorse project was launched - all of which are projects whose explicit aim is to incorporate Libya and other third countries into the European surveillance networks.
Frontex reportedly assisted in its development, as well as the establishment of the EUBAM training programs, including the conception of the programs and providing material assistance.1433Global Legal Action Network, Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme, https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008094646/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 20. A Frontex officer was part of the initial EUBAM structure in 2013.1434Interviewee I55 In CFSP border assistance missions such as EUBAM, Frontex defined the parameters of border protection and management and ensured compliance with its human rights standards.1435Interviewee I49 The Frontex Evaluation Report of Triton in 2015 indicated that Frontex was proactively contacting Libyan authorities, “us[ing EUBAM Libya] as a bridge to get in contact with the relevant Libyan authorities.”1436Frontex, Frontex Evaluation Report 2015 [Annex 12]
In its Initial Mapping Report 2017, which was circulated to all delegations, EUBAM Libya documented that detainees in facilities run by both State authorities and armed groups were subjected to systematic torture and other ill-treatment,1437EEAS, EUBAM Libya Initial Mapping Report Executive Summary, 25/01/2017 [Annex 21], p. 35. without eliciting any revision of policy or action. The same Report demonstrated that, since the 2012 integration of militias into the Libyan Coast Guard, no Libyan Coast Guard personnel had received maritime or law-enforcement training except through ad hoc initiatives,1438EEAS, EUBAM Libya Initial Mapping Report Executive Summary, 25/01/2017 [Annex 21], p. 35. a central command, strategic planning, human-resources management, operational facilities, and functional training centers;1439EEAS, EUBAM Libya Initial Mapping Report Executive Summary, 25/01/2017 [Annex 21], p. 35. yet EU and Member States persisted in vesting it with exclusive SAR competence in its zone and in international waters.
At the 14th Consultative Forum in October 2017, the Forum brought up “Frontex’s increasing engagement with third countries… [to the] Frontex Liaison Officers to the western Balkan countries and to EUBAM Libya as well as with the Deputy Executive Director and the Chair of the Management Board.”1440Frontex Consultative Forum on Fundamental Rights, Fifth Annual Report,https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007093204/https://www.statewatch.org/media/documents/news/2018/may/eu-frontex-consultative-forum-on-fundamental-rights-report-2017.pdf], p. 42. The Frontex representative in EUBAM briefed them on what the representative perceived as the situation in Libya at that time. He essentially stated that it was too difficult to analyze the situation in Libya then and that he lacked a contact on the Libyan side, once again evidencing the awareness of Frontex officials to the highly volatile situation in Libya.1441Interviewee I21
Expanding its mission to training the Libyan General Administration for Coastal Security (GACS), EUBAM planned a “pilot training action” in cooperation with Frontex and Italy in October 2017. The project was led by Frontex, with Italy providing material support and training facilities, and EUBAM assisting Italian efforts and conceptualizing the training program.1442Global Legal Action Network, Complaint to the European Court of Auditors Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme, https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf, retrieved on 08/10/2020 [https://web.archive.org/web/20201008094646/https://www.asgi.it/wp-content/uploads/2020/04/GLAN-ASGI-ARCI-ECA-Libya-complaint-expert-opinion.pdf], p. 20. In early 2017, EUBAM had jointly drafted a “Training Catalogue” with the Libyan National Team for Border Management and Security.1443Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. The cooperation with Frontex was anticipated to generate donations to “Libyan beneficiaries.”1444Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. A first meeting between EUBAM, Italy, and Frontex occurred in March 2018 at which they approved the pilot training program for the GACS, to “complement in a coherent and holistic way already existing initiatives” and “strengthen the[ir] coastguard functions.”1445Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 2.
This “training action” was developed within the bilateral Italian-Libyan cooperation framework, financed by the EUTF, and envisioned to train 88 GACS personnel by 2020.1446Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. Additionally, the GACS were to receive a total of eight “repaired vessels”, three of which had already been handed over at that point.1447Frontex, Terms of Reference Joint Frontex-Italy-EUBAM Pilot Training Action in support of the Libyan General Administration for Coastal Security (GACS), 26/03/2018, https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf, retrieved on 08/11/2024 [https://web.archive.org/web/20250313180645/https://privacyinternational.org/sites/default/files/2021-10/Annex%2011.1_FRONTEX%20ToR%20Libya.pdf], p. 1. Frontex noted several times that this would be a test for future collaboration of the parties in Libya.
DKey Officials Involved
Post-2017 Frontex Officials
Executive Directors
Aina Kalnaja, Interim (2022 – 2023)
Hans Leijten (2023 – present)
Operations Division Director
Ana Cristina Jorge (2019 – present)
Head of Risk Analisys Unit
Carsten Simon (at least 2019 – present)
Head of Operational Planning and Evaluation Frontex
Kari Loukkaanhuhta (2019 – present)
EKey individuals
Suspects
-
Ana Cristina Jorge>
-
Béatrice Comby>
2015–2018
FrontexHead of Capacity Building Division
-
Berndt Körner>
2016–2021
FrontexDeputy Executive Director
-
Carsten Simon>
2019–Present
FrontexHead of Risk Analysis Unit
-
Dirk Vande Ryse>
2007–(unclear)
FrontexHead of Situation Centre
-
Fabrice Leggeri>
2015–2022
FrontexExecutive Director
-
Klaus Rösler>
2008–2019
FrontexDirector of Operation Division
-
Markku Mylly>
2012–2018
Executive Director
-
Thibault de la Hay Jousselin>
2105–2019
European CommissionChief of Cabinet of Leggeri
-
Gil Arias Fernández>
2006–2015
FrontexInterim Executive Director
Involved
-
Götz Brinkmann>
2017–unclear
FrontexDirector of the International and European Cooperation Division at Frontex
-
Ralf Göbel>
-
Kari Loukkaanhuhta>
2013–04/2017
European External Action Service (EEAS)Policy Officer/Strategic Planner in Integrated Strategic Planning Division of EEAS’ CMPD
01/2019–
FrontexHead of Operational Planning and Evaluation Frontex
-
Pedro Matos>
2017 – end date unclear
FrontexExternal Relations Officer, International and European Cooperation Unit Frontex
Related
- 1116The European Parliament and The Council of The European Union, Regulation (EU) No 1168/2011 of the European Parliament and of The Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 22/11/2011, https://eur-lex.europa.eu/eli/reg/2011/1168/oj, retrieved on 07/10/2020 [https://web.archive.org/web/20201007073318/https://eur-lex.europa.eu/eli/reg/2011/1168/oj] article 1(3).
- 1117Interviewee I10
- 1118Ibid.
- 1119Ibid.
- 1120UNYSIS, Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union ESBG, 16/06/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf, retrieved on 07/10/2020 [https://web.archive.org/web/20201007073717/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/border-crossing/docs/20141016_home_esbg_frp_001_esbg_final_report_3_00_en.pdf]
V
European Maritime Safety Agency (EMSA)
AExecutive Summary
The European Maritime Safety Agency (EMSA) was introduced by the European Commission to supposedly ensure a high level of maritime safety and security, combat maritime pollution and facilitate maritime traffic and transport. EMSA at times also aids EU neighboring countries to build capacity and expertise.
EMSA however is also another component in the EU’s Criminal Enterprise of deterrence-based policies of mass killing by drowning and the capture and shipment of survivors to camps where countless crimes against humanity are committed against them.
EMSA facilitates technical operations between Member States and the Commission for the exchange of EU vessel traffic information through SafeSeaNet (SSN), the long-range identification and tracking of vessels (LRIT), and to support EU operational reporting services, including the electronic transmission of reporting formalities.
EMSA provided assistance with border “management,” gave Frontex the means for its actions, participated in the meetings of the Task Force Mediterranean, in at least one Seahorse Project Steering Group meeting in February 2017, and assisted third countries’ authorities in building their capacities to perform proxy push\pull-backs under the guise of facilitating their ability to perform search and rescue, law enforcement and border control. It further provided surveillance data to the military operation EUNAVFOR MED Operation Sophia. Crucially, it contributed to the sharing of direct maritime surveillance data with the Libyan coastguard. Collected maritime surveillance data was used to orchestrate the systematic interception of boats carrying “migrants” by the Libyan coastguards.
EMSA individually and at the behest of the Commission (DG NEAR, possibly DG DEVCO) conducted the SafeMed III and IV projects providing technical assistance and training to Libyan maritime authorities to further develop their capacities to participate in the EU-orchestrated criminal enterprise.
EMSA’s crucial contributions to the criminal policies analyzed here consist of the capacity-building of the Libyan coastguards and, primarily, the provision of maritime surveillance data used to orchestrate ‘pushbacks by proxy.
BOrganizational Structure
Following the accident of the oil tanker “Erika” in 1999, the European Commission introduced the European Maritime Safety Agency (EMSA) as one of several maritime safety measures in 2002 (Regulation (EC) 1406/2002).1448European Commission, European Maritime Safety Agency (EMSA), 15/09/2020, https://ec.europa.eu/transport/modes/maritime/safety/emsa_en, retrieved on 15/09/2020 [https://web.archive.org/web/20200915133513/https://ec.europa.eu/transport/modes/maritime/safety/emsa_en] Its mandate has subsequently broadened over time (Regulation (EU) 100/2013). The agency was created to supposedly provide “technical, operational and scientific assistance to the European Commission in the fields of maritime safety, maritime security, prevention of, and response, to pollution caused by ships.”1449European Commission, European Maritime Safety Agency (EMSA), 15/09/2020, https://ec.europa.eu/transport/modes/maritime/safety/emsa_en, retrieved on 15/09/2020 [https://web.archive.org/web/20200915133513/https://ec.europa.eu/transport/modes/maritime/safety/emsa_en] It is further involved in “updating and developing new legislation, monitoring its implementation and evaluating the effectiveness of the measures in place.”1450European Commission, European Maritime Safety Agency (EMSA), 15/09/2020, https://ec.europa.eu/transport/modes/maritime/safety/emsa_en, retrieved on 15/09/2020 [https://web.archive.org/web/20200915133513/https://ec.europa.eu/transport/modes/maritime/safety/emsa_en] EMSA at times also provides assistance to EU neighboring countries to build “capacity” and expertise. Its headquarters are located in Lisbon.1451European Commission, European Maritime Safety Agency (EMSA), 15/09/2020, https://ec.europa.eu/transport/modes/maritime/safety/emsa_en, retrieved on 15/09/2020 [https://web.archive.org/web/20200915133513/https://ec.europa.eu/transport/modes/maritime/safety/emsa_en]
EMSA falls under the responsibility of the Directorate-General for Mobility & Transport. The Agency is composed of eleven units, ten of which are within four departments; Department 1: Sustainability & Technical Assistance; Department 2: Safety, Security & Surveillance; Department 3: Digital Services & Simplification; Department 4: Corporate Services. Until 2019, there were only three departments consisting of Corporate Services, Safety and Standards and Operations. These Departments report to both an Administrative Board as well as an Executive Director. In the relevant period, EMSA’s Executive Directors were consecutively Markku Mylly (2012 – December 2018) and Maja Markovčić Kostelac (January 2019 –). The Executive Director is supported by a personal policy advisor (Andrea Tassoni, 2014 – 2018).1452TRACECA, “Annex 11 – Report of the 1st Steering Committee Meeting,” 21/01/2015, https://traceca-org.org/fileadmin/fm-dam/TAREP/68ta/1/Annex_11_StgCttee_1_report.pdf, retrieved on 14/07/2024, p. 14.
The Administrative Board has oversight over the work carried out by the Agency and the Executive Director. Representatives from all EU Member States, Iceland and Norway, and four representatives from the Commission (DG Transport & Mobility) are on the Administrative Board. In the relevant period, the Chairman position of the Administrative Board was consecutively held by Frans Van Rompuy (2014 – 2017) and Andreas Norseth (2017 – 2023).1453EMSA, “New Chair and Deputy Chair of EMSA’s Administrative Board” 16/11/2023, https://www.emsa.europa.eu/newsroom/latest-news/item/5067-new-chair-and-deputy-chair-for-emsa%E2%80%99s-administrative-board.html, retrieved on 023/11/2024 [https://web.archive.org/web/20240930064004/https://www.emsa.europa.eu/newsroom/latest-news/item/5067-new-chair-and-deputy-chair-for-emsa%E2%80%99s-administrative-board.html]
The 2020 organizational plan indicates that the Director General, the Director in charge of waterborne transport (both DG MOVE), and the Director for Civil Protection Policy of DG ECHO are the Commission representatives. Four non-voting representatives from maritime industry sectors are also present. The Administrative Board appoints the Director, oversees the Agency’s work, votes on the multi-annual strategy, budget and “establish[es] procedures for decision-making by the Executive Director.”1454European Parliament and Council of the European Union, Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, 27/06/2002, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02002R1406-20161006, retrieved on 15/09/2020 [https://web.archive.org/web/20200915134025/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02002R1406-20161006] article 10(2)(f). These decisions are taken by a two-thirds majority. The Executive Director is present at board meetings but has no voting right. According to its founding regulations, the Executive Director “act independent[ly]” from the Commission and the Administrative Board and is tasked with proposing the multi-annual strategy, the annual work programme, the budget and country visits. They are also enabled to “enter into administrative arrangements with other [relevant] bodies.”1455European Parliament and Council of the European Union, Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, 27/06/2002, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02002R1406-20161006, retrieved on 15/09/2020 [https://web.archive.org/web/20200915134025/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02002R1406-20161006] article 15(2)(ba).
IDepartment of Operations/Safety, Security & Surveillance
The Department of Safety, Security & Surveillance is the most relevant for the purpose of the present Communication. It is divided into two units responsible for Safety & Security and Surveillance. It deals with ship safety, accident investigation, marine equipment, Port State Control, Flag State Implementation, Equasis, MASS – autonomous ships, Places of Refuge, maritime security, cybersecurity, and maritime surveillance: satellite earth observation, CleanSeaNet, Copernicus Maritime Surveillance Service, RPAS (Remotely Piloted Aircraft Systems) services, RPAS emission and pollution monitoring, satellite communication and satellite AIS. It appears that these functions fell under the purview of the preceding Operations Department, which was renamed and restructured in 2019. In the relevant period, the Operations department and the subsequent Safety, Security & Surveillance department were headed by Leendert Bal.1456EMSA, “Department C – Operations,” 22/01/2024, https://www.emsa.europa.eu/stmid/156-uncategorised/2343-departmentc.html, retrieved on 14/07/2024
IISurveillance Systems
While extremely technical, the following section crucially lays out the functioning of the services that eventually enabled various EU officials to orchestrate crimes against humanity of deportation or forced transfer jointly with or through their Libyan counterparts. EMSA facilitates technical operation between Member States (MS) and the Commission for the exchange of EU vessel traffic information through SafeSeaNet (SSN), the long-range identification and tracking of vessels (LRIT), and EU operational reporting services, including the electronic transmission of reporting formalities.1457EMSA, “Maritime Information Services Catalogue,” 31/10/2016 [annex 19], p. 26.
The following surveillance systems are among those used by EMSA to provide “a more complete overview of activities at sea” to EU member states:
· SSN is a monitoring and information system surveilling vessel traffic in European and surrounding waters which is operated by EU member states and EMSA. The program serves to enable maritime data exchange between “maritime authorities from across the continent.” Concretely, SSN tracks ship transmission of Automatic Identification System (AIS) radio signals. EMSA accordingly collects information on “identity details, latest positions and other status information in near-real-time for around 17,000 vessels operating in and around EU waters.”
· LRIT is an International Maritime Organization system which collects vessel position data specifically from IMO member States ships subject to SOLAS (International Convention for the Safety of Life at Sea).1458United States Coast Guard Navigation Center, Long Range Identification and Tracking (LRIT) Overview, https://www.navcen.uscg.gov/?pageName=lritMain, retrieved 15/09/2020 [https://web.archive.org/web/20200915135009/https://www.navcen.uscg.gov/?pageName=lritMain]
· Copernicus Maritime Surveillance Service (CMS) is a program which “provides Earth Observation products (satellite images and value adding products) to support a better understanding and improved monitoring of activities at sea such as maritime safety [including] maritime security [and] law enforcement.”1459EMSA, Copernicus Maritime Surveillance Service, http://www.emsa.europa.eu/copernicus.html, retrieved on 15/09/2020 [https://web.archive.org/web/20200915135359/http://www.emsa.europa.eu/copernicus.html]
CImplication in Criminal Policies
IGeneral Assistance with Border Management
Despite not being mentioned in its original mandate, migration has progressively grown to become an important matter for EMSA. The agency participated in the meetings of the Task Force Mediterranean,1460Deutscher Bunderstand, Antwortder Bundesregierungauf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Jan van Aken, weiterer Abgeordneter und der Fraktion DIE LINKE, 07/01/2014,http://dipbt.bundestag.de/dip21/btd/18/002/1800270.pdf, retrieved 15/09/2020 [https://web.archive.org/web/20200915135732/http://dipbt.bundestag.de/dip21/btd/18/002/1800270.pdf], p. 4. and in at least one Seahorse Project Steering Group meeting in February 2017.1461European Commission, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved 15/09/2020 [https://web.archive.org/web/20200915143921/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en] The European Commission states that the “integrated maritime services [under EMSA]… are extending digital solutions to other user communities and EU bodies, serving priority political areas such as security and the migration situation.”1462European Commission, Directorate-General for Mobility and Transport, “European Maritime Safety Agency (EMSA),” https://transport.ec.europa.eu/transport-modes/maritime/european-maritime-safety-agency-emsa_en, retrieved on 14/10/2024 [https://web.archive.org/web/20240921094418/https://transport.ec.europa.eu/transport-modes/maritime/european-maritime-safety-agency-emsa_en] The Commission further indicates that it aims to “assist more national authorities involved in Coast Guard functions for enhanced cross-sector and cross-border concerted action.”1463European Commission, Directorate-General for Mobility and Transport, “European Maritime Safety Agency (EMSA),” https://transport.ec.europa.eu/transport-modes/maritime/european-maritime-safety-agency-emsa_en, retrieved on 14/10/2024 [https://web.archive.org/web/20240921094418/https://transport.ec.europa.eu/transport-modes/maritime/european-maritime-safety-agency-emsa_en] Perceived as a technical resource provider for EU states and agencies to tackle migration issues, EMSA has nonetheless played a more direct and important role through its cooperation with Frontex.
IIFrontex Cooperation – European Coast Guard Functions
Alongside Frontex and the European Fisheries Control Agency, EMSA assists national authorities “in performing their coast guard tasks,” including those related to search and rescue, law enforcement and border control. EMSA’s support consists of “information sharing, surveillance and communication services, capacity building activities as well as risk analysis and information exchange on threats in the maritime domain.”1464Frontex, European Coast Guard Functions, https://frontex.europa.eu/operations/european-coast-guard-functions/,retrieved on 15/09/2020 [https://web.archive.org/web/20200915144100/https://frontex.europa.eu/operations/european-coast-guard-functions/]
The three agencies collaborate to perform these tasks. Frontex uses EMSA’s “remotely piloted aircraft services”1465Frontex, European Coast Guard Functions, https://frontex.europa.eu/operations/european-coast-guard-functions/,retrieved on 15/09/2020 [https://web.archive.org/web/20200915144100/https://frontex.europa.eu/operations/european-coast-guard-functions/] (RPAS) for border surveillance. This “joint work” was formalized in September 2016 and led to a modification of the agencies’ founding regulations. In the final report on the “EU coastguard function pilot project,” it is explicitly expressed that the formal joining of these agencies occurred in response to the “migrant crisis of 2015.”1466Frontex, Final Report Pilot Project “Creation of a European Coastguard Function”, https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915145905/https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf]
To further structure their cooperation on coast guard functions, the agencies signed a Tripartite Working Arrangement in 2017, and as noted above their collaborative work is overseen by a Steering Committee consisting of their Executive Directors of the agencies. Cooperation on surveillance and communication services, capacity building, risk assessment and capacity-sharing are further discussed on a more technical level by three technical subcommittees which regularly convene. This process also invites participation of Member States representatives through the Annual EU Coast Guard Event and other thematic meetings.1467Frontex, European Coast Guard Functions, https://frontex.europa.eu/operations/european-coast-guard-functions/,retrieved on 15/09/2020 [https://web.archive.org/web/20200915144100/https://frontex.europa.eu/operations/european-coast-guard-functions/] EMSA’s services to Frontex are “specifically tailored to meet Frontex’s needs for supporting the Member State border control activities,”1468Frontex, Final Report Pilot Project “Creation of a European Coastguard Function”, https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915145905/https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf], p. 8. comprising vessel monitoring and tracking, vessel detection service, anomaly detection service, activity detection service and vessel reporting service. The importance of this role is not to be underestimated: EMSA’s support was “exceptionally important for Frontex’s activities.”1469Frontex, Final Report Pilot Project “Creation of a European Coastguard Function”, https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915145905/https://frontex.europa.eu/assets/Publications/General/Final_Report_EUCG.pdf], p. 10.
IIIProvision of Drone Services
As part of maritime surveillance, EMSA provides drone services to Frontex and Member States. Transport Commissioner Violeta Bulc stated that the cooperation between the agencies included Remotely Piloted Aircraft Systems (RPAS) to assist with “multipurpose maritime surveillance capacity to national authorities”1470European Parliament, Answer given by Ms Bulc on behalf of the European Commission, 19/09/2019, https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html, retrieved on 15/09/2020 [https://web.archive.org/web/20200915150137/https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html] and was intended among other things to “detec[t] vessels in distress… and tracking of vessels involved in illegal activities at sea.”1471“EU drone operations: Israeli military firm Elbit amongst maritime agency’s subcontractors”, London, Statewatch, 30/09/2019, https://www.statewatch.org/news/2019/september/eu-drone-operations-israeli-military-firm-elbit-amongst-maritime-agency-s-subcontractors/, retrieved on 15/09/2020 [https://web.archive.org/web/20200915150356/https://www.statewatch.org/news/2019/september/eu-drone-operations-israeli-military-firm-elbit-amongst-maritime-agency-s-subcontractors/] Portugal, Spain, Denmark, Greece, Croatia, Italy and Iceland were recipients of EMSA’s RPAS services in 2018 and 2019. These services were commonly rendered for about three months.1472European Parliament, Answer given by Ms Bulc on behalf of the European Commission, 19/09/2019, https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html, retrieved on 15/09/2020 [https://web.archive.org/web/20200915150137/https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html]
EMSA is also the principal RPAS service provider of Frontex, which does not own any RPAS. As of September 2019, EMSA had eight contracts with private operating companies.1473European Parliament, Answer given by Ms Bulc on behalf of the European Commission, 19/09/2019, https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html, retrieved on 15/09/2020 [https://web.archive.org/web/20200915150137/https://www.europarl.europa.eu/doceo/document/E-9-2019-002454-ASW_EN.html] These companies included Elbit Systems – an Israeli arms manufacturer - and Israel Aerospace Industries (IAI) – a state-owned company. The drone models they provided to EMSA “were developed for use in combat missions in the occupied Palestinian territory of Gaza.”1474HOWDEN, D., APOSTOLIS F. AND LOEWENSTEIN A., “Once migrants on Mediterranean were saved by naval patrols. Now they have to watch as drones fly over,” The Guardian, https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu, retrieved on 15/09/2020 [https://web.archive.org/web/20200915151250/https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu]
This service was included both in a formalized cooperation between the agencies as well as a March 2016 Service Level Agreement between EMSA and Frontex. In this agreement, EMSA agreed to the provision of surveillance tools as well as services in support of Frontex activities, including for the implementation of the EUROSUR framework. This was signed by Berndt Körner on behalf of Fabrice Leggeri and Markku Mylly the Executive Director of EMSA at the time.1475EMSA and Frontex, Service Level Agreement for the provision of surveillance tools and services in support of Frontex activities, including for the implementation of the EUROSUR framework, 21/03/2016, https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-frontex-agreement.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915151521/https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-frontex-agreement.pdf] In December 2016, EMSA put out a call for drone contracts with an estimated budget of 67.1 million euros.1476EMSA, Tender enclosure I- Technical specifications attached to the invitation to tender, https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf, retrieved 15/09/2020 [https://web.archive.org/web/20200915152344/https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf], p. 54. The call specified the need for RPAS capable of “vessel detection, vessel identification and behavior monitoring to support the agencies’ work.”1477EMSA, Tender enclosure I- Technical specifications attached to the invitation to tender, https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf, retrieved 15/09/2020 [https://web.archive.org/web/20200915152344/https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf], p. 9. It also indicated that the RPAS could support Search and Rescue activities and that satellite messages could be used to locate vessels in distress. Border control was also explicitly mentioned, as well as the fact that responding providers would “support… Member State border control authorities and Frontex. In essence this will be to reinforce the protection of EU’s external borders.”1478EMSA, Tender enclosure I- Technical specifications attached to the invitation to tender, https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf, retrieved 15/09/2020 [https://web.archive.org/web/20200915152344/https://www.statewatch.org/media/documents/news/2016/oct/eu-emsa-2016-tender-specifications-rpas-security1.pdf], p. 11. A 2019 Guardian article reported that “surveillance drones operated by Frontex or by [its] service providers… appear to be flying over waters off Libya where not a single rescue has been carried out by main EU naval mission since last August, in what is the deadliest stretch of water in the world.”1479HOWDEN, D., APOSTOLIS F. AND LOEWENSTEIN A., “Once migrants on Mediterranean were saved by naval patrols. Now they have to watch as drones fly over,” The Guardian, https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu, retrieved on 15/09/2020 [https://web.archive.org/web/20200915151250/https://www.theguardian.com/world/2019/aug/04/drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu] Frontex responded by saying it was not currently employing drones. In December 2019, however, Frontex started looking to contract firms directly to employ drones.1480MONROY, M., “Drones for Frontex: unmanned migration control at Europe’s,” Statewatch, 02/2020, https://www.statewatch.org/media/documents/analyses/no-354-frontex-drones.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915155833/https://www.statewatch.org/media/documents/analyses/no-354-frontex-drones.pdf] As noted in the Frontex Section, it was later proven that Frontex systematically shares surveillance information with and instructs the Libyan coastguards to pullback boats carrying migrants.
IVEUNAVFOR MED Operation Sophia & EUBAM Libya
In July 2015, EMSA Executive Director Markku Mylly and EUNAVFOR MED Operation Commander Enrico Credendino (their names were removed on the released agreement) signed a “Data Access Agreement for use of SAT-AIS [Satellite Automatic identification System] Data provided by EMSA.” Adhering to the Council decision establishing the EUNAVFOR MED operation indicating it should “conclude arrangements with other Union agencies,” EMSA agreed to share SAT-AIS data – information on individual ships, their identities and movement – with Operation Sophia. The purpose was to “provide earth observation and ship positioning data in support of actions against unlawful acts.”1481EMSA, Data Access Agreement for use of SAT-AIS Data provided by EMSA, 24/07/2015,https://www.asktheeu.org/en/request/7434/response/24508/attach/2/1%20Data%20Access%20Agreement%20EMSA%20EUNAVFOR%20MED.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160047/https://www.asktheeu.org/en/request/7434/response/24508/attach/2/1%20Data%20Access%20Agreement%20EMSA%20EUNAVFOR%20MED.pdf] The data was to be used by any “asset participating to the operation,”1482EMSA, Data Access Agreement for use of SAT-AIS Data provided by EMSA, 24/07/2015,https://www.asktheeu.org/en/request/7434/response/24508/attach/2/1%20Data%20Access%20Agreement%20EMSA%20EUNAVFOR%20MED.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160047/https://www.asktheeu.org/en/request/7434/response/24508/attach/2/1%20Data%20Access%20Agreement%20EMSA%20EUNAVFOR%20MED.pdf] article 4(2). enabling Operation Sophia to share the data with the Libyan Coast Guard once cooperation began. This agreement was also mentioned to have been extended in the 2016 Strategic Review.1483Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report1 January - 31 October 2016, 30/11/2016, https://www.statewatch.org/media/documents/news/2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160242/https://www.statewatch.org/media/documents/news/2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf], p. 12.
EMSA further supplied surveillance data to EUBAM Libya. The 2017 Strategic Review on EUBAM Libya, EUNAVFOR MED and EU Liaison and Planning Cell (Strategic Review) explicitly stated that “capacity delivery to the Libyan coastguard is provided through a number of activities channels, including…the information exchange network of [EMSA]. The aim of this capacity-building is to support Libyan authorities in fighting all kinds of illicit activities, saving lives at sea and developing their own search and rescue zone, maritime rescue coordination and coastguard.”1484Council of the European Union, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell, 15/05/2017, https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160450/https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf], p. 19. Addressing potential improvement of Operation Sophia, the report suggested that expanding surveillance activities would be useful to the operation and its ability to “help increase opportunities for information sharing amongst a broad array of maritime and regional actors.”1485Council of the European Union, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell, 15/05/2017, https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160450/https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf], p. 40. In the context of combating traffickers on the high seas, the report contemplated that “Sophia is in the position to further utilize its extensive intelligence on the networks of smugglers and traffickers on the high seas through increased efforts to share this information with selected partners.”1486Council of the European Union, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell, 15/05/2017, https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160450/https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf], p. 41. A few paragraphs later the report explicitly called for “continued cooperation with the Libyan authorities with regards to …enhance[ing] [intelligence, surveillance and reconnaissance (ISR)] and info sharing,” suggesting that “real-time information could be shared with the Libyan coastguard to contribute to improve their maritime situational awareness… Sophia’s sophisticated ISR assets could be used to support Libyan interdiction efforts.”1487Council of the European Union, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell, 15/05/2017, https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160450/https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf], p. 42. The report went on to propose that air surveillance could be conducted of Libyan territory while vessels remained outside of Libyan territorial waters. In the context of monitoring the training of the Libyan coastguards, an explicit mention of the “possibility to conduct information sharing with the Libyan coastguard…[to] further increase capacity” was made.1488Council of the European Union, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell, 15/05/2017, https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160450/https://www.statewatch.org/media/documents/news/2017/jun/eu-eeas-strategic-review-libya-9202-17.pdf], p. 43.
The 2018 Strategic Review confirmed that Frontex collects data from EMSA and shares the European situational picture as part of EUROSUR.1489Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], pp. 84-85.
These developments show that EMSA was a key part of the continuous expansion of surveillance efforts in the service of strengthening the EU’s complex system of conducting ‘pushbacks by proxies’. The sophisticated nature of EMSA’s services further shows the complete operational control the EU has over the Central Mediterranean Sea.
VSafeMed III Project
Apart from EMSA’s provision of maritime surveillance data to Operation Sophia and EUBAM Libya, the agency also directly contracted with the Libyan authorities. A contract made between the Commission (DG NEAR)1490EMSA, Work Programme 2016, https://maritimecyprus.files.wordpress.com/2016/03/emsa_work_programme_2016.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916074805/https://maritimecyprus.files.wordpress.com/2016/03/emsa_work_programme_2016.pdf], p. 71. here is some contradiction between which DG funded/contracted EMSA. In the initial grant contract DG DEVCO is indicated as the contracting partner but in the official EMSA Annual Report DG NEAR is listed as the funding source. and EMSA running from June 2013 to June 2016, tasked the agency with supporting “the further ratification and implementation of international maritime safety and security conventions and improving the relevant capacities of maritime administrations in the Mediterranean partner countries.”1491EMSA, SafeMed III, http://www.emsa.europa.eu/safemed.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075339/http://www.emsa.europa.eu/safemed.html] This project was titled “Safemed III” and the beneficiary countries were Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestinian Authority, Syria and Tunisia.1492EMSA, SafeMed III, http://www.emsa.europa.eu/safemed.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075339/http://www.emsa.europa.eu/safemed.html] It was specified that this action targeted the maritime authorities of these countries. The budget for this program was 3 million € and was to be carried out solely by EMSA. Included in this assistance was to “boost expertise and organizational capacity…[and] enhance communication and information sharing between Beneficiaries, EMSA, and EU Member States … concerning maritime safety [and] security.”1493EMSA, SafeMed III, http://www.emsa.europa.eu/safemed.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075339/http://www.emsa.europa.eu/safemed.html] The contract further listed “better information available regarding vessel movements and increased sharing of data among neighboring countries”.1494European Commission DG NEAR, Annex 7 -Action Fiche for ENPI Regional East Action Programme part II, Date/2011, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/enpi_2011_c2011_8563_rap_east_partii_ad7_maritimesafetysecurity.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075255/https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/enpi_2011_c2011_8563_rap_east_partii_ad7_maritimesafetysecurity.pdf], p. 6.
The contract detailed the EU’s desires to create a Mediterranean system of surveillance in regard to vessel monitoring and tracking. It would do so through the above-mentioned SSN (SafeSeaNet) which collects this information and creates a maritime data exchange between maritime administrations of the Member States. The aspiration was however to include also SAFEMED beneficiaries including Libyan maritime authorities. Later, pilot initiatives to share AIS data at sub-regional level were also mentioned. In the earlier SAFEMED I & II projects Libya was not part of the beneficiaries participating in data sharing, SAFEMED III does not specifically exclude the country. Rather, the contract generally refers to the beneficiaries, which explicitly includes Libya.1495European Commission DG NEAR, Annex 7 -Action Fiche for ENPI Regional East Action Programme part II, Date/2011, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/enpi_2011_c2011_8563_rap_east_partii_ad7_maritimesafetysecurity.pdf, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075255/https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/enpi_2011_c2011_8563_rap_east_partii_ad7_maritimesafetysecurity.pdf], pp. 3, 5.
VISafeMed IV Project
SafeMed III was followed by SafeMed IV in which EMSA was tasked with continuing its assistance from the earlier project.1496EMSA, SAFEMEDIV Project 1st Steering Committee Meeting, 26/09/2017 [Annex 10] This assistance started in January 2017 and included inter alia training participating countries in vessel traffic monitoring and information systems,1497EMSA, Component 3 - Vessel Traffic Monitoring and Information Systems, http://emsa.europa.eu/safemed-iv-project/component-3-vessel-traffic-monitoring-and-information-systems.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916075647/http://emsa.europa.eu/safemed-iv-project/component-3-vessel-traffic-monitoring-and-information-systems.html] and providing support in enhancing cooperation and information sharing among Member States and third countries.1498EMSA, Component 7 - Mediterranean Coast Guard Functions Forum, http://emsa.europa.eu/safemed-iv-project/component-7-mediterranean-coast-guard-functions-forum.html, retrieved on 16/09/2020 [http://emsa.europa.eu/safemed-iv-project/component-7-mediterranean-coast-guard-functions-forum.html] The beneficiary countries were able to give an overview of their maritime administrations and ask for specific needs for technical assistance.1499EMSA, SAFEMEDIV Project 1st Steering Committee Meeting, 26/09/2017 [Annex 10]
The multi-phase plan for this project also included an “exchange of T-AIS data between SAFEMED countries and EU Member States” in phase 2 and the “involvement of SAFEMED countries in SSN” in phase 3. The Italian Coast Guard played a key role in these two steps as they are responsible for operating the Mediterranean AIS Regional Server (MAREΣ). Service Level Agreements between EMSA, the Italian Coast Guard and individually Morocco, Jordan and Tunisia1500EMSA, the Italian Coast Guard and the Maritime Administration of Morocco as beneficiary country participating to the SafeMed III project, Service Level Agreement for the provision of Integrated Maritime Services and the use of the Mediterranean AIS Regional Server (MAREΣ) to support the establishment of pilot projects to extend cooperation on AIS matters within the scope of the SAFEMED III project, https://www.asktheeu.org/en/request/7434/response/24415/attach/15/7%20SLA%20EMSA%20ICG%20Morocco%20AIS.pdf,retrieved on 16/09/2020 [https://web.archive.org/web/20200916080332/https://www.asktheeu.org/en/request/7434/response/24415/attach/15/7%20SLA%20EMSA%20ICG%20Morocco%20AIS.pdf] 1501EMSA, the Italian Coast Guard and the Maritime Administration of Jordan as beneficiary country participating to the SafeMed III project, Service Level Agreement for the provision of Integrated Maritime Services and the use of the Mediterranean AIS Regional Server (MAREΣ) to support the establishment of pilot projects to extend cooperation on AIS matters within the scope of the SAFEMED III project, https://www.asktheeu.org/en/request/7434/response/24415/attach/14/7%20SLA%20EMSA%20ICG%20Jordan%20AIS.pdf,retrieved on 16/09/2020 [https://www.asktheeu.org/en/request/7434/response/24415/attach/14/7%20SLA%20EMSA%20ICG%20Jordan%20AIS.pdf] 1502EMSA, the Italian Coast Guard and the Maritime Administration of Tunisia as beneficiary country participating to the SafeMed III project, Service Level Agreement for the provision of Integrated Maritime Services and the use of the Mediterranean AIS Regional Server (MAREΣ) to support the establishment of pilot projects to extend cooperation on AIS matters within the scope of the SAFEMED III project, https://www.asktheeu.org/en/request/7434/response/24415/attach/13/7%20SLA%20EMSA%20ICG%20Tunisia%20AIS.pdf,retrieved on 16/09/2020 [https://web.archive.org/web/20200916080637/https://www.asktheeu.org/en/request/7434/response/24415/attach/13/7%20SLA%20EMSA%20ICG%20Tunisia%20AIS.pdf] have been signed in phase 1. An overview of 2018 EMSA training sessions confirms that Libyan nationals were among the 207 participants trained by EMSA under SafeMed IV.1503EMSA, Capacity Building at EMSA 2018, 19/08/2019, http://emsa.europa.eu/infographics/item/3670-capacity-building-at-emsa-2018.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916080814/http://emsa.europa.eu/infographics/item/3670-capacity-building-at-emsa-2018.html]
In March 2019 EMSA delivered a Search and Rescue training in collaboration with the Italian coastguard, in which Libya participated.1504EMSA, SAFEMED IV Seminar on Search and Rescue, http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html, retrieved on 16/09/2020 [https://web.archive.org/web/20200916082115/http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html] In one of the presentations given at this training a slide states that “the best way to implement an effective border control at sea is…to conduct S.A.R. operations.”1505Italian Ministry of Infrastructure and Transport, Rescue of Migrants, Presentation, http://www.emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html, retrieved on 16/04/2021 [https://web.archive.org/web/20201001121820/http://emsa.europa.eu/safemed-iv-project/363-safemed-iv-component-5/3510-safemed-iv-seminar-on-search-and-rescue.html] [Annex 4] slide 28. At the 2nd Steering Committee Meeting, “Migration and people trafficking” was explicitly mentioned as one of the “maritime challenges.”1506EMSA, SAFEMED IV Project 2nd Steering Committee, Presentation, 10/10/2018, http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html, retrieved on 16/04/2021 [https://web.archive.org/web/20210112104205/http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html] [Annex 2] slide 4. A representative of the Libyan Maritime Authority was also present. Libya requested training for the following points: (Vessel) traffic monitoring, Search and Rescue, and maritime international conventions, among others.1507Libyan Ports & Maritime Transport Authority, Untitled, Presentation, 10/10/2018, http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html, retrieved on 16/04/2021 [https://web.archive.org/web/20210112104205/http://www.emsa.europa.eu/safemed-iv-project/safemed-9/item/3381-safemed-iv-2nd-steering-committee.html] [Annex 3] slide 4. In 2019 feedback from Libya to EMSA stated that the agency had improved their performance in “search and rescue and cooperation regional […] and prepar[ing] national maritime legislation in the maritime field to apply regulations and rules issued by IMO.”1508EMSA, SAFEMED IV Project 3rd Steering Committee, Presentation, 03-04/09/2019 [Annex 1], p. 6.
DKey Officials Involved
Markku Mylly
Executive Director, 2012 – December 2018
Maja Markovčić Kostelac
Executive Director, January 2019 – end date unclear
Formerly Member of the Administrative Board (unspecified time)
Frans Van Rompuy
Chairman of the Administrative Board, 2014 – 2017
Andreas Nortseth
Chairman of the Administrative Board, 2017 - 2023
Andrea Tassoni
Policy Advisor to the Executive Director 2014 – 2019
Leendert Bal
Head of Department Operations, 2014 – 2019
Head of Department Safety, Security & Surveillance, 2019 – end date unclear
EKey individuals
Suspects
-
Markku Mylly>
2012–2018
Executive Director
Involved
-
Leendert Bal>
2014–2019
European Maritime Safety Agency (EMSA)Head of Department Operations
2019–2023
European Maritime Safety Agency (EMSA)Head of department Safety, security & surveillance
-
Andrea Tassoni>
2014–2018
European Maritime Safety Agency (EMSA)Policy Advisor to the Executive Director
-
Andreas Nortseth>
2017–2023
European Maritime Safety Agency (EMSA)Chairman of the Administrative Board
-
Frans Van Rompuy>
2014–2017
European Maritime Safety Agency (EMSA)Chairman of the Administrative Board
-
Maja Markovčić Kostelac>
01/2019 – end date unclear
European Maritime Safety Agency (EMSA)Executive Director of EMSA
- 1448European Commission, European Maritime Safety Agency (EMSA), 15/09/2020, https://ec.europa.eu/transport/modes/maritime/safety/emsa_en, retrieved on 15/09/2020 [https://web.archive.org/web/20200915133513/https://ec.europa.eu/transport/modes/maritime/safety/emsa_en]
- 1449Ibid.
- 1450Ibid.
- 1451Ibid.
- 1452TRACECA, “Annex 11 – Report of the 1st Steering Committee Meeting,” 21/01/2015, https://traceca-org.org/fileadmin/fm-dam/TAREP/68ta/1/Annex_11_StgCttee_1_report.pdf, retrieved on 14/07/2024, p. 14.
VI
Italy
AExecutive Summary
As the primary country of arrival of “migrants”, Italy has played a key role in the design and implementation of EU policies in the Central Mediterranean route. From 2013 to date, the frontline member state increasingly advocated for restrictive migration policies irrespective of their criminal nature. It played a principal role in the termination of operation Mare Nostrum and its substitution with Joint Operation Triton pursuant to EU’s 1st policy of mass killings by drowning. It was the key actor in the establishment of the operational and normative frameworks that enabled reconstruction and contracting with Libyan militias pursuant to EU’s 2nd policy of mass deportations. Italian officials from governments across the political board participated in this joint criminal enterprise whilst being fully aware of their participation in countless Crimes Against Humanity against more than 150,000 members of the targeted group.
In response to the Lampedusa shipwrecks of October 2013, Italian Prime Minister Enrico Letta launched Mare Nostrum, a national maritime operation whose objective was to conduct large-scale search and rescue (SAR) of “migrants” in distress at sea. Despite its falsehood, the argument according to which the operation incentivizes “migrant” crossings (‘pull factor’), was instrumentalized to delegitimize the operation for political and financial ends.
In 2014, Prime Minister Matteo Renzi pushed for the “Europeanization” of Mare Nostrum and requested the EU Council to engage in what Renzi considered to be a continental, not national, ‘crisis’. After long negotiations, led by France and involving the United Kingdom, Spain, Germany, and Poland, took place, on 27 August 2014 the Italian Interior Minister Alfano and the EU Commissioner for Home Affairs Cecilia Malmström declared the end of Mare Nostrum.
Joint Operation Triton was launched on 1 November 2014, following a Justice and Home Affairs council. The Frontex Joint Operation was placed under the command of the Italian Ministry of the Interior and led by Italy. Triton lacked the capacity and never intended to replace Mare Nostrum. On the contrary, the predicted increase in the death toll was an intended consequence of this policy change, whose purpose was to sacrifices the lives of many in order to dissuade many more others from seeking protection in the EU. Although the dramatic rise in drownings was immediate, Italian officials refrained from changing their course of action.
Italy covered up the fatal consequences this downscaling had and its anticipated knowledge of the said consequences. The attempt to artificially increase the death rate to decrease the crossing rate has failed: the crossing rate remain unchanged while the death rate skyrocketed. Yet Italy celebrated Triton as a political win and the policy to deter the behavior of the targeted group by killing thousands of its members continued uninterrupted. It is still ongoing.
Since 2013 Italy was also pushing the EU to launch a military naval operation to tackle “human smuggling and trafficking”. In 2015, the EU announced the creation of a Common Security and Defence Policy mission, EUNAVFOR MED Operation Sophia, headed by the Italian admiral Enrico Credendino. Sophia’s mandate largely drew from Italy’s 2013 proposals, expanding the Italian border externalization projects while benefiting from EU resources.
Drawing on its history of bilateral collaboration, the Italian government also led the political and operational normalization of the renewed cooperation with Libyan detention and coast guards. Italy not only provided equipment, training, funding and command & control capacities. It also participated in Libyan operations. This Italian direct and indirect support has enabled the EU to cede the attack against the targeted group to these para-statal militias.
In 2017, for example, Italy created “Fondo Africa,” a fund placed under the control of the Government whose aim was to ensure that Libyan authorities were able to execute the delegated tasks. The fund was used inter alia to repair and provide boats to the Libyan “Coast Guard” (LYCG), and even to indirectly contribute to Libyan detention centers. Italian officials pursued Italy’s “political goals” while being aware of the criminal means used to this end.
Under the premise of humanitarian assistance, Italy funded and operated programs in Libyan detention centers that were aimed at “offering return programs to migrants”. No return could be voluntary in the dire conditions and systematic violence in the camps, but these programs were consistent with the overall objective to disincentivize the detainees and countless other members of the targeted group from crossing to Europe via the Central Mediterranean route.
Italian authorities also ensured the LYCG would be able to fulfill its mission without “interference”, by systematically obstructing the operation of rescue NGOs through administrative detention of their vessels, criminal prosecution of their crews, and prevention and delay of disembarkation of rescues (e.g., the “closed ports” policy).
Finally, Italy was behind the creation and international recognition of Libya’s Search and Rescue zone in an immense portion of international waters. This was the last step in the progressive externalization of EU’s border management, as under maritime law it would make Libya the sole coastal state responsible for coordinating ‘rescue’ operations in its respective SAR zone in in. Although Italy was aware the LYCG is incompetent to conduct SAR and of the fact that Libya is considered unsafe port under international law, the country used its political leverage, operational reputation and alleged supervisory role to facilitate and expedite this process before the International Maritime Organization.
The involvement of Italian officials in the design and execution of policies whose shared objective is to stem arrivals to the EU at all costs gives rise to individual criminal responsibility for the widespread and systematic commission of Crimes Against Humanity of murder, enforced disappearances, torture, enslavement, rape, imprisonment and other inhuman acts, directed against the most vulnerable population in the world, civilians fleeing the armed conflict in Libya, in pursuit of international protection.
BDecision-Making Structures
IGeneral Overview
Italy is a Republic headed by a President of the Republic, elected for seven years, who occupies a largely ceremonial position. Political power belongs to the Prime Minister, formally known as the President of the Council of Ministers, who leads and holds responsibility for the general policy of the Government. The Prime Minister co-ordinates the activities of the Ministers and ensures the coherence of the political and administrative line.1509Costituzione della Repubblica Italiana, English translation available at https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf article 95. Ministers are suggested by the Prime Minister and formally appointed by the President of the Republic. They sit in the Council of Ministers which is formally under the rule of the President but de facto headed by the Prime Minister. During the relevant period, the governmental configuration was based on 15 Ministries, which are in turn divided into a large number of departments and offices.
The structure of the Italian public administration shows a “variable geometry”,1510PAJNO, A., & TORCHIA, L. (2000). La riforma del governo: commento ai decreti legislativi n. 300 e n. 303 del 1999 sulla riorganizzazione della Presidenza del consiglio e dei ministeri. Bologna, Il Mulino. i.e., a high degree of internal fragmentation within the various ministerial institutions. In the present case, the relevant institutions are the Presidency of the Council, the Parliament, the Ministries of the Interior, Foreign Affairs and International Cooperation, Defence, Infrastructure and Transport, and of Economy and Finance. Also, the judiciary is of relevance. The criminal responsibility of Italian nationals stems from the combined actions and inactions of these institutions.
IIPresidency of the Council
The organization of the Presidency of the Council of Ministers is governed by Law no. 400 of 23 August 1988 and Legislative Decree no. 303 of 30 July 1999. The President of the Council is appointed by the President of the Republic and is given the mandate to form a government that will receive a vote of confidence by the Parliament. For this reason, the appointed President of the Council will have to take into consideration the composition of parliamentary groups and distribute the Ministries accordingly.1511COTTA, M., VERZICHELLI, L., Il Sistema Politico Italiano, Il Mulino, 2016
The lack of cohesion in Parliament has often led to instability at the Prime Minister's cabinet and a subsequent difficulty to coordinate the Ministers’ work.1512COTTA, M., VERZICHELLI, L., Il Sistema Politico Italiano, Il Mulino, 2016 Although Art. 95 states that the President of the Council of Ministers is responsible for coordinating inter-ministerial activity, it is also said that the Ministers have individual responsibility for matters relating to their ministries. The Constitution does not provide the President of the Council of Ministers with specific instruments to ‘discipline’ ministers in the event of political and administrative disagreement. The President of the Council can change the Ministers of his choice but must respect the consensus of the parties concerned.
In the time frame analyzed hereinafter, five governments took office, over two legislatures (XVII 04.2013-03.2018 and XVIII from 03.2018). The Presidents of the Council (Prime Ministers) were, successively, Enrico Letta (April 2013 – February 2014), Matteo Renzi (February 2014 – December 2016), Paolo Gentiloni (December 2016 – March 2018), Giuseppe Conte I (March 2018 – September 2019) and II (September 2019 – June 2020).
Within the Presidency of the Council of Ministers, the following roles are the most relevant to the purposes of this Communication:
· the Secretary of the Council of Ministers (Segretario del Consiglio dei Ministri). It is the closest collaborator of the Prime Minister and plays a crucial role in the preparation of the executive's agenda and often leads negotiations with party representatives and external actors.
· the Delegated Authority for the Security of the Republic. The President of the Council of Ministers is entrusted with the overall direction and responsibility for intelligence policy but may delegate intelligence functions to a Delegated Authority. The post of Delegated Authority may be held by an Undersecretary of State or a Minister without portfolio who may not exercise any further government functions.1513Italy’s Intelligence System for the Security of the Republic, Autorità Delegata, https://www.sicurezzanazionale.gov.it/sisr.nsf/chi-siamo/organizzazione/autorita-delegata.html, retrieved on 06/04/2020 [https://web.archive.org/web/20200416122709/https://www.sicurezzanazionale.gov.it/sisr.nsf/chi-siamo/organizzazione/autorita-delegata.html] The President of the Council and the Delegated Authority, together with other organizations, are part of Italy’s Security Intelligence System of the Republic.[1] In the framework of this Communication, this post was crucial as it was held by Marco Minniti from 2013 to 2016, who used this position to build expertise on and contacts with Libya that he would later rely on as Interior Minister.
· the Office of the Diplomatic Advisor (Ufficio del Consigliere Diplomatico ). Like all the other Ministers, the President of the Council avails himself of a Diplomatic Advisor, normally an official of the Ministry of Foreign Affairs with the rank of Ambassador. The Diplomatic Advisor advises the President of the Council on matters concerning foreign policy and accompanies him in high-level meetings. In the framework of this Communication, this post is relevant for the period in which Italy held the Presidency of the Council of the European Union in 2014. The Diplomatic Advisors to the President of the Council were Aramando Varicchio (Letta’s government 2013 – 2014), Maria Angela Zappia (Renzi and Gentiloni, 2016 – 2018) Pietro Benassi (2018 – 2021)
[1] The other authorities that are part of the Security Intelligence System are the CISR (Interministerial Committee for the Security of the Republic), the DIS (Security Intelligence Department), the AISE (External Intelligence and Security Agency) and the AISI (Internal Intelligence and Security Agency).
IIIParliament
The Parliament is a central institution in the Italian constitutional system as it is the highest expression of popular sovereignty. The Parliament primarily exercises legislative powers but also guides and monitors the Government’s actions, has the power to grant and revoke confidence in the Government and can investigate matters of public interest. The Parliament’s political guidance and control over the Government are carried out through three different types of acts: i) interrogation, i.e. written questions addressed to the Government for clarification on specific facts; ii) interpellations, i.e. written questions addressed by individual parliamentarians to obtain clarifications regarding the line of conduct adopted by the Government in certain situations; and iii) motions, i.e. proposals that initiate a parliamentary debate which is followed by a resolution. In regard to the analyzed policies, the parliamentary interrogation has been the most utilized tool to investigate the Government’s policies vis-à-vis Libya and “migrants”.
The Parliament is composed of two houses, the Chamber of Deputies and the Senate of the Republic which are equal in their functions and powers, and each have a 5-year mandate. The Chamber of Deputies and the Senate of the Republic have their own regulations, and the respective members elect their own President. According to Article 86 of the Constitution, “the functions of the President of the Republic, in all cases in which the President cannot perform them, shall be performed by the President of the Senate.”
The Presidents of the Chamber of Deputies were, successively, Laura Boldrini (March 2013 – March 2018) and Roberto Fico (March 2018 – Present). The Presidents of the Senate were successively Pietro Grasso (March 2013 - March 2018) and Maria Elisabetta Alberti Casellati (March 2018 – 2022). The two houses each have 14 Standing Committees. Each Committee exercises legislative, investigative, policy-setting and control functions in accordance with its area of competence.1514Chamber of Deputies, Standing Committees, retrieved on 29/03/2021, https://en.camera.it/4?scheda_informazioni=11, retrieved on 06/2020/2020 [https://web.archive.org/web/20191030083903/https://en.camera.it/4?scheda_informazioni=11]
For the purpose of this Communication, the most relevant Standing Committees are:
· I Standing Committee on Constitutional Affairs of the Prime Minister and the Interior of the Chamber of Deputies. The areas of competence relevant to this communication: citizenship; immigration; regulation of information and security services; public order and security police.
The Presidents of the I Standing Committee on Constitutional Affairs of the Prime Minister and the Interior of the Chamber of Deputies were, successively: Francesco Paolo Sisto (May 2013 – July 2015), Andrea Mazziotti di Celso (July 2015 – March 2018) and Giuseppe Brescia (June 2018 – October 2022).
The Presidents of the I Standing Committee on Constitutional Affairs, Affairs of the Office of the Prime Minister, Home Affairs, Organisation of the State and the Civil Service of the Senate were successively: Anna Finocchiaro (May 2013 – December 2016), Salvatore Torrisi (April 2017 – March 2018), Stefano Borghesi (June 2018 – July 2020) and Dario Parrini (July 2020 – October 2022).
· III Standing Committee on Foreign and European Community Affairs. Its areas of competence are Foreign and European affairs, revision of international Treaties, relations with third States and political relations between Member States, and migration matters.
The Presidents of the III Standing Committee of the Chamber of Deputies were, successively: Fabrizio Cicchitto (May 2013 – March 2018), Marta Grande (June 2018 – June 2020) and Fassino Piero (July 2020 – October 2022).
The Presidents of the III Commission of the Senate were, successively: Pier Ferdinando Casini (May 2013 – September 2017) and Vito Rosario Petrocelli (June 2018 – May 2022).
· IV Standing Committee on Defence. Its areas of competence are defense, organization of the armed forces, legal and economic status of military personnel, provision of personnel and means of the armed forces.
The Presidents of the IV Standing Committee of the Chamber of Deputies were, successively: Elio Vito (May 2013 – July 2015), Francesco Saverio Garofani (July 2015 – March 2018) and Gianluca Rizzo (June 2018 – October 2022)
The Presidents of the IV Standing Committee of the Senate were, successively: Nicola la Torre (May 2013 – March 2018), Donatella Tesei (June 2018 – December 2019), Laura Gavarini (February 2020 – July 2020) and Roberta Pinotti (June 2020 – October 2022).
· XIV Standing Committee on European Union Policies. Areas of competence: oversight of the legal framework concerning the activities and measures of the European Union and its institutions; implementation of legislative acts and other obligations deriving from the European legal system.
The Presidents of the XIV Standing Committee on European Union Policies of the Chamber of Deputies were, successively: Michele Bordo (May 2013 – March 2018) and Sergio Battelli (June 2018 – October 2022).
The Presidents of the XIV Standing Committee on European Union Policies of the Senate were, successively: Vannino Chiti (May 2013 – March 2018) and Stefano Dario (March 2018 – October 2022).
Some ad hoc Parliamentary Committees have been involved in Italy’s migration policies. Among the Parliamentary Committees for policy-setting, oversight and control on specific areas of competence, the most relevant is the Parliamentary Committee of Control for the Enforcement of the Schengen Agreement, for Oversight of Europol Activities, and the Control and Oversight of Immigration Affairs. This Committee oversees activities related to the implementation of immigration and asylum laws and the relevant international agreements.
The Presidents of the Parliamentary Committee of Control for the Enforcement of the Schengen Agreement, for Oversight of Europol Activities, and the Control and Oversight of Immigration Affairs were successively: Laura Ravetto (October 2013 – March 2018) and Eugenio Zoffili (November 2018 – October 2022).
Among the Parliamentary Committees of Inquiry, the most relevant is the Parliamentary Committee of inquiry on the reception, identification and expulsion system, as well as on the conditions of detention of migrants and on the deployed public resources. The Committee’s mandate focuses on the main issues related to the Italian migrant reception system, with a particular reference to the detention measures and repatriation system.
The President of the Parliamentary Committee of inquiry on the reception, identification and expulsion system, as well as on the conditions of detention of migrants and on the deployed public resources was Federico Gelli (23 February 2016 - 22 March 2018).
In a constitutional system, the Government derives its legitimacy from the Parliament, but in recent years, Italy has faced a reversal of the executive and legislative functions. The Parliament is increasingly relegated to the role of ratifying decisions taken elsewhere, and often has limited power to intervene because the Government’s decisions are already operational.1515Interviewee I74
The government’s increasingly frequent recourse to so-called decree laws, legislative acts which have the status of law, and which are meant to be used in extraordinary cases of necessity and urgency, is indicative of the increased legislative power that the government is exercising at the expense of Parliamentarian activity. These decree laws take effect immediately and must be converted into law by Parliament within 60 days. In migration-related matters, parliamentary ratification of the decree laws has been so consistent that it is practically taken for granted, and the government barely tries to get Parliament’s approval.1516Interviewee I74
The Memorandum of Understanding (MoU) signed with Libya on 2 February 2017 provides an example of this dynamic: According to Article 80 of the Italian Constitution on international treaties, the MoU should have been approved and ratified by the Parliament but was instead concluded in a simplified form, thus bypassing the scrutiny of the Parliament. The appeals made by Parliamentarians about the breach of Article 80 were ignored, once again underlining the subordinate position that the Parliament has when it comes to migration polices.1517VARI, E., Italy-Libya Memorandum of Understanding: Italy’s International Obligations, Hastings International and Comparative Law Review, Vol. 43, Winter 2020, https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1844&context=hastings_international_comparative_law_review, retrieved on 16/07/2024 [https://web.archive.org/web/20240211021453/https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1844&context=hastings_international_comparative_law_review], p. 121.
IVMinistry of Interior
The Ministry of the Interior’s organizational structure is governed by Legislative Decree no. 300/99 and related implementing measures.1518Italian Parliament, Riforma dell’organizzazione del Governo, a norma dell’articolo 11 della legge 15 marzo 1997, n. 59, 30 July 1990, http://www.parlamento.it/parlam/leggi/deleghe/99300dl.htm, retrieved on 09/10/2020 [https://web.archive.org/web/20201011230846/http://www.parlamento.it/parlam/leggi/deleghe/99300dl.htm] article 14. As outlined in-detail below, the Ministry of Interior is the political institution that designed and implemented the policies this Communication analyzes. It was active from the very beginning in making externalization of Italian and European borders possible and served as the “control room” of these policies.1519Interviewee I74
The Minister is the administrative head of the Ministry and defines its political line. The Ministers were, successively, Angelino Alfano I (April 2013 – February 2014) and II (February 2014 – December 2016), Marco Minniti (December 2016 – March 2018), Matteo Salvini (March 2018 – September 2019) and Luciana Lamorgese (September 2019 – October 2022).
The Ministers can avail themselves of Deputy Ministers and Undersecretaries, who assist them in the exercise of their functions. While Deputy-Ministers were not involved in migratory matters,1520Interviewee I62 some undersecretaries have played a crucial role in advising and supporting the Minister’s work, especially the undersecretaries during Matteo Salvini’s mandate, namely Carlo Sibilia, Nicola Molteni and Stefano Candiani.1521Interviewee I62
The Ministry of Interior is divided into five departments1522President of the Italian Republic, Decreto del president del consiglio dei ministry 11 giugno 2019, n. 78, 12 October 2020, https://www.normattiva.it/uri-res/N2Ls?urn:nir:presidente.consiglio:decreto:2019-06-11;78, retrieved on 13/10/2020 [https://web.archive.org/web/20201013140059/https://www.normattiva.it/uri-res/N2Ls?urn:nir:presidente.consiglio:decreto:2019-06-11;78] article 2. and a Cabinet, which oversees several offices that work directly with the Minister.1523President of the Italian Republic, Decreto del president della repubblica 21 marzo 2002, n. 98, 22 May 2002, https://www.gazzettaufficiale.it/eli/id/2002/05/22/002G0128/sg, retrieved on 09/10/2020 [https://web.archive.org/web/20201013140044/https://www.gazzettaufficiale.it/eli/id/2002/05/22/002G0128/sg]
The Cabinet collaborates with the Minister for the effective and functional determination of the administration's objectives, the elaboration of public policies, the evaluation of their implementation and related communication activities. The work of the Cabinet is coordinated by the Chief and Deputy-Chief of the Cabinet, who are both appointed by the Minister. In the framework of this Communication, the post of Chief of Cabinet is particularly relevant as it is the closest collaborator of the Minister and therefore has been involved in the designing and implementation phase of the analyzed policies on different levels. The Chief of Cabinets were successively Luciana Lamorgese (July 2013 – January 2017), Mario Morcone (January 2017– June 2018), Matteo Piantedosi (June 2018 – August 2020).
Some of the Cabinet’s offices are particularly relevant to this Communication, as they advise the Minister and the Head of Cabinet on European trends, foreign policy and migration developments. The following offices have been crucial in defining the Cabinet’s priorities:
Office VII – Asylum and Immigration (Asilo ed Immigrazione). This Office advises the Minister on matters concerning asylum and immigration. It is headed by a Chief of Staff (Capo Ufficio di Staff) and one or more Executives in staff positions (Dirigenti in Posizione di Staff). They all have the role of Prefects or Deputy-Prefects. The Chiefs of Staff were successively Sabina Madaro (June 2014 – June 2016), Antonio Giannelli (July 2016 – December 2016), Milena Rizzi delegated as Advisor on migration (December 2016 – November 2017), Raffaella Vano delegated as Advisor on migration (November 2017 – May 2019), Filomena Piccaretta delegated as Advisor on migration (May 2019 – end date unclear). The Executives in staff position were successively Attilio Maria Gabriele Carnabuci, delegated as Advisor on Asylum matters (June 2014 – January 2018) and Riccardo Mattei, delegated as Advisor on Asylum matters (February 2019 – end date unclear).
Office VIII – International Affairs (Ufficio VIII - Affari Internazionali). The office advises the Minister on matters concerning international cooperation and European institutions. The Office is headed by a Chief of Staff (Capo ufficio di staff) and one or more Executives in staff position (dirigenti in posizione di staff), all have the role of Prefects or Deputy-Prefects. The Chief of Staff Office were, successively, Mara Di Lullo as Advisor on foreign affairs (May 2006 – April 2014) and Sabina Madaro (June 2016 – end date unclear), who was also Chief of Staff at Office VII between 2014 and 2016. Both Di Lullo and Madaro closely followed the development of the dossiers related to the internal affairs sector, including on security, migration and asylum, and took care of the briefing documents ahead of the Minister’s participation in the work of the Council of Ministers of the Interior of the European Union.1524Interviewee I16 The Executives in staff position have been several: Francesco Fabio Marzano (March 2007 – May 2016) was consultant to the various Ministers on foreign affairs matters; he prepared dossiers and action points for the Minister in all areas of the Ministry of the Interior's international activities (police cooperation, migration and human rights) and was part of the Ministerial delegations meeting with foreign officials; from February 2014 to May 2016, he acted as Advisor for European Affairs in the Cabinet of the Minister and in this position he was in charge of the activities related to the Italian Semester Presidency of the EU on Justice and Home Affairs matters. Elisabetta Brosio acted as Advisor for Bilateral and Multilateral Relations and International Agreements (July 2016 – December 2017). She supervised the dossiers for bilateral meetings of political authorities (Minister, Vice Minister, Undersecretaries) and has been part of numerous delegations accompanying political authorities. She has been responsible for the organization of numerous international events, including the semester of the Italian Presidency of 2013 for the aspects related to the JHA of the Ministry of the Interior.1525Curriculum Vitae di Elisabetta Brosio, https://www.interno.gov.it/sites/default/files/elisabetta_brosio_curriculum_vitae.pdf, retrieved on 18/04/2025 [https://web.archive.org/web/20220319172603/https://www.interno.gov.it/sites/default/files/elisabetta_brosio_curriculum_vitae.pdf] Roberto Volpi acted as Advisor on Multilateral Cooperation (August 2010 – May 2020).1526Curriculum Vitae di Roberto Volpi, https://servizientilocali.it/wp-content/uploads/CV-Volpi.pdf, retrieved on 18/04/2025 [https://web.archive.org/web/20240626050954/https://servizientilocali.it/wp-content/uploads/CV-Volpi.pdf] Daniela Pugliese (August 2013 – March 2017) was responsible for inter-institutional relations with ministerial offices, other administrations and international bodies on EU matters as well as advisor for European Union affairs.1527Curriculum Vitae di Daniela Pugliese, https://www.interno.gov.it/sites/default/files/cv_daniela_pugliese.pdf, retrieved on 18/04/2025 [https://web.archive.org/web/20250418122653/https://www.interno.gov.it/sites/default/files/cv_daniela_pugliese.pdf] Raffaella Vano (March 2017 – November 2017) acted as Advisor for Bilateral and Multilateral Relations and International Agreements. Giuseppe Liguori (December 2017 – June 2020) acted as Advisor for Bilateral and Multilateral Relations and International Agreements and was previously responsible for the Protection of the Secret of State as well as Relations with Information and Security Bodies at the Cabinet’s Office X. Maria Luisa Battaglia (September 2017 – end date unclear) acted as Advisor on Bilateral Relations.1528Curriculum Vitae Maria Luisa Battaglia at https://www1.prefettura.it/FILES/AllegatiPag/1245/battagliamarialuisa.pdf, retrieved on 18/04/2025
In addition to the Cabinet and its offices, the Ministry is composed of five Departments, two of which are most relevant to this communication:
· The Department of Public Security (Dipartimento della Pubblica sicurezza) is responsible for all activities related to public order and security, the technical-operational coordination of the Police Forces, the direction and administration of the State Police, and the direction and management of technical support.1529Interior Ministry, Dipartimento della Pubblica sicurezza, https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza, retrieved on 13/10/2020 [https://web.archive.org/web/20201013140342/https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza]
This Department is crucial both in terms of policy-design and the implementation of cooperation agreements with Libyan authorities over border management matters. Evidence suggests it initiates agreements with beneficiaries of the Fondo Africa and the EU Emergency Trust Fund for Africa (EUTF), oversees the implementation of the Italy-Libya Memorandum of Understanding (MoU), provides the Libyan authorities with the know-how and the material supply to perform border management activities.1530Interviewee I66
The General Director of the Department of Public Security acts as the Chief of Italian Police. In accordance with article 5 of Law no. 121 of 1 April 1981, the Chief of Police - General Director of Public Security, is appointed by decree of the President of the Republic, after deliberation by the Council of Ministers, on the proposal of the Minister of the Interior. The General Directors of Public Security were, successively, Alessandro Pansa (May 2013 – April 2016), who was later appointed Director of the Security Intelligence Department (DIS), and Franco Gabrielli (April 2016 – February 2021).
The Department, in accordance with the criteria established by Law No 121/81, is organized in several Offices and Directorates. With regard to the discussed policies, the Central Directorate for Immigration and Border Police (Direzione centrale dell'Immigrazione e della Polizia delle frontiere) was the most involved in the externalization of ‘migration management’.
The Central Directorate for Immigration and Border Police (Direzione centrale dell'Immigrazione e della Polizia delle frontiere) was established by Law No 189/2002 relating to the amendment of immigration and asylum laws. The above-mentioned law imbues the Central Directorate for Immigration and Border Police with the exclusive responsibility of the coordination of actions aimed at combatting “irregular” migration at sea. In particular, the Central Directorate is responsible for gathering and analyzing information related to the surveillance, prevention and contrast of irregular immigration by sea and the coordination of operational interventions by the Navy, the police and the Coast Guard's office.1531Interior Ministry, Direzione centrale dell’Immigrazione e della Polizia delle frontiere, https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza/direzione-centrale-dellimmigrazione-e-polizia-frontiere, retrieved on 13/10/2020 [https://web.archive.org/web/20250401132853/https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza/direzione-centrale-dellimmigrazione-e-polizia-frontiere]
The influence of this Directorate is crucial for understanding the power that the Ministry of the Interior exerted over other Ministries (Defense and Transports in particular), especially with regard to the management of SAR operations. The Directorate is a hierarchical structure headed by a Central Director. The Central Directors have been Giovanni Pinto (2013 – 2017) and Massimo Bontempi (2017 – 2021).
The Directorate is divided into three Offices:
a. General and Legal Affairs Office (Ufficio Affari Generali e Giuridici). It supports the Central Director in the definition of objectives relating to the management of human resources and logistical and instrumental equipment within its area of responsibility. It provides the technical-legal assistance to third countries on the basis of specific multilateral agreements. The Head of Staff of this Office was Tiziana Leone (2014 – at least until April 2024).1532Curriculum Vitae de Tiziana Leone, https://www.poliziadistato.it/statics/25/curriculum-vitae-tiziana-leone-3.7.2020.pdf, retrieved on 18/04/2025 [https://www.poliziadistato.it/statics/25/curriculum-vitae-tiziana-leone-3.7.2020.pdf]
This Office has been particularly involved in the material supply (such as patrol vessels) and training sessions on migration management to the Libyan government, as well as in drafting the agreements that concerned the training of Libyan police and coastguard forces (cf. Chapter D(ii). “The Training of the Libyan Coastguard under operations Sophia” & chapter D(iii). “The financial framework established by Fondo Africa, the EUTFand the Missioni Internazionali”) In fact, since 2017, the Ministry of Interior has declared the strengthening of migration management capacity in third-countries one of its strategic priorities.1533Interior Ministry, Documenti di programmazione strategico-gestionale, https://www.interno.gov.it/it/amministrazione-trasparente/disposizioni-generali/atti-generali/documenti-programmazione-strategico-gestionale [https://web.archive.org/web/20211227014830/https://www.interno.gov.it/sites/default/files/direttiva_ministro_anno_2017_registrata.pdf], pp. 9, 53-54. The aforementioned Director of the Central Directorate for Immigration and Border Police was appointed as the main person responsible for the implementation of these programs, with the General and Legal Affairs Office being the responsible office for negotiating and drafting the procurement process. The person responsible for the administrative-accounting sector of the Office, Daniele Bernardo, has signed most of the procurement decisions.
b. Immigration Services (Servizio Immigrazione). This service takes care of the administrative and operational activities in the “fight” against “irregular” immigration and the related international police cooperation. The Executive Directors of the office were Vittorio Pisani (2015 - 2019) and Fabrizio Mancini (2019 – 2024).
The following two divisions are of relevance for this Communication:
i. The Second Division coordinates the services of migration control, as well as the joint operations organized by Frontex. This Division hosts the National Coordination Centre for Immigration (Centro nazionale di coordinamento per l'immigrazione), established by decree of the Chief of Police on January 20, 2012, which acts as a control room for the monitoring and coordination of surveillance operations at sea. Various operators from the Navy, the Coast Guard, the Guardia di Finanza and the Carabinieri collaborate in the Centre. The National Centre also collaborates with the international agencies Europol, Frontex and Interpol for the development of single or specific informative or investigative initiatives.1534Interior Ministry, Direzione centrale dell’Immigrazione e della Polizia delle frontiere, https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza/direzione-centrale-dellimmigrazione-e-polizia-frontiere, retrieved on 13/10/2020 [https://web.archive.org/web/20250401132853/https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-pubblica-sicurezza/direzione-centrale-dellimmigrazione-e-polizia-frontiere] The Directors of this Division were Rosa Maria Preteroti and Tiziana Liguori.
ii. The Third Division deals with matters on international police on migration matters, it is responsible for the elaboration, development and implementation of technical assistance projects with non-EU countries. This division has been the most involved for the preparatory talks that led to the Memorandum of Understanding. This Division has been led by Luigi Iandoli.
Moreover, since 2019 the Third Division hosts the National Frontex Point of Contact ((NFPoC - Punto Nazionale di Contatto Frontex), which has an operational coordination role in the context of the activities of optimization and harmonization of controls at the external borders of the European Union. The National Frontex Point of Contact had been headquartered in the General and Legal Affairs Office of this Directorate from 2012 to 2019.1535Interior Ministry, Decreto No 555/RS/01/58/4812 of 27 February 2019 from the Head of Police, https://mpnazionale.it/op1/wp-content/uploads/2019/02/Punto-Nazionale-di-Contatto-FRONTEX-.pdf, retrieved on 18/04/2025 [https://web.archive.org/web/20250418131038/https://mpnazionale.it/op1/wp-content/uploads/2019/02/Punto-Nazionale-di-Contatto-FRONTEX-.pdf]
c. Border and Immigration Police Service (Servizio Polizia delle Frontiere e degli Stranieri). This service coordinates all activities of border police and the immigration offices at the police headquarters.
· Department of Civil Liberties and Immigration (Dipartimento per le Libertà civili e l'Immigrazione).
The department is divided into several offices and Central Directorates.1536Interior Ministry, Dipartimento per le Libertà civili e l’Immigrazione, https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-liberta-civili-e-limmigrazione, retrieved on 13/10/2020 [https://web.archive.org/web/20201013140649/https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-liberta-civili-e-limmigrazione/direzione-centrale-politiche-dellimmigrazione-e-dellasilo] With regard to the analyzed policies, the Central Directorate for Immigration and Asylum Policy (Direzione Centrale per le Politiche dell'immigrazione e dell'asilo) is the most relevant office. It contributes to the definition of the Government's migration policies, and it supports the Ministry of the Interior both in pursuing objectives of public order and security - through the “fight” against “irregular” immigration - and in promoting the reception and integration of immigrants.1537Interior Ministry, Dipartimento per le Libertà civili e l’Immigrazione, https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-liberta-civili-e-limmigrazione, retrieved on 13/10/2020 [https://web.archive.org/web/20201013140649/https://www.interno.gov.it/it/ministero/dipartimenti/dipartimento-liberta-civili-e-limmigrazione/direzione-centrale-politiche-dellimmigrazione-e-dellasilo]
This Department is involved in the reception and distribution on the national territory of newly arrived migrants. In years in which arrivals peaked, this Department faced great issues in finding a point of contact with Italian municipalities, which were not willing to open reception centers on their territory as anti-migration sentiment was spreading across the country. Evidence suggests this Department, especially via the Central Directorate for Immigration and Asylum Policy, was involved in the government’s attempt to limit arrivals to reduce the number of arrivals in order to mitigate the political backlash.1538Interviewee I66 The Head of the Department was Mario Morcone (2014 – 2017), who was then appointed Chief of Minniti’s Cabinet.
VMinistry of Foreign Affairs and International Cooperation
The role of the Italian Ministry of Foreign Affairs and International Cooperation was crucial in the design and implementation of so-called “humanitarian interventions” in Libya, including the allocation of funds to institutions that have been repeatedly reported as participating in the joint criminal enterprise against migrant population stranded in Libya. The Ministry was reportedly responsible for advancing the idea that development programs could curb the migration “flow”.1539Action Aid Italia, The Big Wall, 2021 https://thebigwall.org/en/, retrieved on 03/03/2021 [https://web.archive.org/web/20210303103843/https://www.thebigwall.org/en/] This approach was clearly identified in the Program of the Italian Presidency at the European Council in 2014, which laid out Italy’s goal to “advance discussions on mainstreaming migration into development policies and interventions.”15402014 Italian Presidency of the Council of the European Union, Europe a Fresh Start, Programme of the Italian Presidency of the Council of the European Union, 2014, http://italia2014.eu/media/1349/programma_en1_def.pdf, retrieved on 13/10/2020 [https://web.archive.org/web/20200717190715/http://italia2014.eu/media/1349/programma_en1_def.pdf], p. 17.
The organization of the Ministry of Foreign Affairs and International Cooperation is regulated by Presidential Decree no. 95 of 19 May 2010 and subsequent amendments.1541President of the Italian Republic, Decreto del presidente della repubblica 19 maggio 2010, n. 95, 24/06/2010, https://www.gazzettaufficiale.it/gunewsletter/dettaglio.jsp?service=1&datagu=2010-06-24&task=dettaglio&numgu=145&redaz=010G0118&tmstp=1278071389133, retrieved on 09/10/2020 [https://web.archive.org/web/20201013140823/https://www.gazzettaufficiale.it/gunewsletter/dettaglio.jsp?service=1&datagu=2010-06-24&task=dettaglio&numgu=145&redaz=010G0118&tmstp=1278071389133]
In the relevant period, the Ministers were, successively, Emma Bonino (April 2013 – February 2014), Paolo Gentiloni (February 2014 – December 2016), Angelino Alfano (December 2016 – March 2018), Enzo Moavero Milanesi (March 2018 – September 2019) and Luigi Di Maio (September 2019 – October 2022).
The Minister avails himself of the collaboration of Deputy Ministers and Undersecretaries to whom he/she may delegate certain responsibilities in his political activities. In the timeframe analyzed in this Communication, Mario Giro was Undersecretary (2013 – 2016) and then Deputy Minister (March 2016 – June 2018).
Other Undersecretaries were successively Benedetto Dalla Vedova (2014 – 2018 and 2021 – 2022), Vincenzo Amendola (2016 – 2018), Emanuela Claudia Del Re (2018 – 2021), Manlio Di Stefano (2018 – 2022), Ricardo Antonio Merlo (2018 – 2021), Guglielmo Picchi (2018 – 2019), Marina Sereni (2019 –2020), Ivan Scalfarotto (2019 – 2021).
Some of these undersecretaries have been particularly involved in designing and implementing cooperation programs that were aimed at boosting Libya’s capacities in migration management. Mario Giro was involved in the engagement of Italian NGOs in Libyan detention centers (cf. Chapter D(iv). paragraph “Italian support for detention centres”), while Vincenzo Amendola led dialogues with Libyan municipalities on migration management that were justified on humanitarian grounds (cf. Chapter D(i). “Bilateral Efforts – Italy-Libya Memorandum of Understanding).
The Ministry of Foreign Affairs and International Cooperation is structured hierarchically, with the Minister directly assisted by a Secretary General in drawing up the guidelines and programs of the Ministry, and supervising the action of the Administration and ensuring the continuity of its functions, coordinating its offices and activities.1542Italian Parliament, Riforma dell’organizzazione del Governo, a norma dell’articolo 11 della legge 15 marzo 1997, n. 59, 30 July 1990, http://www.parlamento.it/parlam/leggi/deleghe/99300dl.htm, retrieved on 09/10/2020 [https://web.archive.org/web/20201011230846/http://www.parlamento.it/parlam/leggi/deleghe/99300dl.htm] article 6(2). In the absence of the Minister, the Secretary General chairs the Board of Directors, i.e. the body that evaluates the strategic guidelines and the overall action of the Ministry. The Secretary General is assisted by a Vice Secretary General.
In the relevant period, the Secretary General were successively Michele Valensise (2012-2016) and Elisabetta Belloni (2016 –2021). The Vice Secretary General was successively Antonio Bernardini (2013 – 2016) Michele Baiano (2016 – present).
The Ministry’s internal subdivisions, which are made up of different units and offices, are regulated by Ministerial Decree no. 233 of 3 February 2017, as amended by Ministerial Decree no. 1202/2722 of 20 December 2019.1543Foreign Affairs Ministry, Il Ministro degli Affari Esteri e della Cooperaxione Internazionale, 7/02/2017, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj-hYzqvMzrAhW8UhUIHdliB9MQFjAAegQIARAB&url=https%3A%2F%2Fwww.esteri.it%2Fmae%2Fresource%2Fdoc%2F2017%2F02%2Friorgmae2017-02-08.pdf&usg=AOvVaw2kHonm3zcDX4B1M6wdw2Me, retrieved on 09/10/2020 [https://web.archive.org/web/20200728234527/https://www.esteri.it/mae/resource/doc/2017/02/riorgmae2017-02-08.pdf] The work of the Ministry is supported by the Cabinet, the General Secretariat, the Diplomatic Protocol, the Office of the Inspector General and eight Directorates General (DG), who support the work of the Ministry in specific sectors.
For the purposes of this Communication, the most relevant DGs are the following:
· DG Italian Citizens Abroad and Migration Policies (DG Italiani all’Estero e Politiche Migratorie) – Advises upon and designs policies that are related to migration and multilateral cooperation in the field of migration. In particular, the Office V- Migration policies, international protection, international deployments (Politiche migratorie, protezione internazionale, adozioni internazionali) works on issues related to international cooperation and migration management.1544Foreign Affairs Ministry, Direzione Generale per gli italiani all’estero e le politiche migratori, https://www.esteri.it/mae/it/ministero/struttura/dgitalianiestero, retrieved on 09/10/2020 [https://web.archive.org/web/20200902233817/https://www.esteri.it/mae/it/ministero/struttura/dgitalianiestero/] This DG was involved in the management and allocation of funds made available via the Fondo Africa, whose 12.5 million euros were spent on border management projects in Libya (cf. Chapter D(iii). “The financial framework established by Fondo Africa, the EUTFand the Missioni Internazionali”). The General Directors of this DG were successively Cristina Ravaglia (2014 – 2017) and Luigi Maria Vignali (2017 – present), who was previously Deputy General Director/Principal Director for migration policies and international mobility (2014 – 2017). The post of Deputy General Director/Principal Director for migration policies and international mobility was then held by Paolo Crudele (2017 – 2022). The Chiefs of Office V- Migration policies, international protection, international deployments (Politiche migratorie, protezione internazionale, adozioni internazionali) were succesively Benedetto Giuntini (2014 – 2017), Enrico Nunziata (2017 – 2019), Paolo Mari (2019 – 2021).
· DG for Development Cooperation (DG Cooperazione allo Sviluppo) – As per Law 125/2014 (General law on international development cooperation), this DG assists the Minister in the elaboration of guidelines for planning interventions; political representation and coherence of Italy's action within international organisations and bilateral relations; and humanitarian emergency operations.1545Foreign Affairs Ministry, Direzione Generale par la cooperazione allo sviluppo, https://www.esteri.it/mae/it/ministero/struttura/dgcoopsviluppo, retrieved on 09/10/2020 [https://web.archive.org/web/20200902233807/https://www.esteri.it/mae/it/ministero/struttura/dgcoopsviluppo/] The General Directors of this DG were successively Giampaolo Cantini (2014 – 2016), Pietro Sebastiani (2016 – 2017), Giorgio Marripodi (2018 – 2022). The Deputy Director General/Principal Director for general affairs and development cooperation policy orientation were successively Luca Maestripieri (2014 – 2019), Sergio Pagano (2019 – 2020), Mauro Marsili (2020 – 2021). The Deputy Director General/Principal Director for general affairs and development cooperation policy orientation oversees Office I - Development cooperation policies within the European Union (Politiche di cooperazione allo sviluppo nell’ambito dell’Unione Europea), Office II - Development cooperation guidelines and planning (Indirizzo e programmazione della cooperazione allo sviluppo), Office III - Assessment of interventions and supervision of the Italian Development Cooperation Agency (Valutazione degli interventi e vigilanza sull’Agenzia Italiana per la Cooperazione allo Sviluppo). Law 125/2014 also establishes the Italian Agency for Development Cooperation (AICS), which is assisted by the DG Development Cooperation.1546Italian Agency for Development Cooperation, Profile and objectives, https://www.aics.gov.it/home-ita/agenzia/profilo/ retrieved on 09/10/20 The Agency’s work is the main designer of the intervention in Libya, within the framework of the Italian cooperation policies in the Libyan detention centers.1547OpenAid Italia, Libya, http://openaid.esteri.it/en/code-lists/recipients/133/, retrieved on 09/10/2020 [https://web.archive.org/web/20201013141507/http://openaid.esteri.it/en/code-lists/recipients/133/] The Directors of the Italian Agency for Development Cooperation (AICS) were successively Laura Frigenti (2016 – 2018), Leonardo Carmenati (2018 – 2019), Luca Maestripieri (2019 – 2023).
Finally, some officers of the Ministry of Foreign Affairs and International Cooperation with the rank of Ambassador are appointed as Diplomatic Advisors to almost all Ministries. The Diplomatic Advisors oversee matters of international relations. The following ambassadors have held the role of Diplomatic Advisor to the Ministers of Interior: Paola Amadei to the Minister of Interior Marco Minniti (2017 – 2018), Stefano Beltrame to the Minister of Interior Matteo Salvini (2018 – 2019), Andrea Trittico to the Minister of Interior Luciana Lamorgese (2019 – 2022).
Italy’s interests are represented at various European Union levels through its Permanent Representation. The Representation is composed of members of the Ministry of Foreign Affairs and experts from other parts of the national administration.1548Permanent Representation of Italy to the European Union, The Permanent Representation, https://italiaue.esteri.it/rapp_ue/en/ambasciata, retrieved on 09/10/2020 [https://web.archive.org/web/20201013141628/https://italiaue.esteri.it/rapp_ue/en/ambasciata/] Its members attend the Coreper I and II and the Political and Security Committee, therefore inhabiting key roles to shape policies and discussions within the Council of the European Union and beyond.1549Permanent Representation of Italy to the European Union, Our Mission, https://italiaue.esteri.it/rapp_ue/en/ambasciata, retrieved on 09/10/2020 [https://web.archive.org/web/20210127073016/https://italiaue.esteri.it/rapp_ue/en/ambasciata/cosa_facciamo/] Italian officials are also part of various Council preparatory bodies and are responsible for inter-country and inter-institution coordination.1550Permanent Representation of Italy to the European Union, The Permanent Representation, https://italiaue.esteri.it/rapp_ue/en/ambasciata, retrieved on 09/10/2020 [https://web.archive.org/web/20201013141628/https://italiaue.esteri.it/rapp_ue/en/ambasciata/]
The head of the Mission is the Permanent Representative, who is assisted by the Deputy Permanent Representative. Italian head Permanent Representatives to the Coreper II have successively been Stefano Sannino (2013 – March 2016), Carlo Calenda (March 2016 – June 2016), and Maurizio Massari (June 2016 – May 2021). Marco Peronaci (2012 – 2015), Giovanni Pugliese (2016 – 2018) and Michele Quaroni (2018 – 2021) have held the position of Ambassador to the Coreper I. At the Political and Security Committee, Italy was represented by Alessandro Cortese (2014 – November 2016), Luca Franchetti Pardo (December 2016 – January 2020) and Marco Peronaci (February 2020 – 2022). In 2014 and 2015, the counsellor for Defence in the Permanent representation was Emilio Foltzer.
VIMinistry of Defense and the Italian Navy
The prerogatives and responsibilities of the Minister of Defense are established by Article 10 of Legislative Decree n. 6.1551Italian Parliament, “Codice dell’ordinamento militare” Decreto Legislativo 15 marzo 2010, n.66, https://www.parlamento.it/parlam/leggi/deleghe/10066dl.htm, retrieved on 29/03/2021 [https://web.archive.org/web/20210509155137/https://www.parlamento.it/parlam/leggi/deleghe/10066dl.htm] The Minister implements resolutions on defense and security adopted by the Government, issues guidelines on military policy, participates in all European and international organisations concerning national defence and military security; and approves joint military and operational planning.1552Ministry of Defence, Compiti istituzionali del ministro, https://www.difesa.it/Il_Ministro/compiti_istituzionali/Pagine/default_.aspx, retrieved on 29/03/2021 [https://web.archive.org/web/20210410210957/https://www.difesa.it/Il_Ministro/compiti_istituzionali/Pagine/default_.aspx]
The Minister implements the military guidelines and is assisted in their function by two Undersecretaries to which specific matters can be delegated.1553President of the Italian Republic, Decreto del presidente della repubblica 3 agosto 2009, n. 145, 21 October 2009, https://www.gazzettaufficiale.it/eli/id/2009/10/21/009G0153/sg, retrieved on 09/10/2020 [https://web.archive.org/web/20200811035007/https://italiaue.esteri.it/rapp_ue/en/ambasciata]
The Ministers were successively Mario Mauro (April 2013 – February 2014), Roberta Pinotti (February 2014 – June 2018), Elisabetta Trenta (June 2018 – September 2019), and Lorenzo Guerini (September 2019 – October 2022).
The two Undersecretaries were successively Roberta Pinotti and Gioacchino Alfano (April 2013 – February 2014), and Domenico Rossi (February 2014 – June 2018), Angelo Tofalo and Raffaele Volpi (June 2018 – September 2019), Angelo Tofalo and Giulio Calvisi (September 2019 – February 2021), and Giorgio Mulé and Stefania Pucciarelli (February 2021 – October 2022).
Under the mandate of the Minister, the Chief of the Defense General Staff coordinates the operational area of the Ministry, namely the four armed forces, which are: the Army, the Navy, the Air Force and the Army of the Carabinieri.1554Defence Ministry, Chief of Defence, https://www.difesa.it/SMD_/CaSMD/Pagine/Biografia.aspx?lang=en, retrieved on 09/10/2020 [https://web.archive.org/web/20200810155614/https://www.difesa.it/SMD_/CaSMD/Pagine/Biografia.aspx?lang=en]
The Chiefs of the Defense General Staff were successively Luigi Binelli (January 2013 – February 2015), Claudio Graziano (February 2015 – November 2018) and Enzo Vecciarelli (November 2018 – November 2021)
The Italian Navy played the most significant role in the analyzed policies and has been one of the main actors involved in the implementation of the main Italian and European operations in the Mediterranean, namely Mare Nostrum, and Mare Sicuro, and EUNAVFOR MED Operation Sophia.
The Italian operations Mare Nostrum and Mare Sicuro have been headed by the Chief of the Italian Navy during their respective mandates. The Chiefs of Staff of the Italian Navy were successively: Giuseppe de Giorgi (January 2013 – June 2016), Valter Girardelli (June 2016 – June 2019) and Giuseppe Cavo Dragone (June 2019 – November 2021).
The European Union operation EUNAVFOR MED Operation Sophia was headed by the Italian admiral Enrico Credendino from May 2015 to February 2020, and by Rear Admiral Fabio Agostini from February 2020 to March 2020, when the Operation’s mandate expired. Agostini has then served as the Commander of Operation Sophia’s successor, Operation Irini.
The Ministry has been tasked with coordinating the Italian participation in these operations:
Joint Operation Triton. The Operation is under the command of the Italian Ministry of the Interior, in cooperation with Guardia di Finanza and the Italian Coast Guard.1555Frontex, Frontex launches Joint Operation Triton, https://frontex.europa.eu/media-centre/news/news-release/frontex-launches-joint-operation-triton-JSYpL7, retrieved on 29/03/2021 [https://web.archive.org/web/20250316114900/https://www.frontex.europa.eu/media-centre/news/news-release/frontex-launches-joint-operation-triton-JSYpL7]
Joint Operation Themis. All assets deployed for the Operation are under the command of the Italian Ministry of the Interior.1556Frontex, Main Operations: Operation Themis, https://frontex.europa.eu/we-support/main-operations/operation-themis-italy-/, retrieved on 29/03/2021 [https://web.archive.org/web/20210306054720/https://www.frontex.europa.eu/we-support/main-operations/operation-themis-italy-/]
Missione bilaterale di assistenza e supporto in Libia (MIASIT). The Brigade Generals in command of MIASIT were successively: Ignazio Lax (January 2018 – November 2018), Domenico Ciotti (November 2018 – July 2019), Alessio Cavicchioli (July 2019 – October 2019), Maurizio Fronda (October 2019 – August 2020), Roberto Vergori (August 2020 – October 2021).
Italy also participated in the following missions in Libya during the relevant time period:
United Nations Support Mission in Libya (UNSMIL)
European Border Assistance Mission in Libya (EUBAM).
VIIvii) Ministry of Transport and Infrastructure
Pursuant to Article 134 of Legislative Decree No. 66 of 15 March 2010, the Corpo delle Capitanerie di Porto – Guardia Costiera carries out functions under the authority of the Ministry of Infrastructure and Transport, including search and rescue operations, maritime safety, and navigation control.1557Decreto Legislativo 15 marzo 2010, n. 66 - Codice dell’ordinamento militare, https://olympus.uniurb.it/index.php?Itemid=137&catid=5&id=3771%3Adecreto-legislativo-15-marzo-2010-n-66-codice-dellordinamento-militare&option=com_content&view=article&utm_, retrieved on 09/10/2024 [https://web.archive.org/web/20230207190532/https://olympus.uniurb.it/index.php?option=com_content&view=article&id=3771:decreto-legislativo-15-marzo-2010-n-66-codice-dellordinamento-militare&catid=5&Itemid=137
For the policies and events analyzed in this Communication, the organization and the work of the Ministry and the Coast Guard is essential to understand the coordination of search and rescue activities in the Mediterranean and the collaboration with the Libyan counterparts.
The Ministers were successively Maurizio Lupi (April 2013 – February 2014), Graziano Delrio I (February 2014 – December 2016) and II (December 2016 – March 2018), Lorenzo Toninelli (March 2018 – September 2019) and Paola De Micheli (September 2019 – February 2021).
(a) The Italian Coast Guard and the Italian MRCC (ITMRCC)
The Italian Coast Guard carries out the functions falling within the competence of the Ministry of Transports in matters concerning search and rescue at sea and in major lakes.1558President of the Italian Republic, Decreto del presidente del consiglio dei ministri 11 febbraio 2014, n. 72, https://www.gazzettaufficiale.it/eli/id/2014/05/08/14G00084/sg, retrieved on 09/10/2020 [https://web.archive.org/web/20190310142641/http://www.gazzettaufficiale.it/eli/id/2014/05/08/14G00084/sg] article 13(2).
The Coast Guard is divided into a central structure (Executive Decree n.1211 of 20/11/2009) and a peripheral one. According to Decree no. 1518/2019, the General Command of the Coast Guard (Comando generale del Corpo delle capitanerie di porto – Guardia Costiera) is responsible for the coordination and control of all the activities carried out by the Harbor Masters (Capitanerie di Porto) and for the general coordination of search and rescue activities. According to article 11 of Law No 189/2002 relating to the amendment of immigration and asylum laws, the Coast Guard contributes to the “fight” against “illegal” immigration,1559Guardia Costiera, Organigramma, https://www.guardiacostiera.gov.it/organizzazione/Pages/organigramma.aspx, 09/10/2020, retrieved on [https://web.archive.org/web/20240223071500/https://www.guardiacostiera.gov.it/organizzazione/Pages/organigramma.aspx] which is itself coordinated by the Ministry of the Interior. The influence the Ministry of the Interior exerted on the Coast Guard is key in order to understand the drastic change in approach to Search and Rescue operations since 2017.
The General Commanders in chief were successively Felicio Angrisano (June 2013 – November 2015), Vincenzo Melone (November 2015 – February 2018), Giovanni Pettorino (February 2018 – July 2021).
The General Command is organized into seven Departments, and each Department is divided in several offices. With regard to the policies and events analyzed in this Communication, the 3rd Department of the General Command – Plans and Operations (Piani e Operazioni) played a fundamental role. The department deals with the operational part of the work of the Coast Guard, it coordinates the Search and Rescue operations in the Central Mediterranean and is responsible for the Italian Maritime Rescue Coordination Center (ITMRCC).1560Guardia Costiera, Comando Generale, https://www.guardiacostiera.gov.it/organizzazione/Pages/comando-generale.aspx, retrieved on 09/10/2024 [https://web.archive.org/web/20240223071500/https://www.guardiacostiera.gov.it/organizzazione/Pages/organigramma.aspx]
The 3rd Department is composed of a Secretariat and four offices:1561Guardia Costiera, Uffici terzo reparto - piani e operazioni, https://www.guardiacostiera.gov.it/organizzazione/Pages/uffici-terzo-reparto.aspx, retrieved on 09/10/2024
Secretariat: coordinates the administrative and human resources affairs at the Department.
Office I – Plans: deals with the general planning of the Department, and it elaborates the policy proposals on maritime security on Search and Rescue matters and maritime surveillance. Section Two of this Department is responsible for designing international planning on maritime matters, while Section Three deals with technical-operational and training planning. The Chiefs of Office I were successively Sandro Gallinelli (2014 – 2017) and Claudio Manganiello (2017–2019), Giuseppe Aulicino (2019 – until at least 2022).
Office II – Operations: Leads the operational command towards the naval and arial assets of the Coast Guard. Section Four of this Office coordinates the joint international operations, deploys assets of the Italian Coast Guard in support of European Union bodies, e.g. European Border and Coast Guard Agency, and contributes to the operational part of integrated border management. The Chiefs of Office II were successively Paolo Cafaro, Vittorio Pagotto, Daniele Giannelli.
Office III – Operation Room/Italian Maritime Rescue Coordination Centre (IMRCC). This Office is one of the most relevant to the policies analyzed in this Communication, as the IMRCC receives the requests of boat in distress and it is responsible for coordinating the emergency rescue operations by identifying which vessel should assume command over the search and rescue operation and indicating the designated place of safety.1562International Maritime Organization, International Convention on Maritime Search and Rescue (SAR), https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Maritime-Search-and-Rescue-(SAR).aspx, retrieved on 03/03/2021 [https://web.archive.org/web/20210303174734/https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Maritime-Search-and-Rescue-(SAR).aspx] The Chiefs of Office II were successively Leopoldo Manna, Sergio Liardo and then Andrea Tassara. The latter has been indicated as being very close to the political line of the Ministry of Interior. In fact, since Andrea Tassara has been appointed Chief of Office III of the IMRCC, the Italian Coast Guard has carried out several coordination efforts of rescue operations that led to de facto ‘pull-backs’ to Libya and has impeded disembarkation in Italian ports.1563Interviewee I75 1564Interviewee I74
The Heads of the 3rd Department – Plans and Operations were successively Giovanni Pettorino (2013 – 2015), Nicola Carlone (2015 – 2018), and Sergio Liardo (2018 – 2021). The latter two have brought about a decisive shift within the Coast Guard.
Nicola Carlone was responsible for the implementation of the grant agreement “Assessment of the Libyan Coast Guard legal framework and capability in terms of Search and Rescue Services,” which led to the establishment of the Libyan Search and Rescue (cf. Chapter D(v), “Ousting SAR NGOs and Obstructing Search and Rescue operations”). Under Sergio Liardo’s command, the 3rd Department of the Italian Coast Guard contributed to making the closed ports policy effective by not providing a port of disembarkation to vessels that had carried out SAR operations outside Italian waters (cf. Chapter D(v), “Ousting SAR NGOs and Obstructing Search and Rescue operations”).
The work of the 3rd Department of the Italian Coast Guard increasingly matched the objectives of the Italian Ministry of Interior, although the General Commander in chief of the Italian Coast Guard Giovanni Pettorino has always taken a critical position with regard to the government’s position on SAR operations.1565Interviewee I75 However, he has been relatively isolated within the Coast Guard, and a direct channel of communication was opened between the Ministry of the Interior and the Italian Maritime Rescue Coordination Center (IMRCC).1566Interviewee I74 1567Interviewee I75
VIIIMinistry of Economics and Finance
The Italian Ministry of Economics and Finance is another relevant entity within the analyzed policies. It is the Ministry of reference for the Customs Police, i.e. the Guardia di Finanza, a special law enforcement agency which is tasked with the prevention, investigation and reporting of financial crimes, as well as with surveillance at sea for financial police purposes.
The Ministry of Economy and Finance is organized into four departments and, as noted above, the Finance Department specifically oversees the work of the Guardia di Finanza.
IXThe Guardia di Finanza
The Guardia di Finanza is a militarized police force and is an integral part of the Armed Forces of the Italian State. The Guardia di Finanza is responsible for the surveillance of maritime borders for the purposes of “combating” “illegal” immigration within the territorial sea and the contiguous area. This includes activities related to international cooperation operations under the aegis of the European Border and Coast Guard Agency (Frontex), in which the Guardia di Finanza is assigned the exclusive role of tactical coordination in Italian territorial waters.
The decree of the Minister of the Interior of 15 August 2017,1568Interior Ministry, Programma Governo, www.programmagoverno.gov.it%2Fmedia%2F3510%2Fdlgs-177_16-art-3-co-1.pdf&usg=AOvVaw1fA6AaKUXULnOGrvJT1twE, retrieved on 09/10/2020 [https://web.archive.org/web/20190417213116/http://www.programmagoverno.gov.it/media/3510/dlgs-177_16-art-3-co-1.pdf] concerning the Directive on the specialty divisions, entrusted the Guardia di Finanza Corps with the “safety of the sea” division, by identifying the Guardia di Finanza as the only police force responsible for ensuring public order and security services in the maritime environment.
The operations at sea are conducted by the Central Air Naval Command (Comparto Aereonavle) of the Guardia di Finanza. The Central Air Naval Command works in close cooperation with Frontex to patrol the Central Mediterranean and “combat” the “irregular” migration fluxes.1569Guardia di Finanza, Aeronavale Operational Command, https://www.gdf.gov.it/chi-siamo/organizzazione/specializzazioni/comparto-aeronavale/organizzazione/compiti-istituzionali, retrieved on 09/10/2020 [https://web.archive.org/web/20201013142046/http://www.gdf.gov.it/chi-siamo/organizzazione/specializzazioni/comparto-aeronavale/organizzazione/struttura/comando-operativo-aeronavale] In this capacity, for example, the Guardia di Finanza has played a key role in leading the administrative seizures towards NGOs that conduct search and rescue operations.
In the relevant period, the General Commanders in chief of the Guardia di Finanza were successively Saverio Capolupo, Giorgio Toschi, and Giuseppe Zafarana. The General Commanders in chief of the Central Air Naval Command were successively Mario Marco Angeloni, Francesco Saverio, and Giuseppe Tossini.
XJudicial Institutions
The Italian judicial system is governed by Royal Decree No. 12 of January 30, 1941 and subsequent amendments thereof. As regards criminal justice, the most recent reform is contained in Legislative Decree no. 106 of February 20, 2006. The Judiciary is enshrined in the Constitution in article 104, where it is identified as “[…] a branch that is autonomous and independent of all other powers.”
The Italian judiciary is governed by the High Council of the Judiciary (Consiglio Superiore della Magistratura), which manages all matters pertaining to the career paths of judges. According to law number 44 of 2002, the High Council is composed of 27 members. As established by the constitution, the High Council is presided by the President of the Republic. The President of the Council and the general prosecutor of the Court of Cassation are members.
16 High Council members are elected by all the ordinary judges belonging to the various categories, while the remaining 8 High Council members are elected by the Parliament in a joint session, via secret ballot, among members of the Parliament who are law university professors and lawyers with at least 15 years of practice. Among these 8 High Council members, the vice-president of the Superior Council of the Magistracy is elected. Historically this role has been filled primarily by people who had already been members of the Parliament or the Government. Out of the 19 vice presidents who have been elected since 1959, 11 had held political offices at the national level prior to their election as vice presidents.1570Openpolis, Il Csm, tra rapporti con la politica e ipotesi di riforma. June 2020, https://www.openpolis.it/il-csm-tra-rapporti-con-la-politica-e-ipotesi-di-riforma/, retrieved on 03/03/2021 [https://web.archive.org/web/20250316115355/https://www.openpolis.it/il-csm-tra-rapporti-con-la-politica-e-ipotesi-di-riforma/] The vice-president plays a crucial role in the regular activity of the High Council of the Judiciary. In the relevant period, the vice-presidents were successively Giovanni Legnini (2014 – 2018) and David Ermini (2018 – 2023).
The Judiciary operates through the Public Prosecutor's Offices (Procura della Repubblica), which are headed by a Public Prosecutor (Procuratore della Repubblica). The Public Prosecutor's Office may initiate a preliminary criminal investigation when there is a fact that may constitute a crime.
Since 2017, several Public Prosecutors have opened investigations against European NGOs engaged in sea rescue operations. The charges have ranged from aiding illegal immigration to crimes related to waste disposal. The Prosecutors that have led legal proceedings against private entities involved in search and rescue operations are Carmelo Zuccaro, Public Prosecutor of Catania since 2016; Fabio D’Anna, Public Prosecutor of Ragusa since 2017; Ambrogio Cartosio, Public Prosecutor of Ragusa from 2011 to 2017, and then Public Prosecutor of Termini Imerese.
Almost all of these investigations have since been dropped. However, they have hindered the life-saving operation of these NGOs, have contributed to a climate of mistrust towards their work, and have helped legitimize the operations of the Libyan authorities who, since 2017, have been identified as the sole authority to conduct “rescues” in the Central Mediterranean (cf. Chapter D(v), “Ousting SAR NGOs and Obstructing Search and Rescue operations”).
The aforementioned Prosecutors of the Republic have allegedly abused their judicial power for political purposes and by so doing have participated in the Joint Criminal Enterprise in the Central Mediterranean route. The High Council of the Magistracy has never distanced itself from the positions taken by these Prosecutors' Offices. In a case opened by Zuccaro in 2017, it even provided support to the Prosecutor's Office of Catania.1571SCAVO, N., “Sul procuratore Zuccaro si muove il Csm. Politica spaccata,” Avvenire, 29/04/2017 https://www.avvenire.it/attualita/Pagine/su-zuccaro-si-muove-il-csm, retrieved on 17/07/2024 [https://web.archive.org/web/20250316115500/https://www.avvenire.it/attualita/Pagine/su-zuccaro-si-muove-il-csm]
C1st Policy: The Mediterranean (2013-2015)
ITermination of Mare Nostrum (2014)
On 3 October 2013, at least 366 refugees lost their lives when their boat sank less than a mile off the coast of Lampedusa. The President of the European Commission, Jose Barroso, EU Commissioner Cecilia Malmström, and Italian President of the Council Enrico Letta paid a visit to Lampedusa in the aftermath of these events.1572RIEGERT, B., “Schock-Therapie auf Lampedusa,” DW, 09/10/2013, https://www.dw.com/de/geschockter-barroso-verspricht-hilfe/a-17147806; retrieved on 17/07/2024 [https://web.archive.org/web/20250316115528/https://www.dw.com/de/geschockter-barroso-verspricht-hilfe/a-17147806] Another lethal shipwreck occurred a week later, taking the lives of about 260 people, among them 60 children (“The Children Shipwreck”). Italy had previously deployed naval and aerial assets to monitor refugee “flows” in the Strait of Sicily as part of operation “Constant Vigilance”, which had been in place since 2004.1573CARRERA, S. and DEN HERTOG, L., “Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean,” 2015, Liberty and Security in Europe, 79(3), https://www.files.ethz.ch/isn/188072/LSE_79.pdf, retrieved on 09/10/2020,[https://web.archive.org/web/20201011234920/https://www.files.ethz.ch/isn/188072/LSE_79.pdf], p. 3. 1574Italian Navy, Mare Nostrum Operation, https://www.marina.difesa.it/EN/operations/Pagine/MareNostrum.aspx, retrieved on 09/10/20n the wake of the Lampedusa shipwrecks, Rome got more serious about its search and rescue obligations. On 18 October 2013, the Italian Government, led by the President of the Council Enrico Letta, launched Operation Mare Nostrum,1575Defence Ministry, Mare Nostrum Operation, retrieved on 29/05/2020, http://www.marina.difesa.it/EN/operations/Pagine/MareNostrum.aspx 1576PANEBIANCO, S., “The Mare Nostrum Operation and the Search and Rescue approach: the Italian response to address the Mediterranean migrant crisis,” 2016 EUMedEA Online Working Paper Series, https://www.researchgate.net/publication/303480756The_Mare_Nostrum_Operation_and_the_Search and Rescue_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis, retrieved on 09/10/2020 [https://web.archive.org/web/20201011234508/https://www.researchgate.net/publication/303480756_The_Mare_Nostrum_Operation_and_the_SAR_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis], p. 12. 1577MUSARO, P., “Mare Nostrum: The Visual Political of a Military-Humanitarian Operation in the Mediterranean Sea,” 2017, Media Culture & Society 3(1), https://doi.org/10.1177/0163443716672296, retrieved on 09/10/2020 [https://web.archive.org/web/20180620135756/http://journals.sagepub.com/doi/10.1177/0163443716672296] a “military and humanitarian operation” of the Italian Navy, with the declared aim of “rescuing all migrants” in distress in the Strait of Sicily and bringing human traffickers to justice.
Under Mare Nostrum, the Italian navy patrolled a 70,000 square kilometers swath of the Mediterranean Sea,1578DAVIES, L. and NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,’” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] an area that encompassed the search and rescue zones of Libya and Malta as well as Italy.1579European Political Strategy Centre, Irregular Migration via the Central Mediterranean – From Emergency Responses to systemic solutions, 02/02/2017, https://op.europa.eu/en/publication-detail/-/publication/959407ea-ed03-11e6-ad7c-01aa75ed71a1, retrieved on 12/06/2025 [https://web.archive.org/web/20240623194752/https://op.europa.eu/en/publication-detail/-/publication/959407ea-ed03-11e6-ad7c-01aa75ed71a1], p. 3. The operation carried out carried out 421 missions during the period between October 18th 2013 and its last day of operation on October 31st 2014,1580DAVIES, L. and NELSEN, A., “Italy: end of ongoing sea rescue mission ‘puts thousands at risk,’” The Guardian, 31/10/2014, https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk, retrieved on 07/10/2020 [https://web.archive.org/web/20201007214537/https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk] in which more than 100,250 migrants were rescued by Mare Nostrum, while more than 3,300 other migrants died at sea attempting to cross the Mediterranean during this same interval.1581SCHERER, S. and DI GIORGIO, M., “Italy to end sea rescue mission that saved 100,000 migrants” Reuters, 31/10/2014, https://www.reuters.com/article/us-italy-migrants-eu-idUSKBN0IK22220141031/, retrieved on 12/06/2025 [https://web.archive.org/web/20230604111609/https://www.reuters.com/article/us-italy-migrants-eu-idUSKBN0IK22220141031]
In financial terms, the costs of the new operation were covered by the budgets of the Ministry of Defence and in part by the Ministry of the Interior. Mare Nostrum also received some financial support from EU institutions, such as a one-time grant of 1.8M euros from the EU’s External Borders Fund in October 20131582European Commission, Frontex Joint Operation ‘Triton’ – Concerted efforts to manage migration in the Central Mediterranean, 07/10/2014, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_566, retrieved on 30/03/2021 [https://web.archive.org/web/20210308104233/https://ec.europa.eu/commission/presscorner/detail/en/memo_14_566] and additional payments to cover minor features of the operation, such as the provision of first aid to rescued refugees aboard Mare Nostrum vessels.1583European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean 2/2, 22/05/2014, https://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/com_swd(2014)0173(par2)_/com_swd(2014)0173(par2)_en.pdf, retrieved on 03/03/2021 [https://web.archive.org/web/20190722101613/https://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/com_swd(2014)0173(par2)_/com_swd(2014)0173(par2)_en.pdf] Measured against the operation’s estimated annual budget of over 100 million euros, however, the EU’s contributions did not amount to much. Mare Nostrum thus remained an Italian initiative, despite recurrent calls for EU assistance by the Italian government.1584Interviewee I281585Interviewee I19 In operational terms, Mare Nostrum used a variety of staff and naval assets, which were under the command of the Italian Ministry of Defense, the Guardia di Finanza, the Coast Guard, or the State Police. The Italian Navy, as one of the Forces of the Ministry of Defense, assumed overall operational contro.1586Interviewee I301587Italian Navy, We are Navy, http://www.marina.difesa.it/EN/Conosciamoci/Pagine/default.aspx, retrieved on 09/10/2020 The Chief of Staff of the Italian Navy at the time was Admiral Giuseppe De Giorgi.
Although in 2014 De Giorgi testified before the Italian Senate that the operation did not constitute a “pull factor”,1588MACCANICO, Y., et.al., “The shrinking space for solidarity with migrants and refugees: how the European Union and Member States target and criminalize defenders of the rights of people on the move,” September 2018https://www.tni.org/files/publication-downloads/web_theshrinkingspace.pdf, retrieved on 03/03/2021 [https://web.archive.org/web/20201025171811/https://www.tni.org/files/publication-downloads/web_theshrinkingspace.pdf] Mare Nostrum quickly faced fierce opponents, both inside and outside Italy. Domestically, the Italian Parliament questioned the operation’s legitimacy and funding mechanisms.1589PANEBIANCO, S., “The Mare Nostrum Operation and the Search and Rescue approach: the Italian response to address the Mediterranean migrant crisis,” 2016 EUMedEA Online Working Paper Series, https://www.researchgate.net/publication/303480756The_Mare_Nostrum_Operation_and_the_Search and Rescue_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis, retrieved on 09/10/2020 [https://web.archive.org/web/20201011234508/https://www.researchgate.net/publication/303480756_The_Mare_Nostrum_Operation_and_the_SAR_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis], p. 12. Maurizio Gasparri, a prominent member of the center-right Forza Italia party, criticized the operation as an “expensive and maniacal” taxi service for migrants and called for its immediate end. Matteo Salvini, then the leader of the Northern League party, accused Mare Nostrum of facilitating “an invasion” and called for its shutdown.1590“‘Italy must stop saving migrants’: ex-minister,” The Local, 22/04/2014, https://www.thelocal.it/20140422/italy-must-stop-saving-migrants-ex-minister/, retrieved on 12/04/2021 [https://web.archive.org/web/20201112024549/http://www.thelocal.it/20140422/italy-must-stop-saving-migrants-ex-minister]
Around the same time, Italy was represented at the EU Task Force Mediterranean, which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.1591European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean 1/2, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 2. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation;1592European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. identified EUBAM as a possible mechanism thereof;1593European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. indirectly alluded to the potential training of the Libyan Coastguard;1594European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 9. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”1595European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean 1/2, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. Yet they also make explicit reference to ensuring compliance with international human rights standards, including “the principle of non-refoulement,” as well as paying special emphasis on potential issues arising out of third country cooperation.1596European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 6, 9. The earliest communication, in October 2013, already mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,”1597European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing the suspects’ awareness to the conditions they later subjected members of the targeted group to. The strategic direction of this Task Force is reflected by the criticism Italy faced at the European level for Mare Nostrum, especially as the operation went on. Some governments complained that Italy was not systematically identifying the people it rescued, as required under Dublin Regulation rules.1598MACCANICO, Y., “’Europe must do more…’ Hasn’t it done enough? 20 years of restrictive EU immigration policy have – inevitably - led us to the current situation,” February 2016, Statewatch, https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf, retrieved on 09/10/2021 [https://web.archive.org/web/20201011235517/https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf], p. 11. In September 2014, the Italian Interior Ministry noted that “some Member States complained, with increasing insistence, for the failure of photo-signaling many migrants who, once arrived in Italy, continued their journey to the northern European countries.”1599MACCANICO, Y., “’Europe must do more…’ Hasn’t it done enough? 20 years of restrictive EU immigration policy have – inevitably - led us to the current situation,” February 2016, Statewatch, https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf, retrieved on 09/10/2021 [https://web.archive.org/web/20201011235517/https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf], p. 11.
As the pressure rose both at home and abroad, Letta's government fell, bringing into power a government led by Matteo Renzi, also from the Democratic Party, who was very close to European institutions and receptive to their requests to strengthen control at the southern border. The Italian government concluded that Mare Nostrum was politically unsustainable and began calling for a European operation in the Mediterranean instead,1600PANEBIANCO, S., “The Mare Nostrum Operation and the Search and Rescue approach: the Italian response to address the Mediterranean migrant crisis,” 2016 EUMedEA Online Working Paper Series, https://www.researchgate.net/publication/303480756The_Mare_Nostrum_Operation_and_the_Search and Rescue_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis, retrieved on 09/10/2020 [https://web.archive.org/web/20201011234508/https://www.researchgate.net/publication/303480756_The_Mare_Nostrum_Operation_and_the_SAR_approach_the_Italian_response_to_address_the_Mediterranean_migration_crisis], p. 11. 1601VARI, E., Italy-Libya Memorandum of Understanding: Italy’s International Obligations, Hastings International and Comparative Law Review, Vol. 43, Winter 2020, https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1844&context=hastings_international_comparative_law_review, retrieved on 16/07/2024 [https://web.archive.org/web/20240211021453/https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1844&context=hastings_international_comparative_law_review], p. 114. 1602Interviewee I28 1603Interviewee I15 1604Interviewee I50 Reportedly on the condition that Italy would not have to take in the rescued “migrants”.1605Interviewee I28 As Italy took over the Presidency of the Council of the EU for a six-month term in July 2014, Renzi’s government announced that it would use the presidency’s agenda-setting and steering prerogatives to push for “the development of a common European response to arrivals of mixed migratory flows on Europe’s southern shores.”1606Italian Parliamentary Assembly, The large-scale arrival of mixed migratory flows on Italian shores, 24/06/2014, https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21039&lang=en, retrieved on 09/10/2020 [https://web.archive.org/web/20200302063954/http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21039&lang=en] In speeches at the time, Renzi called for Mare Nostrum to be “inserted” into Frontex’ operations—an approach he labeled “Frontex +”—and demanded the “internationalization” of rescue operations through a “very strong investment” in Frontex.1607Italian Parliament, Resoconto stenografico dell’Assemblea Seduta n. 251 di martedì 24 giugno 2014, 24/06/2014, https://www.camera.it/leg17/410?idSeduta=0251&tipo=stenografico, retrieved on 31/03/2021 [https://web.archive.org/web/20250130024707/https://www.camera.it/leg17/410?idSeduta=0251&tipo=stenografico] 1608SHERWOOD, H., “Libya’s detention centres accused of torturing migrants and refugees,” The Guardian, 22/06/2014, https://www.theguardian.com/world/2014/jun/22/libyas-detention-centres-accused-torturing-migrants-refugees, retrieved on 31/03/2021 [https://web.archive.org/web/20250227212519/https://www.theguardian.com/world/2014/jun/22/libyas-detention-centres-accused-torturing-migrants-refugees] 1609VINCENTI, D., “Italy pushes ‘Frontex Plus’ to tackle migration crisis,” Euractiv, 7/07/2014, https://www.euractiv.com/section/justice-home-affairs/news/italy-pushes-frontex-plus-to-tackle-migration-crisis/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012000642/https://www.euractiv.com/section/justice-home-affairs/news/italy-pushes-frontex-plus-to-tackle-migration-crisis/]
Minister of the Interior Angelino Alfano, who later will be one of the proponents of JO Triton inside Renzi’s government,1610Interviewee I30 1611Interviewee I63 called for an EU takeover, too, declaring on 26 June 2014 at a meeting of G6 ministers that “Italy cannot pay the bill for instability in Libya alone and we have reiterated that the operation Mare Nostrum cannot last forever” and that the search-and-rescue operation should become a European effort.1612TGCOM24, “Immigrati Libia, Alfano: non si può escludere la presenza di terroristi,” 05/06/2014, https://www.tgcom24.mediaset.it/politica/immigrati-libia-alfano-non-si-puo-escludere-la-presenza-di-terroristi_2049318-201402a.shtml?utm_, retrieved on 31/03/2021
Other Member States unanimously refused to take over the rescue operation in its present form, especially if they had to take in the rescued migrants.1613Interviewee I28 The German government was particularly outspoken in shooting down the Italian proposal: German Interior Minister Thomas de Maiziere, who later lambasted Mare Nostrum as a “bridge to Europe,”1614German Interior Ministry, Speech by Interior Minister Dr. Thomas de Maiziere on the occasion of the first debate of the 2015 budget, 9/09/2014 https://www.bmi.bund.de/SharedDocs/reden/DE/2014/09/haushaltsrede-2015.html, retrieved on 31/03/2021 [https://web.archive.org/web/20220121030806/https://www.bmi.bund.de/SharedDocs/reden/DE/2014/09/haushaltsrede-2015.html] declared at a meeting of the EU’s Justice and Home Affairs Council in Milan on 8 and 9 July 2014 that “it cannot be the permanent task of the Italian navy to take in refugees, but the idea that Frontex, with its modest means, will take over the activities of the Italian navy seems unrealistic.”1615MAYR, J., “Wie Viel Solidarität ist Nötig?,” Tagesschau, 8/07/2014, https://www.tagesschau.de/inland/eu-fluechtlinge-100.html, retrieved on 31/03/2021 [https://web.archive.org/web/20241210024801/https://www.tagesschau.de/inland/eu-fluechtlinge-ts-100.html]
Member States at the Milan meeting also echoed the claims made by Italian far-right politicians that large-scale search-and-rescue efforts like Mare Nostrum represented a dangerous “pull factor.” According to a spokesperson for the UK government, “Ministers across Europe […] expressed concerns that search and rescue operations in the Mediterranean have acted as a pull factor for illegal migration, encouraging people to make dangerous crossings in the expectation of rescue.”1616BBC, UK opposes future migrant rescues in Mediterranean, 28 October 2014, https://www.bbc.com/news/uk-29799473, retrieved on 31/03/20211 [https://web.archive.org/web/20230206111459/https://www.bbc.com/news/uk-29799473] The UK government took the same position, later stating that "We do not support planned search-and-rescue operations in the Mediterranean. […] We believe that they create an unintended ‘pull factor’, encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more tragic and unnecessary deaths."1617TAYLOR, A. “Italy ran an operation that saved thousands of migrants from drowning in the Mediterranean. Why did it stop?,” Washington Post, 20/04/2015 https://www.washingtonpost.com/news/worldviews/wp/2015/04/20/italy-ran-an-operation-that-save-thousands-of-migrants-from-drowning-in-the-mediterranean-why-did-it-stop/, retrieved on 31/03/2021 [https://web.archive.org/web/20160203062214/https://www.washingtonpost.com/news/worldviews/wp/2015/04/20/italy-ran-an-operation-that-save-thousands-of-migrants-from-drowning-in-the-mediterranean-why-did-it-stop/]
This narrative was also promoted by Frontex: Without providing any publicly accessible sources to support its claims, Frontex stated in a later report that: “The presence of the assets of the operation Mare Nostrum, patrolling closer to the Libyan coast with the aim of preventing the loss of migrants’ lives, has been exploited by facilitation networks in Libya, who have been able to push an increasing number of migrants to depart in unseaworthy vessels, with the expectation of being rescued soon after departure.”1618MACCANICO, Y., “’Europe must do more…’ Hasn’t it done enough? 20 years of restrictive EU immigration policy have – inevitably - led us to the current situation,” February 2016, Statewatch, https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf, retrieved on 09/10/2021 [https://web.archive.org/web/20201011235517/https://www.statewatch.org/media/documents/analyses/no-284-europe-must-do-more.pdf], p. 12.
Following the meeting of interior ministers in Milan on 8 July 2014, EU Home Affairs Commissioner Cecilia Malmström announced she and Italian Minister of Interior Angelino Alfano would discuss the idea of a “scaled-down” version of Mare Nostrum, invoking budgetary restrictions on the part of Frontex.1619SCHERER, S. and POLLESCHI, I., “Italy in talks with EU to share responsibility for boat migrants,” 08/07/2014, https://www.reuters.com/article/world/italy-in-talks-with-eu-to-share-responsibility-for-boat-migrants-idUSKBN0FD1YL/, retrieved on 31/01/2021 [https://web.archive.org/web/20201012000947/https://euranetplus-inside.eu/frontex-plus-to-replace-mare-nostrum/]
On 27 August 2014, Alfano and Malmström held a joint press conference announcing a new European operation, which they dubbed “Frontex plus.” Alfano was accompanied by a delegation of the Italian Ministry of Interior, which included the then Chief of Cabinet, Luciana Lamorgese. Alfano explained that “the aim is that Frontex Plus will replace Mare Nostrum”1620WEBER, D., “Frontex Plus to replace Mare Nostrum,” Euronetplus, 29/08/2014, https://euranetplus-inside.eu/frontex-plus-to-replace-mare-nostrum/, retrieved on 02/06/2025 but he also specified that the operation Frontex Plus would not have the same mandate, as it was a military operation with the objective of border control.1621European Commission, Visit of Angelino Alfano, Italian Minister for the Interior and President in office of the Council of the EU, to Cecilia Malmstroem: extracts from the joint press conference, 27/08/2014, https://audiovisual.ec.europa.eu/en/video/I-092071, retrieved on 26/07/2024 Moreover, Alfano explained that the operation Frontex Plus would be tasked with the destruction of the boats used by migrants1622European Commission, Visit of Angelino Alfano, Italian Minister for the Interior and President in office of the Council of the EU, to Cecilia Malmstroem: extracts from the joint press conference, 27/08/2014, https://audiovisual.ec.europa.eu/en/video/I-092071, retrieved on 26/07/2024 and he underlined that Italy is counting on the Commission to coordinate the contributions of the EU member states.1623WEBER, D., “Frontex Plus to replace Mare Nostrum,” Euronetplus, 29/08/2014, https://euranetplus-inside.eu/frontex-plus-to-replace-mare-nostrum/, retrieved on 02/06/2025 Malmström, for her part, acknowledged that she and the Commission were sponsoring a mission without a SAR mandate, as she explained that “the ‘Frontex Plus’ operation will substitute, take over Mare Nostrum, even if it will not be to the same extent.”1624CARRERA, S. and DEN HERTOG, L., “Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean,” 2015, Liberty and Security in Europe, 79(3), https://www.files.ethz.ch/isn/188072/LSE_79.pdf, retrieved on 09/10/2020,[https://web.archive.org/web/20201011234920/https://www.files.ethz.ch/isn/188072/LSE_79.pdf], p. 8.
On 3 September 2014, however, Malmström walked back her earlier comments while speaking before a European Parliament committee, saying that “we cannot replace Mare Nostrum [...] The mandate of Frontex is a border guard agency. Now there will be still people coming in the Mediterranean and there will be more people coming and this is something we don’t have the solution for.”1625CARRERA, S. and DEN HERTOG, L., “Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean,” 2015, Liberty and Security in Europe, 79(3), https://www.files.ethz.ch/isn/188072/LSE_79.pdf, retrieved on 09/10/2020,[https://web.archive.org/web/20201011234920/https://www.files.ethz.ch/isn/188072/LSE_79.pdf], p. 8.
Frontex Deputy Executive Director Gil Arias-Fernandez, speaking before the same Committee on 4 September 2014, made the same point, arguing that the name “‘Frontex Plus’ is totally misleading for the public [...] while Mare Nostrum is a SAR operation, Triton (by then the new Frontex operation had been renamed Triton – OS) will be with the main focus on border controls and management, yet frequently the operations coordinated by Frontex end in SAR operations.”1626CARRERA, S. and DEN HERTOG, L., “Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean,” 2015, Liberty and Security in Europe, 79(3), https://www.files.ethz.ch/isn/188072/LSE_79.pdf, retrieved on 09/10/2020,[https://web.archive.org/web/20201011234920/https://www.files.ethz.ch/isn/188072/LSE_79.pdf], p. 8.
The Italian government was well aware of this discrepancy, and there was disagreement over how to handle it. In internal negotiations, Minister of Interior Angelino Alfano appeared to be particularly in favor of the replacement of Mare Nostrum by Operation Triton whilst the Minister of Defense Roberta Pinotti pushed in favor of retaining Mare Nostrum for various reasons, including the fact that it provided the Italian Navy with a prestigious mission.1627Interviewee I30
In the end, Alfano’s position dominated the discourse, and the Italian government, creating the public perception that Frontex was taking over the same responsibilities as those of the Italian Navy under Mare Nostrum, simply ignored the comments by Malmström and Arias that the Frontex mission could not serve as a replacement for Mare Nostrum. On 9 October 2014 Alfano announced, in a formally unilateral decision by Italy, that Mare Nostrum would end1628European Council, Justice and Home Affairs Council – Press Conference, 09/10/2014, https://video.consilium.europa.eu/event/en/21421 1629Interviewee I30 and be “replaced” by the Frontex Operation Triton with border control and surveillance as primary goals.1630FRONTEX, Joint Operation Triton (Italy), 10/10/2016, https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes, retrieved on 13/10/2020 [https://web.archive.org/web/20200807141454/https://www.frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes] 1631“Da Mare Nostrum a Triton, le differenze,” ANSAit Cronaca, 9/07/2017, https://www.ansa.it/sito/notizie/cronaca/2015/04/19/da-mare-nostrum-a-triton-le-differenze_e5692d7c-0511-411e-a819-5393560575ba.html, retrieved on 09/10/2020 [https://web.archive.org/web/20190924090744/http://www.ansa.it/sito/notizie/cronaca/2015/04/19n/da-mare-nostrum-a-triton-le-differenze_e5692d7c-0511-411e-a819-5393560575ba.html]
Stefano Sannino, Italy’s Permanent Representative in Brussels, later listed the shift to a European operation as one of the successes of the Italian Presidency of the Council.1632SANNINO. S., “Gli otto punti di forza del semestre italiano,” 13/01/2015, https://www.ispionline.it/it/pubblicazione/i-punti-di-forza-del-semestre-italiano-12000, retrieved on 09/10/2020 [https://web.archive.org/web/20220527074758/https://www.ispionline.it/it/pubblicazione/i-punti-di-forza-del-semestre-italiano-12000]
During Renzi’s tenure, therefore, Italy and the EU had recalibrated Mediterranean policy from an expansive Mare Nostrum mission focused on search-and-rescue to a small-scale operation tasked with border surveillance, although EU institutions, Italy and the other Member States were able to anticipate the lethal consequences such a reorientation and reduction would cause.
On 12 March 2015, Italy launched a new naval operation, Mare Sicuro, to patrol the Strait of Sicily and the Central Mediterranean.1633Italian Navy, Mare Sicuro, https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx, retrieved on 31/03/2021 [https://web.archive.org/web/20211022043501/https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx] The vessels’ operation ended up routinely rescuing refugees that year.1634CHARLES H. and LORENZO P., “Ebbing and Flowing: The EU’s Shifting Practices of (Non) Assistance and Bordering in a Time of Crisis,” 2016, https://www.borderline-europe.de/sites/default/files/background/nearfuturesonline_org_ebbing_and_flowing_the_eus_shifting_pr.pdf, retrieved on 31/03/2021 [https://web.archive.org/web/20160711134226/http://www.borderline-europe.de/sites/default/files/background/nearfuturesonline_org_ebbing_and_flowing_the_eus_shifting_pr.pdf] However, the operation is distinct from Mare Nostrum in several important ways. For one, its mandate is not directly related to search-and-rescue operations, but involves maritime presence, surveillance and safety activities.1635Italian Navy, Mare Sicuro, https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx, retrieved on 31/03/2021 [https://web.archive.org/web/20211022043501/https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx] Moreover, since December 2017, the mission’s mandate has also involved supporting Libyan authorities in “controlling and countering illegal immigration” and “carrying out liaison and consultancy activities for the Libyan Navy and Coast Guard.”1636Italian Navy, Mare Sicuro, https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx, retrieved on 31/03/2021 [https://web.archive.org/web/20211022043501/https://www.marina.difesa.it/cosa-facciamo/per-la-difesa-sicurezza/operazioni-in-corso/Pagine/MareSicuro.aspx] It has thus become a part of Italy’s efforts to cloak interception as rescue and to outsource the latter to the LYCG.
IITriton (2014)
The Frontex-coordinated operation Triton was launched on behest of Italy on 1 November 2014.1637Interviewee I30 1638European Commission, Frontex Joint Operation ‘Triton’ – Concerted Efforts for managing migrator flows in the Central Mediterranean, 31/10/2014, https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609, retrieved on 09/10/2020 [https://web.archive.org/web/20201012001705if_/https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609] The specificities of the operation, including its operational area and the necessary assets to be mobilized were agreed upon between Frontex and Italy, the latter acting as the host state.1639European Commission, Frontex Joint Operation ‘Triton’ – Concerted Efforts for managing migrator flows in the Central Mediterranean, 31/10/2014, https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609, retrieved on 09/10/2020 [https://web.archive.org/web/20201012001705if_/https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609] The launch of the operation, its operational plan and each Member State’s human and technical contributions to the operation were approved by the Management Board of Frontex.1640Interviewee I30 1641Interviewee I50
All assets deployed within the framework of Operation Triton operated under the command of the Italian Ministry of Interior.1642FRONTEX, Joint Operation Triton (Italy), 10/10/2016, https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes, retrieved on 13/10/2020 [https://web.archive.org/web/20200807141454/https://www.frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes] Interior Minister Alfano became the spokesperson of the Italian government on the shift from Mare Nostrum to Triton. On 31 October 2014, Alfano himself announced, at a press conference at the Palazzo Chigi, the official ending of Mare Nostrum and the launch of Triton - entirely financed with European funds available to Frontex.1643Interior Ministry, Si conclude ‘Mare Nostrum’, al via ‘Triton’, 31/10/2014, https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton, retrieved on 09/10/2024 [https://web.archive.org/web/20250316140551/https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton] During this press conference, he stressed that “for the first time” there would be an operation guarding the border of Europe and that this was made possible thanks to the “commitment of Italy”, which led Europe to implement this new operation.1644Interior Ministry, Si conclude ‘Mare Nostrum’, al via ‘Triton’, 31/10/2014, https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton, retrieved on 09/10/2024 [https://web.archive.org/web/20250316140551/https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton] Defense Minister Roberta Pinotti also intervened during the press conference of 31 October 2014 and explained that in the coming days there was to be a transition between the use of Italian and European vessels, with Italian vessels decreasing by two-thirds.1645Interior Ministry, Si conclude ‘Mare Nostrum’, al via ‘Triton’, 31/10/2014, https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton, retrieved on 09/10/2024 [https://web.archive.org/web/20250316140551/https://www.interno.gov.it/it/notizie/conclude-mare-nostrum-triton]
IIIOperation Sophia (2015)
(a) Operation Sophia – An Italian Proposal
In October 2013, in parallel to the launch of Mare Nostrum in October 2013, the Italian government began lobbying for greater EU involvement in the Mediterranean, in line with the creation of the Task Force Mediterranean. On 24 October 2013, Foreign Minister Emma Bonino and Defence Minister Mario Mauro sent a joint letter to then High Representative Catherine Ashton calling upon the EU to launch an anti-trafficking naval operation in the Mediterranean.1646NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359 In the missive, the Italian ministers suggested that “all possible options of an EU-led CSDP operation against trafficking of human beings across the Mediterranean should be explored.”1647“EU to mull Italy call for campaign against human traffickers,” EUbusiness, 13/10/2013, https://www.eubusiness.com/news-eu/italy-diplomacy.rf1, retrieved on 09/10/2020 [https://web.archive.org/web/20131117023635/http://www.eubusiness.com/news-eu/italy-diplomacy.rf1/] The ministers put forth that it should focus on the struggle against human trafficking and could be “highly effective and operative” thanks to the experience gained from the anti-pirating mission EUNAVFOR Atalanta.1648NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 200. They also emphasized that the operation should be “complementary” to the Union’s existing activities such as EU Border Assistance Mission in Libya (EUBAM).1649NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 201. Furthermore, the ministers argued that the operation would extend the Common Security and Defence Policy’s “humanitarian dimension” by “increasing civilian–military integration and cooperation with the instruments.”1650NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 201. The ministers’ request also drew on the concern of an alleged terrorist threat coming from Libya. In light of this concern, Italy strengthened its costal services and aimed at reinforcing the control of migration in the Mediterranean.1651NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 200. Bonnino and Mauro’s proposal initially failed because, at the time in 2013, other EU Member States still saw migration in the Mediterranean as a primarily national problem that Italy must face alone.1652NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 201.
The “black week of April” was part of a series of shipwrecks that took place after the termination of Mare Nostrum in 2015. It refers to two fatal shipwrecks on 12 and 18 April 2015 which led to the deaths of 1,200 refugees. As a result, the EU faced with growing criticism of the failure of FRONTEX’ Triton to include effective SAR, leaving the thousands who would have been saved by Mare Nostrum – to drown to death. These events accelerated the Commission’s 10-point action plan on migration which was being drafted at the time.1653NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 203. The plan was presented by Home Affairs Commissioner Avramopoulos, outlining immediate actions to be taken in response to the migration crisis.
Italy and the High Representative Federica Mogherini saw in the humanitarian catastrophe a “limited window of opportunity” for setting up the EU naval operation that Rome had wanted since 2013.1654NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 205. This was an ideal environment for Italy and Mogherini to push through their vision of a CSDP mission under the guise of a humanitarian response to the “tragedies” unfolding in the Mediterranean.1655NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 203.
Reportedly, Renzi alongside Malta’s PM Muscat imposed Libya-specific Conclusions on the April 2015 European Council meetings.1656LUDLOW P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press, p. 4. Renzi called once again for a CSDP operation and for support to origin and transit countries.1657LUDLOW P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press, p. 9. He clearly articulated the problematic that would dominate the next years: “If Libya’s current instability is not resolved, we shall never be able to prevent the Mediterranean from becoming a cemetery.”1658LUDLOW P., “Preliminary Evaluation 2015/3,” Eurocomment, Leuven University Press, p. 9. These Italian efforts contributed significantly to the Council Res. 2015/778 of 18 May 2015, which set out the terms for a European Border Protection and SAR mission, to become operative on 22 June 2015.
The drafting of the naval operation was directly inspired by Italy’s 2013 proposal and the experiences of EUNAVFOR Atalanta.1659NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 203. Mogherini was reportedly not involved in the elaboration of the operation.1660NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, pp. 203-205. Italy was represented in several of the EU formations involved in the design of the concrete operation plan, including the European Military Committee, the Committee for Civilian Aspects of Crisis Management, and the Political and Security Committee (attended by the Italian Permanent Representation to the EU).1661Interviewee I1 1662Interviewee I2 1663Interviewee I35 It appears that Italy was also one of the leads in the PSC discussions on Sophia.1664Interviewee I2
(a) Operation Sophia – A European effort
This was the first time that the Commission initiated an EU military operation in the context of the CSDP.1665NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 203. It involved 25 EU States (all except Denmark, Croatia, and Ireland), with Italy serving as the “framework nation” and providing the Operation Commander, Enrico Credendino.1666NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359, p. 205. The operation evolved significantly over time, growing in mandate and geographical extension.
The initial mandate, according to its founding document, Council of the European Union Res. 2015/778 of 18 May 2015, comprises four phases. Phase 1 involves the deployment of forces to build a comprehensive understanding of “migration networks”.1667COUNCIL DECISION (CFSP) 2015/778 of 18 May 2015, L 122/31 article 2(a). Phase 2A involves, in a first step, the “boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human smuggling or trafficking”1668COUNCIL DECISION (CFSP) 2015/778 of 18 May 2015, L 122/31 article 2(b)(i). in the southern Central Mediterranean, i.e. the area near Libyan territorial waters. Phase 2B, in a second step, involves conducting the same activities inside Libyan territorial waters, conditional upon either a UN Security Council resolution or “consent by the coastal State concerned” (i.e. Libya).1669COUNCIL DECISION (CFSP) 2015/778 of 18 May 2015, L 122/31 article 2(b)(ii). Libya is not explicitly mentioned anywhere in this decision but can be inferred from Sophia’s operational plans as the intended target state and the later training of the Libyan coastguards. Phase 3 extends these operational measures against vessels to inside the coastal state’s territory (i.e. Libya), once again conditional upon Security Council authorization or Libyan consent.1670COUNCIL DECISION (CFSP) 2015/778 of 18 May 2015, L 122/31 article 2(c). The initial one-year budget totaled € 11.82 million, thus exceeding the costs of Mare Nostrum.1671COUNCIL DECISION (CFSP) 2015/778 of 18 May 2015, L 122/31 article 11(c).
Phase 1 began in June 2015. In this initial phase, Operation Sophia disposed of the following assets: 7 ships (1 Italian light aircraft carrier, 1 British Destroyer, 1 German auxiliary ship, 1 British survey ship, 1 Spanish frigate, 1 German mine hunter, 1 French frigate), 4 organic helicopters (2 Italian, 1 Spanish, 1 British) and 3 air assets (Luxembourg, Spain and France).1672EEAS, Factsheet, European Union Naval Force – Mediterranean Operation Sophia, 30/09/016, https://eeas.europa.eu/archives/docs/csdp/missions-and-operations/eunavfor-med/pdf/factsheet_eunavfor_med_en.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20250316144146/https://eeas.europa.eu/archives/docs/csdp/missions-and-operations/eunavfor-med/pdf/factsheet_eunavfor_med_en.pdf], p. 2.
Beyond providing the Operation Commander, Italy also hosted the Joint Operations Headquarters in Rome.1673NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359 Italy provided logistical support by offering the use of various naval bases. Italy’s support was outlined in a Logistic Support Technical Arrangement (LS TA) that EUNAVFOR MED signed with the Italian Ministry of Defence (then headed by Roberta Pinotti) on 19 October 2015.1674Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201012003327/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf], p. 12. It included the creation of a “Forward Logistic Base” (FLB) in the Italian Naval Base of Augusta, of a “Forward Logistic Site” (FLS) in the Italian Air Base of Pantelleria and of a “Forward Operating Base” (FOB) in the Italian Air Base of Sigonella.1675Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201012003327/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf], p. 11.
(b) Operation Sophia - Italian Personnel
As of 31 May 2018, the Operations Headquarters were manned at 90% by 204 staff members of whom 139 were from the host nation (Italy) and 65 from the other 25 participating Member States.1676Operation Commander Enrico Credendino, EUNAVFOR MED Operation Sophia Six Monthly Report, Reporting Period: 1 December 2017 - 31 May 2018, n.d. [Annex 13], p. 13. The Force Headquarters were by then manned at 84% by 43 staff members. Of them, 19 were from Italy and 24 had been deployed by 14 other Member States.1677Operation Commander Enrico Credendino, EUNAVFOR MED Operation Sophia Six Monthly Report, Reporting Period: 1 December 2017 - 31 May 2018, n.d. [Annex 13], p. 13.
In a leaked report, Credendino declared that “the cooperation with the Italian authorities is critical in the successful prosecution of my mission. EUNAVFOR Med complies with the EEAS (2015) 885 guidance to follow the op TRITON Operation Plan for the disembarkation of persons rescued at sea and we have FRONTEX Liaison officers from Italy on board of many of our ships to advise on the collection of evidence and apprehension of suspected smugglers at sea.”1678Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201012003327/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf], p. 15.
(c) Operation Sophia - Humanitarian Failure
Operation Sophia broke with the humanitarian nature of Mare Nostrum, and instead solidified the EU’s border externalization strategy in the Central Mediterranean irrespective of the human cost.1679NOVÁKY, N., “The road to Sophia: Explaining the EU’s naval operation in the Mediterranean,” 2018, European View 17(2), https://journals.sagepub.com/doi/10.1177/1781685818810359 In fact, Operation Sophia effectively utilized humanitarian rhetoric to stage what in reality became a mission to militarize the border, criminalize “migrants”, and prevent them from reaching European shores. The means to this end: further decrease in SAR capacities and further increase surveillance, destruction of vessels, and coordination of the capture and forced transfer operations by Libyan proxies. The EU and Italy portrayed the prevention of passage as a humanitarian act,1680MORENO-LAX, V., “The EU Humanitarian Border and the Securitization of Human Rights: The ‘Rescue-Through-Interdiction/Rescue-Without- Protection’ Paradigm,” 2018, Journal of Common Market Studies 56(1), pp. 132-134. but they used violence for the purpose of deterrence.1681EUNAVFOR MED operation Sophia, About Us, https://www.operationsophia.eu/about-us/#story, retrieved on 28/08/2024 [https://web.archive.org/web/20240903211001/https://www.operationsophia.eu/about-us/#story] The name of the operation itself reveals this type of manipulative framing. ‘Sophia’ was the name given by a Somali woman who was rescued by a EUNAVFOR MED operation to her baby daughter she delivered on the operation vessel “FGS Prinzessin Sophia von Schleswig-Holstein.” The High Representative, Federica Mogherini subsequently initiated to rename the operation “to honour the lives of the people we are saving, the lives of people we want to protect, and to pass the message to the world that fighting the smugglers and the criminal networks is a way of protecting human life.” Yet the vessel that carried out the operation, the “FGS Prinzessin Sophia von Schleswig-Holstein”, is a 4,900 ton military vessel previously used to fight pirates on the Somali shore. Just like all other naval vessels of the operation, it was made for military purposes and is entirely unfit for SAR operations. Instead of swift maneuverability and easy accessibility, the F123-class ‘submarine hunter’ possesses a 16-cell Vertical Launch System for RIM-7 Sea Sparrow air defense missiles, two Mark 46 anti-submarine torpedoes, two fully automatic caliber 27 MLG machine guns, and a caliber 76 Compact main cannon with a range over 18km. 1682MOGHERINI, F., Speech held at the Operation’s HQ in Rome on 24 September 2015, https://www.eeas.europa.eu/node/5943_en, retrieved on 28/08/2024 [https://web.archive.org/web/20220623141528/https://www.eeas.europa.eu/node/5943_en] 1683Deutsche Bundeswehr, Die Fregatten der Brandenburg-Klasse F123, https://www.bundeswehr.de/de/ausruestung-technik-bundeswehr/seesysteme-bundeswehr/brandenburg-klasse-f123-fregatte, retrieved on 28/08/2024 [https://web.archive.org/web/20240903211129/https://www.bundeswehr.de/de/ausruestung-technik-bundeswehr/seesysteme-bundeswehr/brandenburg-klasse-f123-fregatte]
This is evidenced by the distressingly low number of people recovered. While Mare Nostrum had saved over 115,000 persons in its one-year lifespan, Operation Sophia – though facing a strong increase in crossings - rescued only 32,394 persons from 22 June 2015 until 31 October 2016, i.e., 21% of Mare Nostrum’s capacity.1684Operation Commander Enrico Credendino, EEAS(2016) 126: Sophia End of Month 6 Report, [Annex 13] From 22 June 2015 until 31 December 2015, 11,414 persons were rescued. 1685Operation Commander Enrico Credendino, EUNAVFOR MED Operation Sophia Six Monthly Report Reporting Period: 1 January 2016 – 31 October 2016 Six Monthly Reporting Period: 1 January 2016 – 31 October 2016, n.d. [Annex 13] From 1 January 2016 until 31 October 2016, 20,980 were rescued which amounts to a yearly average of 24295, i.e., 21% of Mare Nostrum’s yearly average.
On 20 June 2016, the EU decided to push Operation Sophia further southwards, to on-shore Libya, directly engaging with Libyan actors’ capture and forced transfers operations.
D2nd Policy: Libya (2015-2019)
As early as the 2000s, Italy’s migration ‘management’ heavily relied on a series of bilateral deals concluded with the regime of Libyan ruler Muammar Gaddafi. According to these agreements, Italy was supposed to provide Libya with patrol vessels, and the two countries would conduct joint patrols in international and Libyan waters.1686RONZITTI, N., “The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: New Prospects for Cooperation in the Mediterranean?,” 2009, Bulletin of Italian Politics, 1(1), https://escholarship.org/content/qt4f28h7wg/qt4f28h7wg.pdf?t=n1lew5, retrieved on 01/10/2020 In 2012, the European Court of Human Right’s landmark ruling in Hirsi found that because Libya is unsafe, Italy has breached the prohibitions on refoulement and collective expulsions.1687Hirsi Jamaa and others v. Italy, app no 27765/09 (ECHR, 23 February 2012), paras 46-158.
The previous Communication depicted how the political collapse of Gaddafi and the legal ramifications of Hirsi prevented Italy from pursuing its direct policy of refoulement.1688Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], pp. 18-19. Yet the efforts to externalize its border and migration policies to post-Gaddafi Libya resumed almost immediately after the civil war and armed conflicted erupted and continued uninterrupted until the third MoU was concluded in 2017 with one of the two governments claiming to rule Libya.
When the Libyan Government of National Accord (GNA), led by Fayez al-Sarraj, came into power in 2016, the Italian government showed its support and started talks with the GNA. The Italian government designed and implemented a complex system to externalize migration management at the EU level and bilaterally despite being aware of the unlawfulness of returning asylees to the country under international, European and EU law. In fact, the instability in the country was instrumentalized for the purpose of migration ‘control’. Under the pretense of stabilizing the war-torn country, the Italian government redoubled its bilateral efforts and launched cooperation programs as well as mobilized the EU to rebuild the LYCG’s capacities.
The operational framework created via the conclusion of the bilateral Memorandum of Understanding (MoU) between Italy and Libya (Chapter 1) for inter alia the training of the LYCG under Operation Sophia (Chapter 2), the financial framework established by Fondo Africa, the EUTF and the Missioni Internazionali (Chapter 3) – enabled Italy to execute EU’s 2nd policy by consolidating the Libyan border control capacity through inter alia aerial and maritime surveillance, training services and even management of Libyan detention centers (Chapter 4). In parallel to the establishment of a Libyan SAR zone and MRCC that would cloak the criminal search & capture operations of Libya militias as compulsory legal search & rescue (SAR) under maritime law, Italy has also obstructed the operation of SAR NGOs tasked with conducting genuine SAR of the targeted population. In order to fail or delay the search, rescue and safe disembarkation of tens of thousands of members of the targeted group, Italy criminalized the crews and detained the vessels of these NGOs, attempted to subject their operation to a so-called ‘code of conduct’ and ultimately closed its ports in a policy that was shared across the Italian political board (Chapter 5). Finally, Italy coordinated and enabled interceptions at sea by assigning operational control to Libyan vessels while maintaining effective command through its MRCC and naval presence, ensuring that rescued individuals were returned to Libya rather than brought to safety (Chapter 6).
IThe bilateral Memorandum of Understanding (MoU) between Italy and Libya
In parallel to its involvement with Libya within an EU framework, Italy expanded its bilateral engagement with the country in the pursuit of “migration management.” Since spring 2016, Italy had been undertaking various tailor-made initiatives to resume bilateral cooperation with the Libyan GNA on security related matters, including in the field of “border and migration management”. During the summer of 2016, undersecretary of the Ministry of Foreign Affairs and International Cooperation Vincenzo Amendola met several times with Libyan authorities to discuss the ways Italy could support the “stabilization” of the Libyan institutions and how to “combat human trafficking.”1689Ministero degli Affari Esteri e della Cooperazione Internazionale, Libya, Undersecretary Amendola, agreement signed in Rome important for country stability, 18 June 2016, https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/06/libia-amendola-pd-accordo-firmato.html, retrieved on 01/10/2020 [https://web.archive.org/web/20210922212036/https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/06/libia-amendola-pd-accordo-firmato.html] In June. 1690In July see Ministero degli Affari Esteri e della Cooperazione Internazionale, Visit of Undersecretary Amendola to Libya, 03 July 2016, https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/07/visita-del-sottosegretario-amendola_0.html, retrieved on 01/10/2020 [https://web.archive.org/web/20200813173612/https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/07/visita-del-sottosegretario-amendola_0.html] In July. 1691Ministero degli Affari Esteri e della Cooperazione Internazionale, Libya: Undersecretary Amendola in Tripoli for meetings with government officials, 09 August 2016, https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/08/libia-il-sottosegretario-amendola.html, retrieved on 01/10/2020 [https://web.archive.org/web/20210621102949/https://www.esteri.it/mae/it/sala_stampa/archivionotizie/comunicati/2016/08/libia-il-sottosegretario-amendola.html] In August.
In December 2016, the Renzi government fell, and a new government led by Paolo Gentiloni as President of the Council started on 12 December 2016. In January 2017, the Italian Embassy in Tripoli reopened in January 2017, appointing Giuseppe Perrone as the Ambassador.1692“Italy to reopen diplomatic mission in Libya,” DW, 10/01/2017, https://www.dw.com/en/italy-the-first-western-power-to-reopen-embassy-in-embattled-libyan-capital/a-37070680, retrieved on 09/10/2020 [https://web.archive.org/web/20220809141644/https://www.dw.com/en/italy-the-first-western-power-to-reopen-embassy-in-embattled-libyan-capital/a-37070680] More importantly, Marco Minniti was appointed Interior Minister of Italy. Prior to his appointment, Minniti was the Delegated Authority for the Security of the Republic under Letta’s and Renzi’s governments (May 2013 – December 2016)—a background that proved crucial for his later policies as Interior Minister.1693Interviewee I74 1694Interviewee I66
To Minniti, the protection of Europe’s external frontiers via the establishment of a European Coast Guard and the introduction of a European inter-operability data system were key to ensure the efficiency of the European Agenda on Security.1695Audition of Minniti, (Roma - Audizione Sottosegretario Minniti (09.11.16)) YouTube https://www.youtube.com/watch?v=nCLHy6BXKuo&ab_channel=PupiaNews In this context, creating solid relationships with third-countries, including Libya, was crucial to ensure efficient “border management” and mitigate the above-mentioned threats.1696Interviewee I15 1697Interviewee I60
Minniti applied this expertise at the Ministry of Interior, where cooperation with third-countries on “border management” matters became one of the Ministry’s strategic objectives under his leadership.1698CATERINO, G., “Blood on the EU’s hands: what happens when ‘security’ overshadows human rights,” SOAS, 28/03/2019, https://www.soas.ac.uk/blogs/study/blood-on-eus-hands-what-happens-when-security-overshadows-human-rights/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012005458/https://www.soas.ac.uk/blogs/study/blood-on-eus-hands-what-happens-when-security-overshadows-human-rights/] He presented himself as the man who would provide “solutions” to “Europe’s migration crisis”, which was by then perceived to be at its peak, by sealing the border to the South of Europe through the Memorandum of Understanding with Libya hereinafter.1699CATERINO, G., “Blood on the EU’s hands: what happens when ‘security’ overshadows human rights,” SOAS, 28/03/2019, https://www.soas.ac.uk/blogs/study/blood-on-eus-hands-what-happens-when-security-overshadows-human-rights/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012005458/https://www.soas.ac.uk/blogs/study/blood-on-eus-hands-what-happens-when-security-overshadows-human-rights/]
The first official meeting between the new Italian Ministry of Interior and Libyan authorities happened on 9 January 2017 in Tripoli.1700“Immigrat, Minniti in Libia: Primo passo per nuova cooperazione,” RaiNews, 09/01/2017, http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce, retrieved on 09/10/2020 [https://web.archive.org/web/20200306234957/http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce] Minniti had a series of talks with Presidential Council President Falez Mustafa Al Serraj, Foreign Minister M. Siyala and members of the Presidential Council, A. Maitig and A. Kajman in order to start a new phase of cooperation between the two countries, especially with reference to migration, and the supposed fight against criminal organizations that “exploited migrants”.1701“Immigrat, Minniti in Libia: Primo passo per nuova cooperazione,” RaiNews, 09/01/2017, http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce, retrieved on 09/10/2020 [https://web.archive.org/web/20200306234957/http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce] It was reported that during that meeting, Minniti managed to obtain a “draft memorandum of understanding”1702Interviewee I60 that would allow Italy to mediate more easily with the rest of Europe.
On 2 February 2017, Italy concluded its Memorandum of Understanding (MoU) with the Government of National Accord (“GNA”). The agreement was signed in Rome by the Libyan President of the Presidential Council of the GNA, Fayez Mustafa Serraj, and the Italian President of the Council of Ministers Paolo Gentiloni.1703“Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and Italian Republic,” Academic Network for Legal Studies on Immigration and Asylum in Europe, http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf, retrieved on 09/10/2020, [https://web.archive.org/web/20200902045521/http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf] article 8.
Under this agreement, the GNA agreed to take measures “to stem the illegal migrants’ fluxes” whilst Italy agreed “to provide technical and technological support to the Libyan institutions in charge of the fight against irregular immigration, and that are represented by the border guard and the coast guard.”1704“Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and Italian Republic,” Academic Network for Legal Studies on Immigration and Asylum in Europe, http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf, retrieved on 09/10/2020, [https://web.archive.org/web/20200902045521/http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf] article 1(a) & (c). The MoU further envisioned the “adaptation and financing” of detention camps (“reception centres”) with Italian and EU funds.1705“Immigrat, Minniti in Libia: Primo passo per nuova cooperazione,” RaiNews, 09/01/2017, http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce, retrieved on 09/10/2020 [https://web.archive.org/web/20200306234957/http://www.rainews.it/dl/rainews/articoli/Immigrati-Minniti-in-Libia-primo-passo-per-nuova-cooperazione-ceb31db3-caaa-4edd-8f06-e1a33a63e59f.html?refresh_ce] article 2(2).
Instead of concluding a new treaty, the bilateral agreement was presented as mere implementation of programs and objectives of the Gaddafi’s 2008 Treaty of Friendship from almost a decade earlier. Notwithstanding the agreement breached the right to asylum, which is enshrined in the Italian Constitution, as well as other binding international obligations, legally classifying it as an informal MoU enabled Italy to avoid scrutiny and authorization by Parliament.1706LIGUORI, A., Migration law and the externalization of border controls. European state responsibility, 2019, Routledge, in print, p. 12. This strategy proved successful as the Constitutional Court dismissed a challenge based on a conflict of powers between the powers of the State and the legislature arising from the failure of the Government to submit the MoU to the parliament for ratification. See: Corte Costituzionale, ECLI:IT:COST:2018:163, (163/2018), 04/07/2018, https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2018&numero=163&utm_source=chatgpt.com,retrieved on 16/06/2025 [https://web.archive.org/web/20250616163034/https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2018&numero=163&utm], p. 2.
Stripped of all humanitarian pretense, the MoU spells out the overarching objective of the envisaged policies in the Central Mediterranean: the creation of a sophisticated, multilateral system to prevent “migrants” from reaching European shores, while attempting to avoid the criminal liability arising out of the execution of these policies by outsourcing the capture, forced transfer and detention of “migrants” to non-EU entities.
As established in the First Communication, and similar to the EU organs and Member States analyzed in this communication, Italian officials had full foreknowledge of the consequences of their policymaking: subjecting tens of thousands of members of the targeted group to what the ICC Prosecutor described before the UN Security Council as alarming in its nature and scale, and characterized as alleged crimes committed against migrants transiting through Libya.1707Office of the Prosecutor, “THIRTEENTH REPORT OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT TO THE UNITED NATIONS SECURITY COUNCIL PURSUANT TO UNSCR 1970 (2011)” 08/05/2017, https://www.icc-cpi.int/sites/default/files/iccdocs/otp/otp-rep-unsc-lib-05-2017-ENG.pdf retrieved on 03/06/2024 [https://web.archive.org/web/20230608111837/https://www.icc-cpi.int/sites/default/files/iccdocs/otp/otp-rep-unsc-lib-05-2017-ENG.pdf] The attempt to avoid this liability by contracting with Libyan militias is evidenced in statements made by Commander of Operation Sophia, Enrico Credendino, in a 2017 interview:
“We will create a Libyan system capable of stopping migrants before they reach international waters, as a result it will no longer be considered a push-back because it will be the Libyans who will be rescuing the migrants and doing whatever they consider appropriate with the migrants.”1708“L’Europa non può affidare alla Libia le vite dei migrant,” Internazionale, 04/05/2017, https://www.internazionale.it/video/2017/05/04/ong-libia-migranti, retrieved on 27/05/2025 [https://web.archive.org/web/20241214080415/https://www.internazionale.it/video/2017/05/04/ong-libia-migranti] The quote starts at 3'51.
Even after the consequences of the MoU have been materialized on the ground, no measures were taken to bring a policy change. On the contrary, the Italian-Libyan MoU was renewed on 2 February 2020 for another three years, without any amendments.1709Amnesty International, Libya: Renewal of migration deal confirms Italy’s complicity in torture of migrants and refugees, 30/10/2020, https://www.amnesty.org/en/latest/news/2020/01/libya-renewal-of-migration-deal-confirms-italys-complicity-in-torture-of-migrants-and-refugees/, retrieved on 01/08/2024 [https://web.archive.org/web/20240415090816/https://www.amnesty.org/en/latest/news/2020/01/libya-renewal-of-migration-deal-confirms-italys-complicity-in-torture-of-migrants-and-refugees/]
IIThe training of the Libyan Coastguard under Operation Sophia
From 2015 to 2017, Italian representatives participated in ShadeMed conferences in which the “dire situation faced by migrants in Libyan detention centres and the abuse they suffer” as well as the fact that Libya was not a safe country to disembark migrants was repeatedly reported and discussed.1710EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/202101112//https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf] [Annex 8], p. 4. 1711EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf] , pp. 17, 22. For example, in April 2016 the attendees were aware of the abuse of ‘migrants’ in Libya.1712EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/202101112//https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf] [Annex 8], p. 4. In May 2016, the attendees were explicitly warned that European policies that envision returning “migrants” to Libya by Libyan actors would still breach international law.1713EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf] , p. 22. The involved Italian representatives include Andres Tassara, Marco Mincio and Captain Gallinelli from the Italian Coastguard, Francesco Fagnani and Lieutenant Commander Castellamare from the Italian Navy, Maria Pia Marinelli from the Italian Polizia di Stato, Paolo Unali from the Italian Ministry of Foreign Affairs, Filippo Ciaramelletti from the Guardia di Finanza.1714EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/202101112//https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf] [Annex 8], p. 4. 1715EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf] , p, 17.
Yet, from 2016, Italy began pushing for the inclusion of the training of and support in the LYCG in Sophia’s mandate. As mentioned in the First Communication,1716Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf] paras 239-243. in a secret report sent in January 2016 to the Political and Security Committee (PSC), Sophia Operation Commander Credendino (Italian Navy) pushed for a transition from operating in the high seas (phase 2A) to operating in Libyan Territorial Waters (phase 2B). He also specifically advocated to include the training of the Libyan coastguard in their mandate.1717Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201012003327/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf], pp. 3, 20.
The proposal came from Credendino as the commander of an EU military operation, but it reflected consensus among the various actors – the Italian commander of Sophia, the EU High Representative, also an Italian national, and the Italian government – that “something had to be done with the LYCG. It was logical because if we don't have the cooperation of the state in question, if we manage to cooperate with a part of the state, it could help. Everyone agreed that it was a good idea, but the question then was… how to have a grip on it and ensure we weren't training criminals.”1718Interviewee I2
This proposition was framed in terms of being an “exit strategy” to “prevent irregular migration taking place from [Libyan] shores” and to secure the deal that the EU would be allowed to operate in Libyan high seas.1719Operation Commander Enrico Credendino, EUNAVFOR MED Operation Sophia Six Monthly Report, Reporting Period: 1 December 2017 - 31 May 2018, n.d. [Annex 13], p. 3.
Italy’s and specifically Angelino Alfano’s support for the EU operation Sophia remained unchanged,1720Interviewee I15 1721Interviewee I30 and the mandate expansion – which allowed Operation Sophia to train the LYCG – was formally adopted by the Council on 20 June 2016. The details of the ‘supporting tasks’ were elaborated within the EU’s Common Security and Defence Policy structures in which Italy is represented at almost every level and plays a prominent role (see Council of the European Union Report).
On 23 August 2016, the LYCG and Sophia’s Operation Commander Enrico Credendino signed a Memorandum of Understanding.1722EUNAVFOR MED Operation Sophia, Operation Sophia: signed the agreement on Libyan Coast Guard and Navy Training, 23/08/2016, https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/, retrieved on 09/10/2020 [https://web.archive.org/web/20201007195001/https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/] Since, Italy has contributed to and even led the training programs, and Italian vessels deployed to Operation Sophia were used to train the Libyan coastguard. For example, already in December 2016, Frontex was training LYCG agents aboard an Italian vessel deployed to Sophia.1723Frontex, Frontex helps train Libyan Coast Guard, 13/12/2016, https://frontex.europa.eu/media-centre/news-release/frontex-helps-train-libyan-coast-guard-zxRCnE, retrieved on 09/10/2020 [https://web.archive.org/web/20200907093756/https://www.frontex.europa.eu/media-centre/news-release/frontex-helps-train-libyan-coast-guard-zxRCnE] As of September 2019, Italy had already contributed in part to the training of some 500 Libyan coastguards under Sophia.1724EUNAVFOR MED Operation Sophia, Operation Sophia: New training modules in Italy, 10/09/2019, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJ1rKc3czrAhXRx4UKHS6lCE4QFjABegQIARAB&url=https%3A%2F%2Fwww.operationsophia.eu%2Foperation-sophia-new-training-modules-in-italy%2F&usg=AOvVaw0JYhgj60QLIKtqDa71vJqe, retrieved on 09/10/2020 [https://web.archive.org/web/20200809054109/https://www.operationsophia.eu/operation-sophia-new-training-modules-in-italy/]
The training formats varied in number and intensity. In September 2019, for example, a group of 78 coastguards came to Italy to receive training under “Training Package 2”.1725“Italy begins training Libyan navy and coastguard,” Middle East Monitor, 19/09/2017, https://www.middleeastmonitor.com/20170919-italy-begins-training-libyan-navy-and-coastguard/, retrieved on 09/10/20 [https://web.archive.org/web/20241109233229/https://www.middleeastmonitor.com/20170919-italy-begins-training-libyan-navy-and-coastguard/] The three-month training program was, officially, to include “technical topics related to the navigation activities, International Maritime Law, Search and Rescue doctrine, International Human Rights Law, Asylum request procedure, First Aid and medical care at sea and Public Information.”1726EUNAVFOR MED Operation Sophia, Press release 004/2017 Operation Sophia: New training modules in Italy, 18/09/2017, https://www.eeas.europa.eu/sites/default/files/press_release_libyans_training_in_italy_englishversion.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20250420130335/https://www.eeas.europa.eu/sites/default/files/press_release_libyans_training_in_italy_englishversion.pdf] Using a different approach, in mid-April 2018, EUNAVFOR MED delivered a so-called ‘Service-oriented infrastructure for MARitime Traffic tracking’ (SMART) course in Italy to three trainees (2 from the Libyan Navy and 1 from the Libyan coastguard), which allowed them to gather techniques of vessel tracking.1727Council of the European Union, EUNAVFOR MED Op SOPHIA - Six Monthly Report 22 June - 31 December 2015, 28/01/2016, https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201012003327/https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf], p. 17. “The Service-oriented infrastructure for Maritime Traffic (SMART) system is a civilian maritime activities tracking tool developed by the Italian Navy. The tool’s embedded chat is used by LCG Operations Room for external communication exchange".
These operations were critical in the dispositive put in place on 30 November 2018, at the Italian Navy School in La Maddalena (Italy), where a training module for Operation Sophia was concluded, in the presence of the Italian Minister of Defense, Elisabetta Trenta, the Italian Chief of the Navy, Vice Admiral Valter Girardelli, and the Chief of the Libyan Coastguard and Port Security, Commodore Abdalh Toumia.1728EUNAVFOR MED Operation Sophia, Operation SOPHIA: a further training module for the Libyan Navy carried out in Italy,” EUNAVFOR MED Operation Sophia, 3/12/2018, https://www.operationsophia.eu/operation-sophia-a-further-training-module-for-the-libyan-navy-carried-out-in-italy/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012004228/https://www.operationsophia.eu/operation-sophia-a-further-training-module-for-the-libyan-navy-carried-out-in-italy/]
In parallel to the Defence initiatives, the Italian Guardia di Finanza (of the Ministry of Finance) and the Italian Coast Guard (of the Ministry of Infrastructure and Transport) cooperated with Operation Sophia in planning and conducting a successful training on Coast Guard Functions for the benefit of the Libyan coastguard and Port Security (LCGPS).1729European Commission, Action Document: THE EUROPEAN UNION EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA,n.d., https://trust-fund-for-africa.europa.eu/system/files/2023-03/t05-eutf-noa-ly-07.pdf, retrieved on 24/10/2024 [https://web.archive.org/web/20201006135614/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-07.pdf], pp. 12-13. The Guardia di Finanza and Italian Coast Guard also supported trainings for the Libyan coastguard and port security under the auspices of the EU Project Seahorse, the Commission-led project consisting of a series of information-sharing and police training initiatives, which had been training the Libyan coastguard and the General Administration for Coastal Security, or GACS, since 2013 (see the European Commission Report). In 2018, the Italian Government pledged to provide the Libyan coastguards with 12 vessels along with ad hoc training for their crew.1730European Commission, Action Document: THE EUROPEAN UNION EMERGENCY TRUST FUND FOR STABILITY AND ADDRESSING THE ROOT CAUSES OF IRREGULAR MIGRATION AND DISPLACED PERSONS IN AFRICA,n.d., https://trust-fund-for-africa.europa.eu/system/files/2023-03/t05-eutf-noa-ly-07.pdf, retrieved on 24/10/2024 [https://web.archive.org/web/20201006135614/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-07.pdf], p. 13.
The Libyan Navy and Coastguard’s capacity was increased as a result of the training and the concomitant and coordinated delivery of further assets by Italy. According to the European external service, this capacity enhancement enabled the LYCG to “increase its presence at sea visibly and contribute more significantly to rescue operations.”1731Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 29.
On 18 July 2018, the EU High Representative, Federica Mogherini, received a letter by the Minister of Foreign Affairs of Italy, Enzo Moavero Milanesi, requesting the immediate revision of the disembarkation procedures currently set out in Operation Sophia's planning documents and indicating that, pending that revision, Italy would no longer be in a position to accept exclusive disembarkation of persons rescued at sea by the assets of the Operation at Italian ports.1732Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 30. The extent of control Italy had over Operation Sophia was also manifested in January 2019, when the European Commissioner Dimitris Avramopoulos stated that it is up to Italy to decide whether or not to suspend Operation Sophia: “If Italy decides, it is the country in command of operation Sophia, to stop it – it is up to Italy to make that decision”.1733NIELSEN, N., “EU: Italy’s choice to end or continue Operation Sophia,” EU Observer, 24/01/2019, https://euobserver.com/migration/143997, retrieved on 09/10/2020 [https://web.archive.org/web/20200805195129/https://euobserver.com/migration/143997]
Italy’s Deputy Prime Minister Matteo Salvini in fact conditioned the subsistence of Operation Sophia on new provisions to resettle rescued people across the European Union.1734CAMPBELL, Z., “Europe’s deadly migration strategy,” Politico, 28/02/2019, https://www.politico.eu/article/europe-deadly-migration-strategy-leaked-documents/, retrieved on 09/10/2020 [https://web.archive.org/web/20200615201940/https://www.politico.eu/article/europe-deadly-migration-strategy-leaked-documents/] Yet the Ministry of Defence and the Italian Navy were keen to preserve Sophia because it was “an Italian-commanded EU operation that gives Rome prestige,” and the foreign ministry wanted to keep Sophia “on life support” to “maintain Italy’s seat at the top table – an Italian obsession amid fierce rivalry with France for influence in Libya and in the EU.”1735TAYLOR, P., “Salvini’s Sophia soapbox,” Politico, 19/04/2019, https://www.politico.eu/article/italy-matteo-salvini-sophia-soapbox/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012004821/https://www.politico.eu/article/italy-matteo-salvini-sophia-soapbox/] The lives and safety of “migrants” were, at best, a mere pawn in the internal political dynamics of the EU.
In March 2019 the mandate of Sophia was extended with a precondition imposed by the Italian Interior Minister Matteo Salvini: that the maritime operation will be limited to using only air assets and will have no naval vessels.1736BARGIGAZZI, J., “EU extends Operation Sophia for 6 months, still without ships,” Politico, 12 September 2019, https://www.politico.eu/article/eu-extends-operation-sophia-for-6-months-still-without-ships/, retrieved on 09/10/2020 [https://web.archive.org/web/20200618042634/https://www.politico.eu/article/eu-extends-operation-sophia-for-6-months-still-without-ships/] The removal of boats from a maritime operation was absurd. But it was consistent with the overall withdrawal of SAR capacities from the Central Mediterranean pursuant to EU’s 1st policy, and complementary to provision of boats and delegation of border control authorities to the LYCG, whose agents continued to be trained by Sophia under the extended mandate and reformed mission design.
In March 2020, the idea of European SAR operations was conclusively abandoned and the remnants of Sophia were replaced by Operation Irini.1737Council Decision (CFSP) 2020/472 of 31 March 220 on a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI), L 101/4, https://eur-lex.europa.eu/eli/dec/2020/472/oj/eng, retrieved on 14/06/2025 Operation Irini’s mandate makes no appeal to European responsibility in avoiding the death of asylees in the Mediterranean.1738Council Decision (CFSP) 2020/472 of 31 March 220 on a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI), L 101/4, https://eur-lex.europa.eu/eli/dec/2020/472/oj/eng, retrieved on 14/06/2025 If anything, Irini seems designed to avoid this responsibility as much as possible. The operation’s commander must submit a monthly “pull effect” report to prove that the operation is not turning into a pull factor for crossings.1739EUNAVFOR MED Operation Sophia, Operation Sophia: New training modules in Italy, 10/09/2019, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJ1rKc3czrAhXRx4UKHS6lCE4QFjABegQIARAB&url=https%3A%2F%2Fwww.operationsophia.eu%2Foperation-sophia-new-training-modules-in-italy%2F&usg=AOvVaw0JYhgj60QLIKtqDa71vJqe, retrieved on 09/10/2020 [https://web.archive.org/web/20200809054109/https://www.operationsophia.eu/operation-sophia-new-training-modules-in-italy/] Article 8.
Notwithstanding these reports evidence intimate and close monitoring of migratory movements and countless interception or rescue operations by the LYCG or NGOs respectively, and although Irini has the necessary resources to carry out render assistance, the operation commander states that Irini’s assets were “never involved in any SOLAS events and never created a ‘pull factor’ for migrants’ departures from Libya”.1740EEAS, EUNAVFOR MED Op IRINI - Pull Factor Monthly Report, February 2021 [annex 15], p. 3 (p. 6 of pdf). And indeed, Irini successfully avoided rescuing a single refugee in its entire first year.1741WALLIS, E., “Irini mission: One year, no migrant rescues,” InfoMigrants, 7/04/2021, https://www.infomigrants.net/en/post/31367/irini-mission-one-year-no-migrant-rescues, retreievd on 12/04/2021 [https://web.archive.org/web/20210407153022/https://www.infomigrants.net/en/post/31367/irini-mission-one-year-no-migrant-rescues] This has remained unchanged in the following years.
In the December 2021 ‘pull factor’ report, Operation IRINI’s Commander Claudio Graziano noted that the mere presence of rescue vessels at sea does not create a pull factor; rather, migration is driven chiefly by Libya’s security environment and weather conditions.1742EEAS, EAUNAVFOR MED Op IRINIR – Pull Factor Report, December 2021, 21/01/2022 [Annex 20], p. 8. He also acknowledged that roughly half of those requiring humanitarian aid in Libya are migrants in transit1743EEAS, EAUNAVFOR MED Op IRINIR – Pull Factor Report, December 2021, 21/01/2022 [Annex 20], p. 6. and commended the Libyan Coast Guard’s interception and return of 741 migrants,1744EEAS, EAUNAVFOR MED Op IRINIR – Pull Factor Report, December 2021, 21/01/2022 [Annex 20], p. 11. knowing these migrants were brought back to the same place where they were in need of humanitarian aid.
Instead of SAR, Irini was designed to reinforce the agency of the Libyan coastguards in assuming migration control on its behalf. The humanitarian pretense was dropped, and over time the two - at times conflicting - ‘supporting tasks’ of Operation Sophia, training the Libyan coastguards and enforcing the UNSC arms embargo,1745Human Rights Watch, EU: shifting rescue to Libya risks lives, 19/06/2017, https://www.hrw.org/news/2017/06/19/eu-shifting-rescue-libya-risks-lives, retrieved on 11/04/19 1746UNSC, ‘Final report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011)’ (5 September 2018) UN Doc S/2018/812, https://reliefweb.int/sites/reliefweb.int/files/resources/N1711623.pdf, retrieved on 11/04/2019, paras 152-155. 1747REITANO, T. and MICALLEF, M., “The anti-human smuggling business and Libya’s political end game,” 2017, Institute for Security Studies, https://issafrica.s3.amazonaws.com/site/uploads/nar2.pdf, retrieved on 11/04/2019, p. 18. had become the raison d’être of the EU’s Common Security and Defense Policy in the Mediterranean.
IIIThe financial framework established by Fondo Africa, the EUTF and the Missioni Internazionali
To support the implementation of the MoU, Italy, directly and through European funds, intensively invested in the restructuring and reinforcement of its Libyan subcontractors.
(a) Fondo Africa
With Budget Law no 232/2016, art. 1, comma 621, the Italian Parliament established for the first time a fund of 200 million euros for the fiscal year 2017, called “Africa Fund” (“Fondo Africa”).1748“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf] The Fund was made for “interventions” in favour of migration transit countries and was to be managed by the Ministry of Foreign Affairs.1749Gazzetta Ufficiale della Repubblica Italiana, LEGGE 11 dicembre 2016, n. 232. Bilancio di previsione dello Stato per l’anno finanziario 2017 e bilancio pluriennale per il triennio 2017-2019, https://www.gazzettaufficiale.it/eli/gu/2016/12/21/297/so/57/sg/pdf, retrieved on 09/10/2020, p. 77. This expenditure was again included in the 2017 and 2018 Budget Laws.1750“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf]
Fondo Africa’s declared purpose was to finance “extraordinary measures” to “promote dialogue and cooperation with key African partners on migration”.1751“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf] Libya was one these partners, together with Tunisia and Niger.1752“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf]
On 1 February 2017 the Foreign Minister Angelino Alfano signed the Decree “Fondo per l’Africa,” which outlines the guidelines for the use of the fund.1753Ministero degli Affari Esteri e della Cooperazione Internazionale, Decreto “Fondo per l’Africa, https://www.esteri.it/mae/resource/doc/2017/02/decreto_africa_0.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20240620194536/https://www.esteri.it/mae/resource/doc/2017/02/decreto_africa_0.pdf] This Decree would become part of the set of measures established by the Italian government aimed at combating “irregular immigration” and trafficking of human beings.
The Fund is managed by the Ministry of Foreign Affairs, via the DG Italians Citizens Abroad and Migration Policies. In terms of implementing bodies, the Fund can be allocated to the Italian Agency for Development Cooperation (AICS), EU public administrations (e.g. the EUTF), IOM, UNCHR and it can also be entrusted to civil society organizations.1754“Che cos’è il Fondo Africa,” Openpolis, 09/112018, https://www.openpolis.it/parole/che-cose-il-fondo-africa/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010907/https://www.openpolis.it/parole/che-cose-il-fondo-africa/]
In 2017, Prime Minister Paolo Gentiloni together with the Interior Minister Marco Minniti and the Foreign Minister Angelino Alfano, decided to allocate 2.5 million euros1755Migreurop, Is the outsourcing of the European migration policy judicially challengeable?, https://migreurop.org/IMG/pdf/legal_note_en_def.pdf, retrieved on 14/06/2025 [https://web.archive.org/web/20240816050216/http:/migreurop.org/IMG/pdf/legal_note_en_def.pdf], p. 6. of the Fondo Africa through the Ministry of Foreign Affairs Decree no 4110/47 of 2017, for “technical support by the Italian Ministry of Interior to the competent Libyan authorities to improve border and migration management,” including “combatting migrants smuggling and search and rescue activities.”1756“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf], p. 1. The Decree 4110/27 was signed on 28 August 2017 by Luigi Maria Vignali, the Director of the DG Italians Citizens Abroad and Migration Policies.
The 2,5 million euros were allocated to the Department of Public Security of the Italian Ministry of Interior and were spent entirely on supporting the operational capacities of the Libyan authorities, more precisely on: “Restoring four patrol vessels of the LYCG; Purchasing spare parts for the vessels; Towing one of the vessels from Tripoli to the Bizerte port in Tunisia; Training 33 members of the LYCG crew; Insurance and certificates.”1757“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf], p. 1.
Not only the executive, also the Italian judiciary supported EU’s 2nd policy. In 2017, for example, the Italian NGO Association for Juridical Studies on Immigration (ASGI) filed a suit against the Ministry of Foreign Affairs and International Cooperation, accusing the Ministry of misappropriation of funds and misuse of power through the Decree no 4110 in regards to Italy’s technical support of border management by Libyan authorities.1758“Africa Fund case F.A.Q.,” Association for Juridical Studies on Immigration (ASGI), https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012010502/https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf], p. 1. In 2020, the Italian Council of State rejected the case, finding that “the restoration of four patrol boats, the purchase of spare parts for boats and the training of on-board personnel…[was] in line with the purpose of cooperation with the countries affected by migratory flows and with international law.”1759“Il Consiglio di stato rigetta l’appello sull’impiego del ‘Fondo Africa’,” ASGI, 07/08/2020, https://www.asgi.it/asilo-e-protezione-internazionale/finanziamento-motovedette-libiche-fondo-africa/, retrieved on 09/10/2020 [https://web.archive.org/web/20200830170244/https://www.asgi.it/asilo-e-protezione-internazionale/finanziamento-motovedette-libiche-fondo-africa/]
(a) The projects under the EUTF program
Since 2017, Italy has received funding allocated via the EU Emergency Trust Fund for Africa (EUTF) in three projects: “Support to the Integrated Border and Migration Management in Libya First Phase”;1760EU Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250314180701/https://trust-fund-for-africa.europa.eu/our-programmes/support-integrated-border-and-migration-management-libya-first-phase_en] “Support to the Integrated Border and Migration Management in Libya Second Phase”;1761EU Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250314180701/https://trust-fund-for-africa.europa.eu/our-programmes/support-integrated-border-and-migration-management-libya-first-phase_en] “The Recovery, Stability and socio-economic development in Libya.”1762EU Emergency Trust Fund for Africa, Recovery, Stability and socio-economic development in Libya, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/recovery-stability-and-socio-economic-development-libya_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250116041031/https://trust-fund-for-africa.europa.eu/our-programmes/recovery-stability-and-socio-economic-development-libya_en]
Under the EUTF program, the project “Support to the Integrated Border and Migration Management in Libya First Phase” was adopted on 27 July 2017.1763EU Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250314180701/https://trust-fund-for-africa.europa.eu/our-programmes/support-integrated-border-and-migration-management-libya-first-phase_en] The official objective of the project was dual: “to improve the Libyan capacity to control their borders” and to “provide for lifesaving rescue at sea, in a manner fully compliant with international human rights obligations and standards.”1764URBINA, I., “The secretive Libyan prisons that keep migrants out of Europe,” The New Yorker, 06/12/2021, https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe, retrieved on 01/12/2021 [https://web.archive.org/web/20211201140850/https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe] This project, which would become crucial in the evolution of the EU and Italy’s policies, had an estimated total cost of 46.3 million euros, of which 42,223,927.28 euros came from the Trust Fund.1765Presidency of the Council of Ministers, Provisions concerning Italy’s participation in international missions, Law n. 145, 21/07/2016, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2016;145, p. 1. Italy co-financed the project with the amount of 2,231,256 euros.1766Presidency of the Council of Ministers, Provisions concerning Italy’s participation in international missions, Law n. 145, 21/07/2016, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2016;145, p. 1. The program also benefited from a contribution of the Internal Security Fund (DG HOME) worth EUR 1.8 million. The Italian Minister of the Interior acted as the implementer and co-founding partner, allocating 2.2 million to the project.1767Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 80.
The Action Fiche of this project is of crucial importance to understand the involvement of the Italian government in supporting the Libyan authorities’ assumption of the responsibility to “manage” and “contain” migration flows. Based on previous decisions and meetings such as the Valletta Action Plan (November 2015), the Joint Communication on Central Mediterranean Route, “Managing flows, Saving Lives” (25 January 2017), the MoU between Libya and Italy (2 February 2017), the Malta Declaration (3 February 2017) and the European Council of 22-23 June 2017, the Action fiche reiterated the “importance” of improving Libyan capacity to “control” their borders and conduct search and rescue operations, in a manner supposedly fully compliant with international human rights obligations and standards.1768European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee,https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20220427130055/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf], pp. 2, 14. The project encompassed four areas:
1) Strengthening of the fleets of the GACS and the LCGPS and enhancing the surveillance capacity in the coastal area in terms of patrolling, transportation and rescue “in accordance with international law[;]
2) Setting up a basic Interagency National Coordination Centre and Maritime Rescue Coordination Centre (basic NCC+MRCC) for operations at sea and along the coastal area, and Search and Rescue activity[;]
3) Assistance to the Libyan concerned Authorities with a view to enabling them to declare a Libyan Search and Rescue Region (as per assessment results). Detailed design for the setup of a full-fledged MRCC in Tripoli (or nearby), associated with proper communication facilities[;]
4) Enhancement of territory surveillance capacity of LBG (Libyan Land Border Guards) along the southern borders, by means of a pilot project focusing on the area most affected by irregular crossings and other trans-border crimes."1769European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee,https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20220427130055/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf], pp. 9-11.
The activities outlined in the Action Fiche set the basis for Italian cooperation in the following years. The European Union mission in Libya (EUBAM) was to be a member of the steering committee and work closely with the Italians in ensuring “synergy” and “coordination” of efforts between the two activities.1770European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee,https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20220427130055/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf], p. 10. One source alleged that the origin of the project was a request from the Ministry of the Interior to the EU Commission to receive funds in order to be able to comply with the commitments arising from the MoU.1771Interviewee I58 The request was granted under the reasoning that the envisioned measures “enhanced” the capacity of the Libyan Coast Guard and fell under the scope of one of the priorities of the EUTF, namely “border management”.1772Interviewee I58
The Action Fiche explicitly acknowledged the essential role played by Italian authorities in the implementation of the project. Because the EUTF only indirectly attributed funds, and it is the national authorities that is in charge of allocating them, the Commission any responsibility from the implementation of the MoU would fall upon the Italian government.1773Interviewee I58 In the course of the program, specific training to the GACS was assigned to the Department of Public Security (Dipartimento della Pubblica sicurezza) of the Central Directorate for Immigration and Border Police (Direzione centrale dell'Immigrazione e della Polizia delle frontiere) at the Italian Ministry of the Interior.1774European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee,https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20220427130055/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf], p. 16. According to the program’s Action Fiche, the Guardia di Finanza would deliver training to the Libyan Coastguard and Port Security, whilst the Italian Coast Guard, under the responsibility of the Ministry of Transport, would support the Central Directorate for Immigration Border Police with the training of the GACS and the functional restoring of Libyan national operation rooms.1775European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee,https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20220427130055/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin_9.pdf], p. 5.
The project “Support to the Integrated Border and Migration Management in Libya Second Phase,” under the EUTF program, was adopted on 13 December 2018.1776EU Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250314180701/https://trust-fund-for-africa.europa.eu/our-programmes/support-integrated-border-and-migration-management-libya-first-phase_en] The overarching objective, outlined in the Action Fiche, was supposedly to strengthen the Libyan coastguards to increase its capacity for SAR and the fight against human trafficking and the smuggling of migrants. The project, whose cost amounts to 15 million Euros, was entirely financed by the EUTF with the Public Security Department of the Italian Ministry of Interior as main implementing partner. Under this action, new SAR vessels would be supplied to the LCGPS and GACS, a mobile Maritime Rescue Coordination Centre would be set up, and the project would render the LCGPS more efficient in SAR operations. Under the first phase of the project, therefore, the focus has been on GACS, while in the second phase on the LCGPS. This dual focus supported the two Libyan institutions (GACS and LCGPS) in the development of complementary operational coordination and cooperation.1777EU Emergency Trust Fund for Africa, Support to Integrated border and migration management in Libya – First phase, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/support-integrated-border-and-migration-management-libya-first-phase_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250314180701/https://trust-fund-for-africa.europa.eu/our-programmes/support-integrated-border-and-migration-management-libya-first-phase_en]
The third project under the EUTF umbrella “Recovery, Stability and socio-economic development in Libya” was adopted on 7 March 2018. The project is as framed as supporting the improvement of the living conditions of the most vulnerable populations such as migrants, refugees, Internally Displaced Persons, returnees and host communities in specific Libyan municipalities. The project, entirely funded by the EUTF, had a total cost of EUR 50 million, and the action was implemented through indirect management with UNICEF, UNDP and Directorate General for Development Cooperation of the Ministry of Foreign Affairs and International Cooperation (MAECI/DGCS).1778EU Emergency Trust Fund for Africa, Recovery, Stability and socio-economic development in Libya, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/recovery-stability-and-socio-economic-development-libya_en, retrieved on 29/03/2021 [https://web.archive.org/web/20250116041031/https://trust-fund-for-africa.europa.eu/our-programmes/recovery-stability-and-socio-economic-development-libya_en]
As previously noted, this “humanitarian” effort should be understood as an attempt to cover the EU and Italy’s criminal activities and reposition themselves as acting to counter the consequences of their own policy to capture, forcibly transfer, detain and abuse the targeted population in Libya. As Libya’s Minister of Justice put it, these efforts have served to shift appearances and put the blame on Libya as the sole exactor of violence against “migrants”.1779URBINA, I., “The secretive Libyan prisons that keep migrants out of Europe,” The New Yorker, 06/12/2021, https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe, retrieved on 01/12/2021 [https://web.archive.org/web/20211201140850/https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe]
(b) The Missioni Internazionali
On 31 December 2016, the Law no 145 of 21 July 2016 containing the provisions concerning Italy's participation in international missions entered into force.1780Presidency of the Council of Ministers, Provisions concerning Italy’s participation in international missions, Law n. 145, 21/07/2016, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2016;145 It established the procedures for the authorization and the financing of international missions, by distinguishing the procedure for starting new missions (Article 2) from the procedures related to the extension of the ongoing authorized missions (Articles 3 and 4). These missions are approved every year by the Italian Parliament.
In 2017, the Italian government submitted to the Parliament three resolutions on the authorization and extension of international missions. One of these resolutions specifically concerned Italy’s participation in international missions in support of the Libyan coastguards.1781Italian Chamber of Deputies, Deliberazione del Consiglio dei Ministri concernente partecipazione alla missione in supporto alla Guardia costiera libica richiesta dal Consiglio presidenziale - Governo di accordo nazionale libico, 28/07/2017, https://www.camera.it/_dati/leg17/lavori/documentiparlamentari/IndiceETesti/250/002/INTERO.pdf, retrieved on 20/04/2025 [https://web.archive.org/web/20241015140218/https://documenti.camera.it/_dati/leg17/lavori/documentiparlamentari/IndiceETesti/250/002/INTERO.pdf] In this resolution, the following military operations based in Libya were approved:
o NATO Sea Guardian nel Mar Mediterraneo (ex Active Endeavour);
o EUNAVFOR MED Operation SOPHIA;
o Bilateral mission of medical support in Libya entitled “Operation Ippocrate”;
o United Nations Support Mission in Libya (UNSMIL);
o Bilateral mission of assistance to the Libyan coastguard;
o European Union Border Assistance Mission in Libya (EUBAM LIBYA)
o “Mare Sicuro”: national air and navy framework in the Mediterranean Sea, in which the bilateral support mission for the Libyan coastguard was subsequently included.1782Italian Chamber of Deputies, Deliberazione del Consiglio dei Ministri concernente partecipazione alla missione in supporto alla Guardia costiera libica richiesta dal Consiglio presidenziale - Governo di accordo nazionale libico, 28/07/2017, https://www.camera.it/_dati/leg17/lavori/documentiparlamentari/IndiceETesti/250/002/INTERO.pdf, retrieved on 20/04/2025 [https://web.archive.org/web/20241015140218/https://documenti.camera.it/_dati/leg17/lavori/documentiparlamentari/IndiceETesti/250/002/INTERO.pdf]
In 2018, the following military operations in Libya were approved on 28 November 2018:
o NATO Sea Guardian nel Mar Mediterraneo;
o EUNAVFOR MED Operation SOPHIA;
o United Nations Support Mission in Libya (UNSMIL);
o “Mare sicuro”: national air and navy framework in the Mediterranean Sea, in which the bilateral support mission for the Libyan coastguard was subsequently included;
o Bilateral assistance mission in Libya.1783Italian Chambers of Deputies, Deliberazione del Consiglio dei ministri in merito alla partecipazione dell’Italia a ulteriori missioni internazionali da avviare per il periodo dal 1o ottobre al 31 dicembre 2018, adottata il 28 novembre 2018 (Doc. XXV, n. 1), 28/11/2018, https://documenti.camera.it/leg18/resoconti/commissioni/bollettini/html/2018/12/13/0304/allegato.htm, retrieved on 20/04/2025 [https://web.archive.org/web/20211129004853/http://documenti.camera.it/leg18/resoconti/commissioni/bollettini/html/2018/12/13/0304/allegato.htm]
In 2019, the following military operations in Libya were approved:
o NATO Sea Guardian nel Mar Mediterraneo;
o EUNAVFOR MED Operation SOPHIA;
o United Nations Support Mission in Libya-UNSMIL;
o Bilateral assistance mission in Libya;
o "“Mare sicuro”: national air and navy framework in the Mediterranean Sea, in which the bilateral support mission for the Libyan coastguard was subsequently included;
o Bilateral assistance mission to support the Libyan Coastguard;
o European Union Border Assistance Mission in Libya (EUBAM LIBYA)1784Italian Chamber of Deputies, DELIBERAZIONE DEL CONSIGLIO DEI MINISTRI IN MERITO ALLA PARTECIPAZIONE DELL’ITALIA A ULTERIORI MISSIONI INTERNAZIONALI, ADOTTATA IL 23 APRILE 2019, 23/04/2019, https://www.senato.it/service/PDF/PDFServer/BGT/1109953.pdf , retrieved on 20/04/2025 [https://web.archive.org/web/20230405130814/https://www.senato.it/service/PDF/PDFServer/BGT/1109953.pdf]
Since the Memorandum of Understanding, Italy has spent over 785 million euros in these Italian and European-led military missions.1785Oxfam Italia, “Accordo Italia-Libia: 4 anni di fallimenti, abusi e torture nel segno del cinismo della politica,” 2/02/2021, https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903212324/https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/] Out of this total amount, 540 million euros have been spent on maritime operations with no SAR mandate in the Central Mediterranean.1786Oxfam Italia, “Accordo Italia-Libia: 4 anni di fallimenti, abusi e torture nel segno del cinismo della politica,” 2/02/2021, https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903212324/https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/] More than 210 million euros have been spent on projects in Libya.1787Oxfam Italia, “Accordo Italia-Libia: 4 anni di fallimenti, abusi e torture nel segno del cinismo della politica,” 2/02/2021, https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903212324/https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/]
During this time, Libya witnessed an increase in destabilization, human trafficking, and the systematization of crimes against humanity committed against “migrants”,1788Oxfam Italia, “Accordo Italia-Libia: 4 anni di fallimenti, abusi e torture nel segno del cinismo della politica,” 2/02/2021, https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903212324/https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/] betraying the humanitarian narrative perpetuated by the Italian and EU authorities.
The following table shows the details of the funds spent by Italy in missions in Libya:1789Oxfam Italia, “Accordo Italia-Libia: 4 anni di fallimenti, abusi e torture nel segno del cinismo della politica,” 2/02/2021, https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903212324/https://www.oxfamitalia.org/accordo-italia-libia-4-anniversario/]
Despite the evidence of involvement in systematic cases of abuse and violence towards “migrants” in Libya, the Italian Parliament renewed the financial and technical support to these operations year after year.
IViv) Execution of the 2nd policy by consolidating the Libyan border control capacity
The Memorandum of Understanding between Italy and Libya, training of the Libya Coast Guard, and the financial frameworks in place between Italy and Libya was the basis for other cooperation mechanisms to stop migration flows at all costs that would fuel the criminal responsibility of Italian political leaders and civil servants. Alongside training the Libyan Coast Guard through Operation Sophia, Italy provided material support and training of Libyan authorities to set up the Libyan SAR zone, it shared its surveillance data with the Libyan authorities, and Italy assisted in managing the Libyan detention centers.
(a) The material supply and the training of the Libyan personnel by the Ministry of the Interior
As per the MoU and the Action Fiche on the EUTF project “Support to Integrated border and migration management in Libya - First phase”, Italy committed to support the provision of necessary equipment for border management operations and “search and rescue operations” of the Libyan coastguards.
According to article 1 of the MoU,1790“Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and Italian Republic,” Academic Network for Legal Studies on Immigration and Asylum in Europe, http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf, retrieved on 09/10/2020, [https://web.archive.org/web/20200902045521/http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf] article 1(c). “the Italian party commits to provide technical and technologic support to the Libyan institutions in charge of the fight against illegal immigration […]”. the Italian government committed to providing technical and technological support to the Libyan institutions in charge of the fight against “irregular” immigration. In this regard, the Italian Ministry of the Interior adapted its strategic objectives to include the strengthening of migration management capacity in third-countries such as Libya, as one of the necessary actions falling within the scope of the mission Ordine Pubblico e Sicurezza (Public Order and Security).1791Ministero dell’Interno, Direttiva generale per l’attività amministrativa e per la gestione relativa all’anno 2017, https://www.interno.gov.it/sites/default/files/direttiva_ministro_anno_2017_registrata.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20211227014830/https://www.interno.gov.it/sites/default/files/direttiva_ministro_anno_2017_registrata.pdf] , p. 59.
Before 2017 and the arrival of Minniti at the Ministry of the Interior, this was not included in the strategic planning of the Ministry. The Central Director for Immigration and Border Police of the Department of Public Security was appointed as the main person responsible for the implementation of the migration management programs in third-countries. The Central Directors have been Giovanni Pinto (2013 – 2017) and Massimo Bontempi (2017 – 2021).
On 22 March 2017 a meeting between Italian and Libyan experts took place to discuss the provision of material supply to combat “irregular” migration. The minutes of this meeting have not been made public.1792FACCHINI, D., “Nuove navi italiane alla Libia per ‘ridurre i flussi,’. La strategia del Viminale non cambia,” Altraeconomia, 23/04/2020, https://altreconomia.it/nuove-navi-italiane-alla-libia/, retrieved on 09/10/2020 [https://web.archive.org/web/20250316171758/https://altreconomia.it/nuove-navi-italiane-alla-libia/] The Central Directorate for Immigration and Border Police of the Department of Public Security was made responsible for the management and launch of the calls for tenders for the supply of rescue equipment, rubber boats and vehicles and the capacity building trainings of the Libyan personnel.1793Polizia di Stato, Bandi di gara e contratti, Atti delle amministrazioni aggiudicatrici e degli enti aggiudicatori distintamente per ogni procedura D. C. Immigrazione e della Polizia delle Frontiere, https://www.poliziadistato.it/articolo/407581ae40cbbfc6787206310, retrieved 10/10/2020 [https://web.archive.org/web/20190405134050/https://www.poliziadistato.it/articolo/407581ae40cbbfc6787206310]
The first call for tenders was launched in April 2017 and was signed by the Director of the Central Directorate for Immigration and Border Police Giovanni Pinto and by the Director of the Administrative-Accounting Sector of the Office General and Legal Affairs of the Central Directorate for Immigration and Border Police Daniele Bernardo.1794Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 21 aprile 2017, 23/04/2017, https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf, retrieved on 03/08/202 [https://web.archive.org/web/20240808104810/https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf] 1795Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 18 maggio 2017, 18/05/2017, https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105013/https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf] 1796Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – comunicazione post aggiudicazione, 23/05/2017, https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105149/https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf]
In the documents signed by the Director of the Central Directorate for Immigration and Border Police of the Department of Public Security, Giovanni Pinto, it is stated that the patrol vessels had always been property of the Libyan State and had been stored in the harbor of Biserta, Tunisia, for maintenance reasons.1797Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 21 aprile 2017, 23/04/2017, https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf, retrieved on 03/08/202 [https://web.archive.org/web/20240808104810/https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf] 1798Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 18 maggio 2017, 18/05/2017, https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105013/https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf] 1799Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – comunicazione post aggiudicazione, 23/05/2017, https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105149/https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf] The documents further explain that, due to the unstable situation in Libya, the vessels could not be returned before.1800Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 21 aprile 2017, 23/04/2017, https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf, retrieved on 03/08/202 [https://web.archive.org/web/20240808104810/https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf] 1801Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 18 maggio 2017, 18/05/2017, https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105013/https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf] 1802Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – comunicazione post aggiudicazione, 23/05/2017, https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105149/https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf]
The private company Cantieri Navali Vittoria was declared the responsible contractor as the company had produced the vessels in the first place and it possessed a “peculiar information heritage.”1803Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 21 aprile 2017, 23/04/2017, https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf, retrieved on 03/08/202 [https://web.archive.org/web/20240808104810/https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf] 1804Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 18 maggio 2017, 18/05/2017, https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105013/https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf] 1805Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – comunicazione post aggiudicazione, 23/05/2017, https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105149/https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf] The Central Directorate argued that it would not have been reasonable to involve any other possible contractor.1806Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 21 aprile 2017, 23/04/2017, https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf, retrieved on 03/08/202 [https://web.archive.org/web/20240808104810/https://www.poliziadistato.it/statics/25/determina-del-21-aprile-2017.pdf] 1807Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – determina a contrarre del 18 maggio 2017, 18/05/2017, https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105013/https://www.poliziadistato.it/statics/08/determina-del-18-maggio-2017.pdf] 1808Ministero dell’ Interno, Affidamento dei servizi di rimessa in efficienza di n. 3 imbarcazioni di proprietà libica da 14 metri custodite a Biserta e da restituire allo Stato della Libia – comunicazione post aggiudicazione, 23/05/2017, https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240808105149/https://www.poliziadistato.it/statics/18/comunicazione-post-aggiudicazione-.pdf] The same logic applied to other calls for tenders that saw the Cantieri Navali Vittoria being appointed as the main contractor.1809Polizia di Stato, Rimessa in efficienza di n. 2 imbarcazioni da 35 metri e n. 1 imbarcazione da 22 metri di proprietà libica, 10/05/2018, https://www.poliziadistato.it/articolo/15175af41df132993583695306, retrieved on 09/10/2020 [https://web.archive.org/web/20201012080253/https://www.poliziadistato.it/articolo/15175af41df132993583695306] 1810Polizia di Stato, Servizio di trasporto di una imbarcazione da 28 metri, 10/05/2018, https://www.poliziadistato.it/articolo/15175af44149be401619474581, retrieved on 09/10/2020 [https://web.archive.org/web/20201012080401/https://www.poliziadistato.it/articolo/15175af44149be401619474581]
Cantieri Navali Vittoria also played an important role in facilitating the communications between the Italian and Libyan authorities. On 18 May 2017, the company hosted a meeting between the Italian and Libyan delegations regarding their cooperation on migration matters in its office in Biserta.1811Minutes of the meeting are on file with the authors. There, the delegations agreed on the timeframe of the training scheme that the Italian authorities would provide to the Libyan GACS (General Administration for Coastal Security) personnel.1812Minutes of the meeting are on file with the authors. The following officers were part of the Italian Delegation: Vittorio Pisani, Director of the Immigration Service at the Central Directorate for Immigration and Border Police, Luigi Iandoli, Director of the Third Division – International Cooperation of the Immigration Service at the Central Directorate for Immigration and Border Police, Fulvio Filocamo, Officer at the Central Directorate for Immigration and Border Police and immigration expert at the Italian Embassy in Tunis, Alessandro Mura, Chief Inspector and representative of the Centro Nautico e Sommozzatori (CNES) of the Polizia di Stato of La Spezia.1813Minutes of the meeting are on file with the authors. The Libyan delegation was composed of Col. Tarek Shanboor, Director of the GACS, Chiefs Mohamed Aid Alynayed and Emhmed Almedi Naser Aldahir, both GACS Officers.1814Minutes of the meeting are on file with the authors. Finally, the company Cantieri Navali Vittoria was represented by Alessandro Duò, from the Foreign Office, and Vincenzo Mancini, Responsible for the activities in North Africa.1815Minutes of the meeting are on file with the authors.
The trainings for the use of the equipment provided by Italian authorities and financed through European and national funds were performed at Centro Nautico e Sommozzatori (CNES) of the Polizia di Stato of La Spezia and at the Cantieri Navali Vittoria at Biserta (Tunisia).1816FACCHINI, D., Alla Deriva, (Altraeconomia, 2018)
Reportedly, no training on how to conduct search and rescue operations in a manner conform to international law and with due respect for the rescuees was provided.1817Interviewee I73
Since 2017, the Directorate for Immigration and Border Police has been managing the supply of various border patrolling equipment and has been coordinating the training programs for the Libyan coastguard and police. All communications have been signed by the Central Director and the Director of the Administrative-Accounting Sector of the Office General and Legal Affairs in chief. The details can be found in the table below.
The funds were provided within the framework of the above-mentioned Decree no 4110/47 of 2017. The materials and services provided under this program did not serve to improve and protect the situation of the migrant population in Libya, but rather were solely used to improve the coordination of EU ‘push-back by proxy’ policy through the LYCG.1835AGRESTA, D. and DE NICOLA, A., M., “Il diritto alla trasparenza nei finanziamenti volti alla gestione integrata delle frontiere: il caso della Libia,” ASGI, 18/02/2021, https://sciabacaoruka.asgi.it/il-diritto-alla-trasparenza-nei-finanziamenti-volti-alla-gestione-integrata-delle-frontiere-il-caso-della-libia/, retrieved on 09/10/2024
Any kind of outsourced search and rescue operation to the LYCG necessarily reflects a serious breach of international law obligations because the LYCG does not rescue but captures, and it does not safely disembark but forcibly returns the targeted population to a country which EU and Italian officials know is deemed unsafe under international, national and EU law. The following section outlines the services provided under these calls for tenders that were repeatedly denounced for violating “migrants”’ rights and contributing to their abuse.1836FACCHINI, D., “Gli affari lungo le frontiere. Inchiesta sugli appalti pubblici per il contrasto all’immigrazione ‘clandestina’,” Altraeconomia, 01/012019, https://altreconomia.it/frontiera-buon-affare-inchiesta/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012080538/https://altreconomia.it/frontiera-buon-affare-inchiesta/]
(a) Direct Technical Support by Italian naval assets under Mare Sicuro/Nauras
In the 2017 Memorandum of Understanding, Italy had agreed “to provide technical and technological support to the Libyan institutions in charge of the fight against irregular immigration, and that are represented by the border guard and the coastguard."1837“Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and Italian Republic,” Academic Network for Legal Studies on Immigration and Asylum in Europe, http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf, retrieved on 09/10/2020, [https://web.archive.org/web/20200902045521/http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf] article 1(c). It did so not only by helping equip the Libyan authorities, as described in the previous section, but also by using its own naval assets to support the Libyan government’s migration “control” efforts. In August 2017 the Italian parliament approved an extension for the Italian Navy’s Mare Sicuro operation, which had been ongoing since 2015. The Parliament not only extended but also expanded the operation’s mandate:1838Camera dei Deputati, Partecipazione dell’Italia alle missione nel Mediterraneo orientale, 25/01/2021, http://documenti.camera.it/leg18/dossier/testi/DI0317.htm?_1616885508530#1253606, retrieved on 03/08/2024 [https://web.archive.org/web/20240808152708/http://documenti.camera.it/leg18/dossier/testi/DI0317.htm?_1616885508530#1253606]
Under the new mandate, which became known as Operation Nauras, the Italian navy was to offer “liaison and consultancy activities for the Libyan Navy and Coast Guard” and to support “the establishment of a Maritime Operations Center in Libya for the surveillance, maritime cooperation and coordination of joint activities.”1839Camera dei Deputati, Partecipazione dell’Italia alle missione nel Mediterraneo orientale, 25/01/2021, http://documenti.camera.it/leg18/dossier/testi/DI0317.htm?_1616885508530#1253606, retrieved on 03/08/2024 [https://web.archive.org/web/20240808152708/http://documenti.camera.it/leg18/dossier/testi/DI0317.htm?_1616885508530#1253606] To that end, part of the operation’s assets was to be stationed in the port of Tripoli.
The extended operation was launched on 2 August 2017. With the consent of the Libyan government, Italy deployed navy officials as well as an Italian Navy vessel to the port of Tripoli. From there, Italian vessels helped coordinate the operations of the Libyan coastguard and acted as a relay between the latter and Italian authorities.1840MORENO-LAX, V., and LEMBERG-PEDERSEN, M., “Border-induced displacement : The ethical and legal implications of distance-creation through externalization,” 2018, Questions of International Law Journal, http://www.qil-qdi.org/border-induced-displacement-the-ethical-and-legal-implications-of-distance-creation-through-externalization/#_ftn101, retrieved on 03/08/2024 [https://web.archive.org/web/20240808153045/https://www.qil-qdi.org/border-induced-displacement-the-ethical-and-legal-implications-of-distance-creation-through-externalization/#_ftn101] This direct operational Italian involvement was crucial to ensuring the functionality of the purportedly independent Libyan coastguard: in April 2018, an Italian court determined that the coordination of rescue operations by the Libyan coastguard was “essentially entrusted to the Italian Navy, with its own naval assets and with those provided to the Libyans."1841MORENO-LAX, V., and LEMBERG-PEDERSEN, M., “Border-induced displacement : The ethical and legal implications of distance-creation through externalization,” 2018, Questions of International Law Journal, http://www.qil-qdi.org/border-induced-displacement-the-ethical-and-legal-implications-of-distance-creation-through-externalization/#_ftn101, retrieved on 03/08/2024 [https://web.archive.org/web/20240808153045/https://www.qil-qdi.org/border-induced-displacement-the-ethical-and-legal-implications-of-distance-creation-through-externalization/#_ftn101]
This Italian action, in addition to Frontex’ similar practice of directing the Libyan coastguards’ interceptions, further evidences the coordinated and systematic efforts of the EU and Italy to not only to delegate but also to facilitate and directly co-perpetrate the capture, abduction and forced transfer operations in the Central Mediterranean route.
(b) Supporting Libyan Detention Centers
Interceptions at sea by the LYCG is but one element of externalized migration control to Libya. The logic of migration containment directly implies the necessity to detain those intercepted at sea, to prevent repeated departures and deter other members of the targeted group. In Libya, where unregulated entry and exit of migrants and refugees are criminalized and punishable by indefinite imprisonment,1842Law No. 6 of 1987 Regulating Entry, Residence and Exit of Foreign Nationals article 22. According to Art. 22 of the Libyan Penal Code, a maximum sentence of three years in prison may be applied – however, in practice, due to the lack of judicial process, detention period is often indefinite. 1843OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 11. Libyan code "does not distinguish between migrants, refugees, asylum seekers, victims of trafficking, migrants in vulnerable situations, migrant children, or other migrants in need of international human rights protection. detention is part of the institutional design of migration control. The actual practice proves this link, as virtually all those intercepted by the LYCG are subsequently transferred to detention.1844SUNDERLAND, J., and SALAH, H., “No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya” Human Rights Watch, 2019 https://reliefweb.int/sites/reliefweb.int/files/resources/eu0119_web_0.pdf, p. 16. “While some of the detainees in DCIM centres were arrested in raids on smuggler camps, private homes, and in stops on the streets, the increase in interceptions at sea by the LYCG is swelling numbers at the centres and contributing to greater overcrowding and deteriorating conditions”. 1845OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya 1846OHCHR & UNSMIL, Abuse Behind Bars: Arbitrary and unlawful detention in Libya (2018), https://www.ohchr.org/sites/default/files/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf 1847Law No. 6 of 1987 Regulating Entry, Residence and Exit of Foreign Nationals article 19(b). This is in fact required by Libyan legislation, which criminalizes illegal entry, stay and exit.
The fact that detention of migrants and refugees intercepted at sea is consciously integrated in Italian efforts to externalize migration control, becomes most apparent in Italy’s direct support to Libyan detention centers. Art. 2 of the MoU explicitly obliges Italy to provide financing and training to Libyan detention centers.1848“Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and Italian Republic,” Academic Network for Legal Studies on Immigration and Asylum in Europe, http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf, retrieved on 09/10/2020, [https://web.archive.org/web/20200902045521/http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf] Given the state of Libya and its lack of governance or administration throughout the concerned time period, EU and Italian officials could not task Libya to detain over 150,000 “migrants” from 2016 to date without being aware of the conditions of these detentions. The MoU demonstrates that the deprivation of liberty was not an unintended byproduct of EU and Italian policies but central part of their design.
Conditions in the detention centers
As the first Communication details, the centers themselves have consistently been found to be “inhuman”1849OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 1. 1850OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya, p.1. and “broken beyond repair”1851OHCHR, “UN human rights chief: Suffering of migrants in Libya outrage to conscience of humanity,” 14/11/2017, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22393, retrieved on 09/10/2020 [https://web.archive.org/web/20200803152552/https://ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22393] by all UN organizations and NGOs operating on the ground. OHCHR and UNSMIL note that “[c]onditions in detention are generally inhuman: severely overcrowded, without adequate access to toilets or washing facilities, food, or clean water. In several detention centers visited by UNSMIL, migrants were observed in large numbers in a single room without even sufficient space to lie down."1852OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 1.1853OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya, p. 5. Further, they note that “[i]n a number of centres, the overcrowding and a lack of sanitation facilities has led to the spread of infectious diseases, including scabies and chickenpox. Acute diarrhea and respiratory tract infections are common and directly related to the living conditions. Infestation by lice and fleas are often observed. (…) in some centres, approximately fifty per cent of the detainees were found to be suffering from malnutrition, with ten per cent of male adult detainees suffering acute malnutrition.”1854OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 15. Many unofficial facilities (including warehouses, farms and apartments) are deemed entirely “unfit to hold people”.1855OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 15.
Detainees are subjected to, inter alia, forced labor, sexual violence, torture, and killings, to punish them or extort money from their relatives for release. The overwhelming majority of women and older teenage girls interviewed by UNSMIL reported being gang raped by smugglers or traffickers.1856OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya, p. 6. Secretary General Guterres elaborated that “[t]orture and other ill-treatment, sexual and gender-based violence, forced labour and exploitation by guards are frequently documented. Women are held without female guards and unaccompanied children are held with adults.”1857UNSC, ‘Report of the Secretary-General on the United Nations Support Mission in Libya, S/2018/140,’ (12 February 2018), https://unsmil.unmissions.org/sites/default/files/n1803952.pdf, retrieved on 23/08/2024 [https://web.archive.org/web/20240903213847/https://unsmil.unmissions.org/sites/default/files/n1803952.pdf], para 39. OHCHR and UNSMIL add that “[t]orture and ill-treatment are systematic in detention facilities across Libya […] Most commonly used methods of torture include beatings with various objects such as metal bars and water pipes, flogging on the soles of the feet, suspension in stress position, burning with cigarettes or hot rods, and the administration of electric shocks. Some detainees have been beaten to death.”1858OHCHR & UNSMIL, Abuse Behind Bars: Arbitrary and unlawful detention in Libya (2018), https://www.ohchr.org/sites/default/files/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf, p. 5. They also confirm that migrants and refugees “are systematically held captive in abusive conditions, including starvation, severe beatings, burning with hot metals, electrocution, and sexual abuses of women and girls, with the aim of extorting money from their families through a complex system of money transfers, extending to a number of countries. They are frequently sold from one criminal gang to another and required to pay ransoms multiple times before being set free […]. Countless migrants and refugees lost their lives during captivity by smugglers or traffickers after being shot, tortured to death, or simply left to die from starvation or medical neglect.”1859OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya, p. 6.
Italian support for detention centers
As previously detailed, via the Fondo Africa, a specific budget was made available for international cooperation programs that would support transit countries in “managing” migration.1860ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], pp. 9-10. The Fund was managed by the AICS office, based in Tunis. It supervised calls for proposals, and eventually selected Italian NGOs to implement projects.1861Ministry of Feoreign Affairs and International Cooperation, Decree No 113 of 22 July 2015. Regulation laying down: “Statute of the Italian Agency for Development Cooperation”. (DM 113/2015), https://www.aics.gov.it/wp-content/uploads/2023/04/AICS-STATUTE-1.pdf retrieved 29/6/2024, retrieved on 28/07/2024 [https://web.archive.org/web/20240616114030/https://www.aics.gov.it/wp-content/uploads/2023/04/AICS-STATUTE-1.pdf] article 19.
Since 2017, more than 60 million euros have been allocated to projects based in Libya. The first call for proposals was launched in December 2017, for Italian non-profit organizations to operate inside the Libyan detention centers, usually managed by the Libyan Directorate for Combatting Illegal Migration (DCIM), acting under the authority of the Minister of the Interior. The involvement of the AICS has been widely criticized given that these centers are the theatre of widespread and systematic abuse of the migrant populations.1862Amnesty International, “Aiuti alla Libia: l’Italia sta aggirando i suoi obblighi internazionali,” 23/05/2017,https://www.amnesty.it/aiuti-alla-libia-litalia-sta-aggirando-suoi-obblighi-internazionali/, retrieved on 09/10/2020 [https://web.archive.org/web/20200314183806/https://www.amnesty.it/aiuti-alla-libia-litalia-sta-aggirando-suoi-obblighi-internazionali/] The involvement of Italian NGOs and the funding provided under the Fondo Africa has been challenged by the Associazione per gli Studi Giuridici sull’Immigrazione (ASGI), arguing that such actions legitimize the existence of these centers and in fact provide structural contribution for their operation.1863ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf]
The majority of centers benefiting from the AICS projects are those where “migrants” who were abducted by the LYCG and brought back to Libya are detained. These are the centers close to Tripoli (Tarek al Sikka, Tarek al Matar, Tajoura), Khoms and the Nasr center, near Zawiya.1864ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], pp. 11, 27-28. Aware of Given the widespread torture, rape, enslavement, and murder in these centers, these funds have fueled the perpetuation of the alleged crimes.
For example, in 2017 AICS allocated 6 million euros via three calls for proposals, AID 11273 (Tarek Al Sikka, Tarek Al Matar and Tajoura); AID 11242/1 (Tajoura, Tarek al Sikka, Tarek Al Matar, Khoms, Al Sabaa, Zawya, Dar El Jabal/Zintan, Qasr bin Ghasheer) and AID 11242/2 (Tarek al Sikka, Zuwara, Sabratha).1865AICS, CSOs • calls for project proposals • emergency, https://www.aics.gov.it/home-eng/opportunities/noprofit-emergency/, 28/02/2024 [https://web.archive.org/web/20221129015654/https://www.aics.gov.it/home-eng/opportunities/noprofit-emergency/] Evidence suggests that the Nasr center was also funded by Italy. Managed by the clan of al-Bija,1866SCAVO, N, “La trattativa nascosta. Dalla Libia a Mineo, il negoziato tra l’Italia e il boss,” Avvenire, 4/10/2019,https://www.avvenire.it/attualita/pagine/dalla-libia-al-mineo-negoziato-boss-libico, retrieved on 09/10/2020 [https://web.archive.org/web/20200922182437/https://www.avvenire.it/attualita/pagine/dalla-libia-al-mineo-negoziato-boss-libico] this center hosted atrocious acts of violence, according to the Italian judiciary.1867SCAVO, N., “Migranti. Condannati a Messina tre torturatori arruolati in Libia dagli uomini di Bija,” Avvenire, 28/05/2020, https://www.avvenire.it/attualita/pagine/condannati-a-messina-tre-torturatori-arruolati-in-libia-dagli-uomini-di-bija, retrieved on 09/10/2020 [https://web.archive.org/web/20250214213729/https://www.avvenire.it/attualita/pagine/condannati-a-messina-tre-torturatori-arruolati-in-libia-dagli-uomini-di-bija]
The Ministry of Foreign Affairs and the AICS have denied access to NGOs to consult the text of the approved projects in the abovementioned centers. The refusal was justified by the need “to concretely protect the public interest inherent in relationships international and the safety of the operators of the Italian CSOs responsible for the implementation of the projects on the Libyan territory, currently crossed by an armed conflict.”1868ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], p. 15.
The initial calls for proposals themselves have also identified critical issues concerning the detention centers, including the inadequacy of the facilities and the overcrowding, the lack of medical assistance, the limited access to food, the inappropriate care provided to vulnerable individuals (e.g. children and pregnant women), mental issues and the scarce access to water and appropriate hygiene facilities.1869ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], pp. 18-29.
Notwithstanding the humanitarian situation remained unchanged, EU and Italian officials continued sending members of the targeted group to these facilities. Although the AICS’ call for proposals stated that the Italian intervention is aimed at “[…] supporting a government with difficulties providing assistance to save the lives of the most vulnerable people meeting their most urgent needs”1870ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], p. 20. – the continued renewal of policies returning “migrants” to Libya despite these conditions not changing, suggests the funded projects were not about humanitarian intervention. The call for proposals “[did] not target situations of dire necessity for the Libyan government, but rather situations consciously created by it, by extremely repressive immigration policies, absence of controls, and lack of public spendings.”1871ASGI, Profili critici delle attività delle ONG italiane nei centri di detenzione in Libia con fondi A.I.C.S., July 2020, https://www.sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf, retrieved 28/02/2021 [https://web.archive.org/web/20221210023638/http://sciabacaoruka.asgi.it/wp-content/uploads/2020/08/finale-rev.-1-Rapporto-analisi-progetti-ONG-Libia.pdf], p. 6.
The Italian Ministry of the Interior and the AICS requested Italian NGOs to operate in centers that were repeatedly reported for being places of systematic violent abuse.1872HRW, “EU/NATO: Europe’s Plan Endangers Foreigners in Libya,” 06/07/2016, https://www.hrw.org/news/2016/07/06/eu/nato-europes-plan-endangers-foreigners-libya, retrieved on 09/10/2020 [https://web.archive.org/web/20241204054520/https://www.hrw.org/news/2016/07/06/eu/nato-europes-plan-endangers-foreigners-libya] 1873OHCHR and UNSMIL, Detained and Dehumanised, Report on Human Rights Abuses against Migrants in Libya, 13/12/2016, https://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf, retrieved on 23/08/2024, p. 1. 1874OHCHR & UNSMIL, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya (2018), https://reliefweb.int/report/libya/desperate-and-dangerous-report-human-rights-situation-migrants-and-refugees-libya, p. 5. 1875RAZEK, R., “They don’t know my name,” CNN, 14/11/2017, https://edition.cnn.com/2017/11/14/africa/libya-migrant-detention-centers/index.html, retrieved on 09/10/2020 [https://web.archive.org/web/20200826113956/https://edition.cnn.com/2017/11/14/africa/libya-migrant-detention-centers/index.html] These NGO interventions allowed those camps to keep on running in spite of the systematic and widespread commission of crimes that were committed in these facilities. The first AICS call for proposal (AID 11273), was launched a day after OHCHR High Commissioner Zeid Ra’ad Al Hussein declared “[t]he detention system for migrants in Libya is broken beyond repair. […] Only alternatives to detention can save migrants’ lives and physical security, preserve their dignity and protect them from further atrocities.”1876OHCHR, “UN human rights chief: Suffering of migrants in Libya outrage to conscience of humanity,” 14/11/2017, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22393, retrieved on 09/10/2020 [https://web.archive.org/web/20200803152552/https://ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22393]
Those in charge of designing and leading the implementation of cooperation programs in the Libyan centers were aware that the support legitimated the system of abuse and mass violence against the targeted population. The Italian Ministry of Foreign Affairs and International Cooperation, its DG for Development Cooperation and the AICS agency were particularly involved in this system. More broadly, all Italian officials were aware of the commission of Crimes Against Humanity against the civilian population of “migrants”, yet they continued to train, fund and instruct the LYCG to search, capture, abduct, forcibly transfer to and detain and abuse “migrants” in Libya.
VOusting SAR NGOs and Obstructing Search and Rescue Operations
Following the termination of Mare Nostrum, the EU significantly decreased the presence of military assets in the Central Mediterranean Sea. In 2015, for example, the Italian Navy rescued 29 178 people, a significant reduction compared to the 89 952 rescued in 2014.1877Guardia Costiera Italiana, Rapporto sulle Attività Search and Rescue nel Mediterraneo Centrale connesse al Fenomeno Migratorio – anno 2016, 2016, https://www.guardiacostiera.gov.it/attivita/Documents/attivita-sar-immigrazione-2016/Attivita-SAR-immigrazione-2016-HD.pdf The increase in the number of search and rescue operations conducted by private NGOs, and coordinated by the Italian MRCC, was a direct result of this drop in institutional interventions. In 2016, for example, the year of the Second Libyan Civil War, the Italian MRCC coordinated the rescue of 178 415 people, 46 796 of which were conducted by NGO naval assets.1878Guardia Costiera Italiana, Rapporto sulle Attività Search and Rescue nel Mediterraneo Centrale connesse al Fenomeno Migratorio – anno 2016, 2016, https://www.guardiacostiera.gov.it/attivita/Documents/attivita-sar-immigrazione-2016/Attivita-SAR-immigrazione-2016-HD.pdf
According to a member of the Cabinet of the Ministry of the Interior under Minniti, the Italian Ministry of Interior thought that the work of NGOs would jeopardize the efforts to outsource the Search and ‘Rescue’ responsibilities to the Libyan authorities.1879Interviewee I66
Italy and the EU intentionally and actively prevented rescue NGOs from filling the lethal rescue gap Italy had created with the objective to prevent disembarkations of the rescues in Europe by launching a ‘persecution by prosecution’ campaign against these civil society organizations. In parallel, Italy and the EU actively orchestrated the interception and forced return of “migrants” to Libya. From 2016 to date, more than 150,000 survivors were captured in the Central Mediterranean Sea and forcibly returned to Libyan detention facilities.1880UNHCR, Libya: Activities at Disembarkation – Monthly update, December 2017, 08/01/2018, https://data.unhcr.org/en/documents/details/61535, retrieved on 03/08/2024 [https://web.archive.org/web/20240224105546/https://data.unhcr.org/en/documents/details/61535] 1881UNHCR, UNHCR Libya Update – Overview 2018, 03/01/2019, https://data.unhcr.org/en/documents/details/67474; retrieved on 03/08/2024 [https://web.archive.org/web/20240518180745/https://data.unhcr.org/en/documents/details/67474] 1882UNHCR, Libya Update, 03/01/2020, https://reliefweb.int/report/libya/unhcr-update-libya-3-january-2020; retrieved on 03/08/2024 [https://web.archive.org/web/20231014035725/https://reliefweb.int/report/libya/unhcr-update-libya-3-january-2020] 1883IOM Libya, IOM Libya Maritime Update, posted on X, 30/08/2021, https://x.com/IOM_Libya/status/1432363327456428036/photo/1, retrieved on 03/08/2024
(a) The delegitimization of the NGOs and the Code of Conduct
On 17 February 2017, Two days after the Executive Director of EU Border Agency Fabrice Leggeri openly suggested that the presence of NGO vessels represented a “pull factor” for migrant flows starting from Libya,1884Frontex, Annual Risk Analysis for 2017, 15 February 2017, https://data.europa.eu/euodp/data/storage/f/2017-02-16T145249/Annual%20Risk%20Analysis%202017.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20201012081805/https://data.europa.eu/euodp/data/storage/f/2017-02-16T145249/Annual%2520Risk%2520Analysis%25202017.pdf], p. 32. the Public Prosecutor in Catania, Carmelo Zuccaro, declared his intention to open an investigation of the existing relationship between the NGOs and traffickers organizing departure from Libya.1885VIVIANO, F. and ZINITI, A., “Contatti con scafisti, indagine sulle Ong,” la Repubblica, 17/02/2017, https://ricerca.repubblica.it/repubblica/archivio/repubblica/2017/02/17/contatti-con-scafisti-indagine-sulle-ong15.html, retrieved on 09/10/2020 [https://web.archive.org/web/20201012081917/https://ricerca.repubblica.it/repubblica/archivio/repubblica/2017/02/17/contatti-con-scafisti-indagine-sulle-ong15.html] The similarity between the statements reflects the proximity between Italy and Frontex, as manifested by the latter’s opening of a European Union Regional Task Force in Catania in 2016.1886European Commission, Nuova task force regionale dell’UE a Catania, 27/04/2016, https://ec.europa.eu/italy/node/839_it, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082025/https://ec.europa.eu/italy/node/839_it]
On 9 and 10 March 2017, Gentiloni explicitly complained about NGOs’ actions that undermined Italy’s strategy by saving migrants, alongside taking pride in 90 trained Libyan coastguards and.1887LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 9-10 March 2017, p. 6.
On 22 March 2017, the Public Prosecutor Zuccaro and the Deputy Prosecutor Andrea Bonomo were heard by the “Parliamentary Committee for monitoring the implementation of the Schengen Agreement, supervision of the activity of Europol, immigration control and supervision,” where these Prosecutors argued that the NGOs operating in the central Mediterranean Sea might be colluding with criminal networks.1888Resoconto stenografico, Comitato parlamentare di controllo sull’attuazione dell’Accordo di Schengen, di vigilanza sull’attività di Europol, di controllo e vigilanza in materia di immigrazione, Seduta n. 41 di Mercoledì 22 marzo 2017, 22/03/2017, https://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c30_confini&anno=2017&mese=03&giorno=22&idCommissione=30&numero=0041&file=indice_stenografico, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082058/https://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c30_confini&anno=2017&mese=03&giorno=22&idCommissione=30&numero=0041&file=indice_stenografico] Bonomo suggested that NGO vessels, due to their “powerful headlights … which can be seen from miles away,” contributed to smuggling networks by signaling a reliable rescue point thereby incentivizing departures.1889Resoconto stenografico, Comitato parlamentare di controllo sull’attuazione dell’Accordo di Schengen, di vigilanza sull’attività di Europol, di controllo e vigilanza in materia di immigrazione, Seduta n. 41 di Mercoledì 22 marzo 2017, 22/03/2017, https://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c30_confini&anno=2017&mese=03&giorno=22&idCommissione=30&numero=0041&file=indice_stenografico, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082058/https://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c30_confini&anno=2017&mese=03&giorno=22&idCommissione=30&numero=0041&file=indice_stenografico], p. 17.
On 23 March 2017, the Standing Committee IV of the Senate agreed on conducting a fact-finding investigation on the contribution of the Italian military to the control of migration flows in the Mediterranean and the impact of the activities of NGOs. In the context of this investigation, several NGOs representatives were questioned, as well as military representatives, Enrico Credendino, and Fabrice Leggeri.1890Senato della Repubblica, Indagine conoscitiva sul contributo dei militari italiani al controllo dei flussi migratori nel Mediterraneo e l’impatto delle attività delle organizzazioni non governative, 2017, http://www.senato.it/leg/17/BGT/Schede/ProcANL/ProcANLscheda37920.htm, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082330/http://www.senato.it/leg/17/BGT/Schede/ProcANL/ProcANLscheda37920.htm]
The Standing Committee IV of the Senate concluded that there was no evidence of collusion between the NGOs and the smugglers and reported that NGOs did not have any other intent than to provide humanitarian assistance, considering the lack of institutional intervention in terms of distress at sea.1891Senato della Repubblica, Documento approvato dalla 4a Commissione permanente a conclusione dell’indagine conoscitiva sul contributo dei militari italiani al controllo dei flussi migratori nel mediterraneo e l’impatto delle attività delle organizzazioni non governative, 16/05/2017, http://www.senato.it/service/PDF/PDFServer/BGT/1023441.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20190702103411/http://www.senato.it/service/PDF/PDFServer/BGT/1023441.pdf] However, the report established that “the accusations have affected the general climate of mistrust in Italian society toward civil society NGOs and it has further facilitated the imposition of the governmental Code of Conduct on NGOs saving lives at sea.”1892VOSYLIUTE, L., and CONTE, C., “Crackdown on NGOs and volunteers helping refugees and other migrants,” 2019, Research Social Platform on Migration and Asylum, https://www.migpolgroup.com/wp-content/uploads/2019/06/Final-Synthetic-Report-Crackdown-on-NGOs-and-volunteers-helping-refugees-and-other-migrants_1.pdf, retrieved on 28/02/2024 [https://web.archive.org/web/20250224001730/https://www.migpolgroup.com/wp-content/uploads/2019/06/Final-Synthetic-Report-Crackdown-on-NGOs-and-volunteers-helping-refugees-and-other-migrants_1.pdf], p. 7. The Standing Committee IV concluded by calling for the establishment of a Libyan Search and Rescue area, where Libyan authorities could perform rescue operations.1893Senato della Repubblica, Documento approvato dalla 4a Commissione permanente a conclusione dell’indagine conoscitiva sul contributo dei militari italiani al controllo dei flussi migratori nel mediterraneo e l’impatto delle attività delle organizzazioni non governative, 16/05/2017, http://www.senato.it/service/PDF/PDFServer/BGT/1023441.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20190702103411/http://www.senato.it/service/PDF/PDFServer/BGT/1023441.pdf], pp. 15-16.
The Italian Ministry of the Interior joined the attack on SAR NGOs shortly after, arguing that the work of NGOs was supposedly “undermining” the effective capacity of intervention of Libyan authorities, with which the Italian government was cooperating.1894Interviewee I66 In light of this consideration, the Cabinet of the Interior Ministry, led by Mario Morcone, started drafting a Code of Conduct for NGOs conducting search and rescue operations in the Mediterranean.1895Amnesty International, Libya’s Dark Web of Collusion, 2017, https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082610/https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF], p. 48. The Code of Conduct had been desired by Interior Minister Minniti and would heavily influence NGO activities operating in the Mediterranean.1896ELIA, C., “The NGO’s as a Pull Factor for Migrations,” Snapshots from the Borders, 27/11/2019, http://www.snapshotsfromtheborders.eu/the-ngos-as-a-pull-factor-for-migrations/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012083053/http://www.snapshotsfromtheborders.eu/the-ngos-as-a-pull-factor-for-migrations/] 1897TOMASETTA, L., “Il codice di condotta per le Ong voluto da Minniti ha fallito?,” TPI.it, 19/01/2018, https://www.tpi.it/news/fallimento-codice-condotta-ong-minniti-2018011984296/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012083227/https://www.tpi.it/news/fallimento-codice-condotta-ong-minniti-2018011984296/] The Head of Cabinet Mario Morcone is said to have led the consultation with NGOs and the design of the Code itself.1898Interviewee I66
The EU and other Member States also welcomed the Code of Conduct. At a European Council meeting of June 2017, Gentiloni reiterated his attack on NGOs, who were “aiding and abetting the smugglers.”1899LUDLOW, P., “European Council Briefing Note 2017/5” Eurocomment, Leuven University Press, May 2017, pp. 23-24.
On 25 July 2017, a first meeting with NGOs took place. The session was chaired by the Head of Cabinet of the Interior Minister, Mario Morcone, and attended by representatives of the Ministry of the Interior, the Ministry of Foreign Affairs, the Ministry of Infrastructure and Transport, the General command of the Guardia di Finanza, and the General Command of the Port Authorities. The Interior Ministry’s stated that “in a climate of mutual collaboration, the points set out in the Code of Conduct were illustrated.”1900Italian Ministry of the Interior, Presentate alle Ong le regole previste per il salvataggi in mare dei migrant, 25/07/2017, https://www.interno.gov.it/it/sala-stampa/comunicati-stampa/presentate-ong-regole-previste-i-salvataggi-mare-dei-migranti, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082857/https://www.interno.gov.it/it/stampa-e-comunicazione/comunicati-stampa/comunicati-stampa-raccolta-anni-precedenti/presentate-ong-regole-previste-i-salvataggi-mare-dei-migranti]
On 28 July 2017, a second meeting with NGOs was held by the same State officials. The Ministry described the statal attempt to threaten and hinder free association and navigation as constructive: “In a climate of collaboration and constructive confrontation, important and significant steps forward have been made, also incorporating some contributions of clarification that the NGOs have requested, aimed at improving the proposed text.”1901Italian Ministry of the Interior, Confronto construttivo con le Ong. La firma del Codice è prevista per lunedì, 28/07/2017, https://www.interno.gov.it/it/sala-stampa/comunicati-stampa/confronto-costruttivo-ong-firma-codice-e-prevista-lunedi, retrieved on 09/10/2020 [https://web.archive.org/web/20170820235409/http://www.interno.gov.it/it/sala-stampa/comunicati-stampa/confronto-costruttivo-ong-firma-codice-e-prevista-lunedi]
On 31 July 2017 some NGOs signed the Code of Conduct (MOAS, Save the Children), others sent a communication announcing their intention to sign it (Proactiva Open Arms) and others refused to sign it (Sea Watch, Sea Eye, SOS Méditerranée, Jugend Rettet).1902Italian Ministry of the Interior, Codice di Condotta per le Ong, offi terzo incontro al Viminale, 31/07/2017, https://www.interno.gov.it/it/sala-stampa/comunicati-stampa/codice-condotta-ong-oggi-terzo-incontro-viminale, retrieved on 09/10/2020
It was later discovered that the Italian government clarified that those who refused to sign the agreement were to be “placed outside of the organized system for rescue at sea,” a fact that could impact “the safety of the vessels themselves.”1903Italian Ministry of the Interior, Codice di Condotta per le Ong, offi terzo incontro al Viminale, 31/07/2017, https://www.interno.gov.it/it/sala-stampa/comunicati-stampa/codice-condotta-ong-oggi-terzo-incontro-viminale, retrieved on 09/10/2020
The Code restricted search and rescue activities in Libyan waters and limited the possibility of transferring rescued people from one rescue vessel to another. In addition, NGOs were to commit to “receive on board (…) judicial police officers for information and evidence gathering with a view to conducting investigations related to migrant smuggling and/or trafficking in human beings, without prejudice of the ongoing humanitarian activity.”1904Italian Ministry of Interior, Codice di condotta per le ONG impegnate nel salvataggio dei migranti in mare, 07/07/2017, https://www.interno.gov.it/sites/default/files/codice_condotta_ong.pdf, retrieved on 16/04/2021, p. 3.
Given its illegality, the Code of Conduct was not legally binding.1905Amnesty International, Libya’s Dark Web of Collusion, 2017, https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082610/https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF], p. 48-49. Yet the Italian government had warned in the Code itself, that a “failure to abide by this Code of Conduct or to comply with the commitments set out therein may result in the adoption by the Italian Authorities of measures addressed to the relevant vessels.”1906Italian Ministry of Interior, Codice di condotta per le ONG impegnate nel salvataggio dei migranti in mare, 07/07/2017, https://www.interno.gov.it/sites/default/files/codice_condotta_ong.pdf, retrieved on 16/04/2021, pp. 4-5.
Non-signatories of the Code of Conduct were threatened with being prohibited from disembarking migrants in Italy.1907CUSUMANO, E., and Villa, M., “Sea Rescue NGOs: a Pull Factor of Irregular Migration?,” 2019, Robert Schuman Center, 2019/22, https://immigrazione.it/docs/2019/EUI_PullFactorIrregolarMigration.pdf, p. 3. In fact, NGOs who refused to sign the code of conduct, were targeted with prosecution. The Code of Conduct gave impetus to Public Prosecutors to proceed with the seizure of NGO vessels that would not comply with it and open criminal investigations for allegedly “aiding and abetting” “irregular” migration.
On 2 August 2017, for instance, the Trapani tribunal’s public prosecutor, Ambrogio Carotsio, “ordered the seizure of the rescue boat Iuventa, operated by NGO Jugend Rettet” which had refused to sign the Code of conduct, “as part of an ongoing investigation into the crime of aiding and abetting irregular immigration”.1908Amnesty International, Libya’s Dark Web of Collusion, 2017, https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF, retrieved on 09/10/2020 [https://web.archive.org/web/20201012082610/https://www.amnesty.org/download/Documents/MDE1975612017ENGLISH.PDF], p. 48. From the investigations, it appeared that the ship had remained in Libyan waters and dealt with the transshipment of migrants on other ships in violation of the Code of Conduct.1909Italian Ministry of the Interior, “Lampedusa: sequestrate la motonave luventa della ong Jugend Rettet,” 08/07/2017, https://www.interno.gov.it/it/notizie/lampedusa-sequestrata-motonave-iuventa-ong-jugend-rettet, retrieved on 09/10/2020 [https://web.archive.org/web/20201012083719/https://www.interno.gov.it/it/notizie/lampedusa-sequestrata-motonave-iuventa-ong-jugend-rettet] The measure was signed by the investigating magistrate of the Trapani court Emanuele Certosimo, at the request of the deputy prosecutor Andrea Tarondo.1910Italian Ministry of the Interior, “Lampedusa: sequestrate la motonave luventa della ong Jugend Rettet,” 08/07/2017, https://www.interno.gov.it/it/notizie/lampedusa-sequestrata-motonave-iuventa-ong-jugend-rettet, retrieved on 09/10/2020 [https://web.archive.org/web/20201012083719/https://www.interno.gov.it/it/notizie/lampedusa-sequestrata-motonave-iuventa-ong-jugend-rettet] For the following seven years, legal proceedings kept the Iuventa docked in the port of Trapani and some of its crew members were subjected to years-long and costly criminal investigations, which were eventually dropped only in 2024.1911Legal Tribunal Online, Strafverfahren gegen Iuventa-Crew eingestellt, 19/04/2024, https://www.lto.de/recht/nachrichten/n/italien-strafverfahren-gegen-iuventa-crew-eingestellt-seenotrettung-mittelmeer, retrieved on 03/08/2024 [https://web.archive.org/web/20240419140718/https://www.lto.de/recht/nachrichten/n/italien-strafverfahren-gegen-iuventa-crew-eingestellt-seenotrettung-mittelmeer/]
Since 2017, Italian authorities have seized NGO vessels, launched legal proceedings against crew members for “aiding illegal migration”, denied crew to board their vessels, denied the vessels’ disembarkation, and ordered substantial fines.1912European Union Agency for Fundamental Rights (FRA), “Table 2: Legal proceedings by EU Member States against private entities involved in Search and Rescue operations in the Mediterranean Sea (15 December 2020)”, 15/12/2020, https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20210501200405/https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf] This process intimidated and complicated the work of rescue NGOs, “leaving fewer boats available to save people from drowning.”1913Amnesty International “Solidarity on Trial, Europe People helping refugees and migrants risk jail as authorities misuse anti smuggling laws,” 3/03/2020 https://www.amnesty.org/en/latest/campaigns/2020/03/free-to-help//, retrieved on 21/04/2025 [https://web.archive.org/web/20250312002733/https://www.amnesty.org/en/latest/campaigns/2020/03/free-to-help/]
(b) The establishment of the Libyan Search and Rescue zone and MRCC
Until 2018, Libya had neither declared search and rescue region (SRR) nor recognized MRCC. The Italian MRCC, managed by the Italian Coast Guard, had de facto taken over responsibilities in that area.1914EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/202101112//https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf] [Annex 8], p. 6. According to the perspective of the Italian governmental at the time, the Italian authorities were the ones who were in the best position to establish a functional coastguard in Libya.1915Interviewee I74
This expertise and knowledge was thought to belong to the Italian Ministry of Interior.1916Interviewee I74 Italy was nonetheless trying to develop a European framework in favor of the support for a Libyan MRCC and Search and Rescue zone.1917Interviewee I74 In January 2017, the Commission affirmed the EU’s financial support to Italy’s efforts in establishing such a Libyan MRCC.1918European Commission, Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route Managing flows, saving lives, 25/01/2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN, retrieved on 30/09/2020 [https://web.archive.org/web/20200930093651/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=JOIN%3A2017%3A4%3AFIN] These efforts were undertaken despite the serious doubts raised about the competency of the Libyan authorities to conduct SAR (cf. Setting up the MRCC Libya and the establishment of a Libyan SAR zone).
In June 2017, following up with the above-mentioned programs (cfr. Chapter iv “The financial support: the Fondo Africa, the EUTF and the Missioni Internazionali”), DG Home and the Italian Coast Guard signed a grant agreement for an action entitled “Assessment of the Libyan Coast Guard legal framework and capability in terms of Search and Rescue Services.”1919Guardia Costiera, Progetto 0051 - Progetti finanziati dalla Commissione Europea Internal Security Fund, https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx, retrieved on 30/09/2020 [https://web.archive.org/web/20210512101512/https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx]
The Grant was signed by Simon Mordue on behalf of DG Home and by General Commander Vincenzo Melone, on behalf of the Italian Coast Guard.1920DG HOME, Grant Agreement for an action with one beneficiary. Agreement Number – HOME/2017/ISFB/AG/EMAS/0051, https://www.guardiacostiera.gov.it/stampa/Documents/progetti-finanziati/Grant%20Agreement%200051%20signed.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20191209045737/https://www.guardiacostiera.gov.it/stampa/Documents/progetti-finanziati/Grant%20Agreement%200051%20signed.pdf] The project, at the time titled “Aurora”, was given one year for development (to be terminated in June 2018) and received 1,8 million euros from the Internal Security Fund. It was coordinated by Nicola Carlone, Chief of the 3rd Department of the General Command of the Italian Coast Guard - Plans and Operations.1921DG HOME, Grant Agreement for an action with one beneficiary. Agreement Number – HOME/2017/ISFB/AG/EMAS/0051, https://www.guardiacostiera.gov.it/stampa/Documents/progetti-finanziati/Grant%20Agreement%200051%20signed.pdf, retrieved on 09/10/2020 [https://web.archive.org/web/20191209045737/https://www.guardiacostiera.gov.it/stampa/Documents/progetti-finanziati/Grant%20Agreement%200051%20signed.pdf], p. 71. Italy declared that “[i]n accordance with the outcomes of the assessment document, a second phase (implementing) should be carried out to establish a fully-fledged MRCC in Libya (communication network included) and to deliver training to Libyan personnel, in accordance with the relevant international laws.”1922IMO, Further Development of the Provision of Global Maritime SAR Services, NCSR 5/INF.17, 15/12/2017, https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20220316223612/https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf], p. 3.
On 10 July 2017, the President of Libyan Ports and Maritime Transport Authority Omar Al-Gawashi sent a letter to the Secretary General of the International Maritime Organization (IMO) requesting the recognition of the Libyan search and rescue zone, but later the request was withdrawn.1923FACCHINI, D., “Soccorsi ai migranti, in arrivo una (pessima) svolta,” Altraeconomia, 21/06/2018, https://altreconomia.it/sar-libia-svolta/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012084851/https://altreconomia.it/Search%2520and%2520Rescue-libia-svolta/] The request was forwarded to the IMO again on 14 December 2017.1924European Parliament, Answer given by Mr. Avramopoulos on behalf of the European Commission, 4/09/2018, https://www.europarl.europa.eu/doceo/document/P-8-2018-003665-ASW_EN.html, retrieved on 09/10/2020 [https://web.archive.org/web/20181102010758/http://www.europarl.europa.eu/doceo/document/P-8-2018-003665-ASW_EN.html]
The following day, on 15 December 2017, Italy submitted a report to the International Maritime Organization Meeting presenting the project for a Libyan MRCC. The project was to be handled by Libyan counterparts (the Libyan coastguard, Ministry of Transport, Ministry of Foreign Affairs and Navy), European stakeholders (EUDEL Libya, EUBAM Libya, Frontex, EMSA, ENAVFOR MED Operation Sophia), relevant UN stakeholders (UNSMIL, UNHCR, UNODC, IOM, WFP) and Italian ministries (the Ministry of Foreign Affairs, the Ministry of Transport, the Ministry of the Interior, the Ministry of Defence).1925IMO, Further Development of the Provision of Global Maritime SAR Services, NCSR 5/INF.17, 15/12/2017, https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20220316223612/https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf], pp. 2-3. In the report, the authors described future “technical meetings, on a monthly basis, with the Libyan counterparts, as well as a technical meeting that also involves other countries (Egypt, Tunisia, Malta and Greece), to be held in Rome in February 2018, with the aim of facilitating search and rescue agreements.”1926IMO, Further Development of the Provision of Global Maritime SAR Services, NCSR 5/INF.17, 15/12/2017, https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20220316223612/https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf], p. 3.
It was also stated that the project team was to “support and assist the relevant Libyan authorities in identifying and declaring their Search and Rescue Region, in cooperation and coordination with a number of Libya's neighbouring countries (namely Tunisia, Egypt, Greece and Malta); and draw up a detailed project based on the assessment, aimed at establishing a fully operational Maritime Rescue Coordination Centre, providing assistance to the relevant Libyan authorities for the international recognition of their Search and Rescue Region.”1927IMO, Further Development of the Provision of Global Maritime SAR Services, NCSR 5/INF.17, 15/12/2017, https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20220316223612/https://cdn.theoutlawocean.com/media/pdf/further-development-of-the-provision-of-global-maritime-sar-services-december-2017-italian-submission-to-imo.pdf], p. 3.
The “LMRCC Project Team”, established under the Grant Agreement, met multiple times in 2017 and in the first half of 2018.1928Guardia Costiera, 4th technical meeting with the Libyan Delegation held in Genoa, https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx, retrieved on 09/05/2018 [https://web.archive.org/web/20210612145036/https://www.guardiacostiera.gov.it/stampa/Pages/4th-technical-meeting-whit-here-libyan-delegation-hold-in-genoa.aspx] The last meeting was held in Genoa on 9-11 May 2018. Rear Admiral (UH) Nicola Carlone – in his capacity as Regional Commandant & Harbor Master of Genoa and LMRCC Project Leader – chaired the technical meeting between the Libyan Delegation, 12 representatives of the Ministries of Foreign Affairs, Defence, Communications and of the Libyan coastguard, and the Italian Coast Guard Delegation.1929Guardia Costiera, Progetto 0051 - Progetti finanziati dalla Commissione Europea Internal Security Fund, https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx, retrieved on 30/09/2020 [https://web.archive.org/web/20210512101512/https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx]
The declaration of the Libyan Search and Rescue region submitted in December 2017 was validated as of June 2018,1930Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 12. though Libya had no operational MRCC (and does not have one to date).1931European Commission, Answer given by High Representative/Vice-President Borrel i Fontelles on behalf of the European Commission, 08/011/2022, https://www.europarl.europa.eu/doceo/document/E-9-2022-003014-ASW_EN.html, retrieved on 08/08/2024 [https://web.archive.org/web/20221108134953/https://www.europarl.europa.eu/doceo/document/E-9-2022-003014-ASW_EN.html] Despite the absence of MRCC, the Libyan authorities were perceived as having fulfilled all the obligations required by the International Maritime Organization, and the EUTF projects over this question were considered as completed.1932Council of the European Union, Strategic Review on EUNAVFOR MED Operation Sophia, EUBAM Libya & EU Liaison and Planning Cell, 27/07/2018, https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf, retrieved on 15/09/2020 [https://web.archive.org/web/20200915160744/https://www.statewatch.org/media/documents/news/2018/aug/eu-sophia-libya-overview-11471-18.pdf], p. 15. The alleged Libyan SAR zone stretches to 80 nautical miles and covers roughly half of the route to Lampedusa,1933LISS, C., “Turning a blind eye? The rescue of migrants in the Mediterranean,” PRIF Blog, 09/04/2019, https://blog.prif.org/2019/04/09/turning-a-blind-eye-the-rescue-of-migrants-in-the-mediterranean/, retrieved on 09/10/2020 [https://web.archive.org/web/20210307161149/https://blog.prif.org/2019/04/09/turning-a-blind-eye-the-rescue-of-migrants-in-the-mediterranean/] making Libya a leading SAR coast state in the area “where most migrants had been saved and that was previously largely covered by the Italian MRCC based in Rome.”1934LISS, C., “Turning a blind eye? The rescue of migrants in the Mediterranean,” PRIF Blog, 09/04/2019, https://blog.prif.org/2019/04/09/turning-a-blind-eye-the-rescue-of-migrants-in-the-mediterranean/, retrieved on 09/10/2020 [https://web.archive.org/web/20210307161149/https://blog.prif.org/2019/04/09/turning-a-blind-eye-the-rescue-of-migrants-in-the-mediterranean/]
Italy and the EU, had successfully managed to legitimize the joint criminal enterprise of mass search, capture and forced transfers pursuant to EU’s 2nd policy, with full knowledge of the crimes against humanity committed against “migrants” in and by Libya, at sea and on its soil.
(c) Closed Ports Policy
Matteo Salvini succeeded Marco Minniti as Interior Minister and Angelino Alfano as Deputy Prime Minister in June 2018. Like his predecessors, Salvini worked diligently to undercut humanitarian rescue operations in the Mediterranean. Salvini pursued this agenda by issuing ad hoc orders that blocked rescue vessels —including some Italian Coast guard vessels—from docking and disembarking at Italian ports. He later formalized this “closed ports” policy through a series of non-binding directives and binding decrees that sought to criminalize the operations of rescue NGOs. The combined effect of this full-frontal assault was that NGOs’ search-and-rescue operations fell apart under Salvini’s watch.1935CUSUMANO, E., and Villa, M., “Sea Rescue NGOs: a Pull Factor of Irregular Migration?,” 2019, Robert Schuman Center, 2019/22, https://immigrazione.it/docs/2019/EUI_PullFactorIrregolarMigration.pdf, p. 3.
On 10 June 2018, just nine days after the beginning of his term, Salvini ordered Italian ports to prevent the disembarkation of the Aquarius, an NGO ship carrying 629 rescued refugees, including some that had been rescued by the Italian’s own Coast Guard.1936ALBANESE, F., GRIGNETTI, F. and ILLARIO, L., “Migranti, l’Italia sfida Malta. Salvini: chiudiamo i porti,” La Stampa, 11/06/2018, https://www.lastampa.it/cronaca/2018/06/11/news/migranti-l-italia-sfida-malta-salvini-chiudiamo-i-porti-1.35907153, retrieved on 09/10/2020 [https://web.archive.org/web/20200923153720/https://www.lastampa.it/cronaca/2018/06/11/news/migranti-l-italia-sfida-malta-salvini-chiudiamo-i-porti-1.35907153] Salvini’s order was backed by the Italian Transport Minister Danilo Toninelli, who co-signed a note with Salvini asking the Maltese government to allow the Aquarius to dock at one of its ports instead.1937BALMER, C., “Italy shuts ports to migrant boat, ask Malta to open its doors,” Reuters, 10/09/2018, https://uk.reuters.com/article/uk-europe-migrants-italy-malta/italy-shuts-ports-to-migrant-boat-asks-malta-to-open-its-doors-idUKKBN1J60UE, retrieved on 09/10/2020 [https://web.archive.org/web/20181124133759/https://uk.reuters.com/article/uk-europe-migrants-italy-malta/italy-shuts-ports-to-migrant-boat-asks-malta-to-open-its-doors-idUKKBN1J60UE] Salvini defended his decision with a statement on Facebook: “Malta takes in nobody. France pushes people back at the border, Spain defends its frontier with weapons. From today, Italy will also start to say no to human trafficking, no to the business of illegal immigration.”1938GALINDO, G., “Italian mayors rebel against Salvini’s order to block migrant ship,” Politico, 11/09/2018, https://www.politico.eu/article/matteo-salvini-italy-migrants-mayors-rebel-against-order-to-block-migrant-ship/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012085708/https://www.politico.eu/article/matteo-salvini-italy-migrants-mayors-rebel-against-order-to-block-migrant-ship/]
This was the first of many steps Salvini took to sabotage rescue operations and criminalize NGO SAR activity. In late June 2018, Salvini prevented another NGO ship, the MV Lifeline, from docking in Italian ports, saying the rescued people aboard would only ever see Italy “on a postcard”1939“Italy’s far-right government turns away rescue ship with 224 refugees: ‘They will only see Italy on a postcard’,” The Independent, 23/09/2018, https://www.independent.co.uk/news/world/europe/migrant-crisis-italy-rescue-ships-matteo-salvini-libya-spain-latest-mission-lifeline-a8412591.html, retrieved on 31/03/2021 and that humanitarian NGO vessels would “never again dock in an Italian port.”1940POVOLEDO, E., “Malta Says It Will Accept Stranded Ship if Others Take In Migrants, Too,” New York Times, 26/06/2018, https://www.nytimes.com/2018/06/26/world/europe/migrants-malta-italy.html, retrieved on 31/03/2021 [https://web.archive.org/web/20221224172653/https://www.nytimes.com/2018/06/26/world/europe/migrants-malta-italy.html] Salvini’s position was backed by Italian Prime Minister Giuseppe Conte, who announced that the MV Lifeline’s captain and crew would be investigated in order to determine their nationality and whether their actions had breached international law.1941PACE, Y., “Lifeline standoff: Italian Prime Minister says migrant vessels will dock in Malta,” Malta Today, 02/06/2018, https://www.maltatoday.com.mt/news/national/87832/lifeline_standoff_malta_in_diplomatic_efforts_to_avoid_humanitarian_cris#.XtAZ2C-z0_U, retrieved on 09/10/2020 [https://web.archive.org/web/20201012090941/https://www.maltatoday.com.mt/news/national/87832/lifeline_standoff_malta_in_diplomatic_efforts_to_avoid_humanitarian_cris]
In August 2018, Salvini even refused to let one of the Italian Coast Guard’s own ships, the Ubaldo Diciotti, disembark unless other EU states agreed to take the refugees the ship was carrying, keeping the boat’s passengers and coast guard staff in distress at sea for six days.1942SALDIVIA, G., “Italy’s Deputy Prime Minister Investigated After Migrants Kept Aboard Ship For 6 Days,” NPR, 26/08/2018, https://www.npr.org/2018/08/26/642026820/italys-deputy-prime-minister-investigated-after-migrants-kept-aboard-ship-for-6-, retrieved on 31/03/2021
On 23 December 2018, Salvini, presumably hoping to publicize his hardline approach, tweeted: “Italian ports are CLOSED.”1943LARGER, T., “Matteo Salvini: Italian ports closed to migrants,” Politico, 23/12/2018, https://www.politico.eu/article/matteo-salvini-italian-ports-closed-to-migrants/, retrieved on 09/10/2020 [https://web.archive.org/web/20201012085857/https://www.politico.eu/article/matteo-salvini-italian-ports-closed-to-migrants/]
On 26 July 2019, Salvini announced that 135 people rescued at sea by the Italian Coast Guard vessel Gregoretti would not disembark in Italy unless European countries agreed to welcome them,1944“Salvini Orders Italian Coast Guard Not to Rescue 135 Migrants,” Telesurtv.net, 26/07/2019,https://www.telesurenglish.net/news/Salvini-Orders-Italian-Coast-Guard-Not-to-Rescue-135-Migrants-20190726-0002.html, retrieved on 09/10/2020 [https://web.archive.org/web/20201012090502/https://www.telesurenglish.net/news/Salvini-Orders-Italian-Coast-Guard-Not-to-Rescue-135-Migrants-20190726-0002.html] stating that he would “not give any permission for them to disembark until Europe commits to accept all the immigrants on board.”1945“Italy’s Salvini blocks own coastguard ship with migrants on board,” Reuters, 09/12/2019, https://www.euronews.com/2019/07/26/italys-salvini-blocks-own-coastguard-ship-with-migrants-on-board, retrieved on 09/10/2020 [https://web.archive.org/web/20201012090721/https://www.euronews.com/2019/07/26/italys-salvini-blocks-own-coastguard-ship-with-migrants-on-board]
In the Italian system, a decree is a binding emergency measure passed by the cabinet which takes effect immediately and can last for a period of up to 90 days unless parliament converts it into law. At the center of Salvini’s agenda was a series of law decrees designed to push all parts of government, even those outside the remit of his Ministry, to follow his hardline approach on immigration matters.1946ECNL, “Italian Law Increases Penalties Related to Protests and Criminalises NGOs’ Rescue of Migrants at Sea.” 09/08/2019, https://ecnl.org/news/italian-law-increases-penalties-related-protests-and-criminalises-ngos-rescue-migrants-sea, retrieved on 31/03/2021
The first of these decrees, the “Security and Immigration Decree” (also known as the “Salvini Decree”), passed into law in December 2018 and significantly curtailed the rights of asylum seekers in Italy – a measure so controversial that it prompted Italian president Sergio Mattarella to pen a letter urging the government not to breach the Italian constitution in implementing the law.1947STRAZZARI, F. and GRANDI, M., “Government policy and the migrant crisis in the Mediterranean and African arenas,” 2019, Contemporary Italian Politics, 11(3), https://www.tandfonline.com/doi/full/10.1080/23248823.2019.1644833, retrieved on 19/06/2025 1948Altalex, “Decreto Salvini su sicurezza e immigrazione: il testo coordinato in Gazzetta,” 03/12/2018, https://www.altalex.com/documents/leggi/2018/09/25/decreto-salvini-sicurezza-e-immigrazione, retrieved on 31/03/2021 1949Konrad Adenauer Foundation, Italiens neuer Kurs in der Migrationspolitik: Das Dekret „Sicherheit und Einwanderung, June 2019, https://www.kas.de/documents/276296/276345/19-06-10+ITA+PERSPECTIVE+DE+pETRIS.+ENDdoc.pdf/c2432d85-8975-1939-a8f8-af6221e61454?version=1.0&t=1560503076333, retrieved on 31/03/2021, p. 2.
The following year, over a period from March to May 2019, Salvini’s Ministry issued five individual Directives, all going by Directive No 14100/141(8), known as the “Directive for the unified coordination of surveillance activities of maritime borders and for combatting illegal immigration.”1950Italian Ministry of the Interior, - Decreti, direttive e altri documenti, https://www.interno.gov.it/it/amministrazione-trasparente/disposizioni-generali/atti-generali/atti-amministrativi-generali/decreti-direttive-e-altri-documenti?f%5B0%5D=data_documenti_interesse%3A2019, retrieved on 31/03/2021
The directives purported to outline the international legal framework governing search-and-rescue efforts in the Mediterranean and tried to build a legal case as to why Italy could sabotage those efforts. According to the first directive, issued on 18 March 2019, vessels that rescued “irregular migrants” outside Italy’s search-and-rescue zone without the involvement of Italian authorities and subsequently entered Italian territorial waters were engaging in actions that harmed the “good order and security of the Italian State.”1951Italian Ministry of the Interior, Directive for the unified coordination of maritime border surveillance activities and the fight against illegal immigration, 19/03/2019, https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20200717235510/https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf], pp. 7-8. The text further argued that vessels carrying out such rescues were systematically and deliberately facilitating “the illegal entry into European territory of migrants”.1952Italian Ministry of the Interior, Directive for the unified coordination of maritime border surveillance activities and the fight against illegal immigration, 19/03/2019, https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20200717235510/https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf], pp. 7-8. The Directive urged the Heads of Police and Public Security, Carabinieri, Guardia di Finanza, Port Authorities, the Navy and Chiefs of Defense, to “scrupulously” implement measures to prevent “the illegal entry of immigrants on national territory, also to preserve the Italian state’s public order and security”— that is, to stop such vessels from reaching Italy.1953Italian Ministry of the Interior, Directive for the unified coordination of maritime border surveillance activities and the fight against illegal immigration, 19/03/2019, https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20200717235510/https://www.interno.gov.it/sites/default/files/direttiva_ministro_su_controllo_frontiere_marittime_18.03.2019.pdf], p. 8. The text did not consider that Libya was not a safe harbor and that disembarking rescued refugees in Libyan ports—the implicit goal of the Interior Ministry—would therefore clearly be in contravention of international customary law.
The subsequent four directives (issued on 4 April 2019,1954Ministro dell’Interno, Direttiva intervento dell’assetto “Alan Kurdi” (ONG Sea Eye) iniziato in 3 aprile, 04/04/2019, https://www.interno.gov.it/sites/default/files/direttiva_4_aprile_2019.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240525230945/https://www.interno.gov.it/sites/default/files/direttiva_4_aprile_2019.pdf] 15 April 2019,1955Ministro dell’Interno, Direttiva per il coordinamento unificato dell’attività di sorveglianza delle frontiere marittimee per il contrasto all’immigrazione illegal, 15/04/2019, https://www.interno.gov.it/sites/default/files/direttiva_del_ministro_n._141001418_15_aprile_2019.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20220905164200/https://www.interno.gov.it/sites/default/files/direttiva_del_ministro_n._141001418_15_aprile_2019.pdf] 15 May 2019,1956Ministro dell’Interno, Direttiva intervento di Sea Watch 3 in area SAR libica, 15/05/2019, https://www.interno.gov.it/sites/default/files/direttiva_15_maggio_2019.pdf[https://web.archive.org/web/20240000000000*/https://www.interno.gov.it/sites/default/files/direttiva_15_maggio_2019.pdf] and 13 June 20191957Ministro dell’Interno, Direttiva 13 giugno 2019 - “Sea Watch 3” – Intervento di soccorso del 12 giugno 2019 in area SAR libica, 13/06/2019, https://www.interno.gov.it/sites/default/files/2022-07/direttiva_13_6_2019_.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240811085140/https://www.interno.gov.it/sites/default/files/2022-07/direttiva_13_6_2019_.pdf]) focused on specific NGO vessels (the Alan Kurdi, the Mare Jonio, and twice Sea Watch 3, respectively) and argued that if the NGOs running these ships did not abide by the Ministry’s instructions, they were in breach of national, European and international law, and may be charged with facilitating “illegal” migration. The Ministry further instructed Italian authorities to interdict any passage of said vessels through Italian waters.
Italy’s directives thus served to instrumentalize its legislative and judicial powers to dismantle the operation of SAR NGOs, for the purpose of facilitating the crimes it was committing directly and by proxy via the Libyan coastguard. Because the lawful work of SAR NGOs led to safe disembarkation in Italy, it undermined the unlawful Italian policy aimed at unsafe disembarkation in Libya, Italy had no choice but to attach its own criminality to the NGOs.
The directives reinforced Salvini’s closed ports policy by adding further obstacles to the disembarkation of rescued people in Italian ports. They provided a basis, albeit spurious, for the prosecution of NGOs “breaching” the Directive. Although ministerial directives are not binding, they may be used to indicate the interpretation the public administration gives on a specific topic and invites others to follow. Through this directive, the Ministry of Interior meant to push other administrative entities involved in SAR or disembarkation activities that are not under the hierarchical chain of command of the Ministry of Interior – to conform to its political line. Indeed, the directive was addressed to the Heads of the Police and Public Security, the Carabinieri, the Guardia di Finanza, the Port Authorities’ General Commander, the Navy and the Defense Chiefs of staff—a list that included entities that reported to the Ministry of Infrastructure and Transport and to the Ministry of Defense, not to the Interior Ministry.1958MACCANICO, Y., “Italy’s redefinition of sea rescue as a crime draws on EU policy for inspiration,” April 2019, Statewatch, https://www.statewatch.org/media/documents/analyses/no-341-italy-salvini-boats-directive.pdf, retrieved on 09/10/2020, p. 1. The directive was an attempt to press other ministries to acquiesce “to the Interior Ministry’s expansive reading of security.”1959MACCANICO, Y., “Italy’s redefinition of sea rescue as a crime draws on EU policy for inspiration,” April 2019, Statewatch, https://www.statewatch.org/media/documents/analyses/no-341-italy-salvini-boats-directive.pdf, retrieved on 09/10/2020, p. 6. Despite the non-binding nature of the directive, state authorities followed its stipulations, further hindering NGOs’ search and rescue operations. For example, the Mare Jonio – the vessel that was the subject of the April 15 directive – was kept in custody as part of a criminal investigation of the ship’s captain for allegedly aiding and abetting “illegal immigration” just a few weeks later.1960“Italian prosecutors don’t uphold Mare Jonio ship seizure,” InfoMigrants, 15/05/2019, https://www.infomigrants.net/en/post/16891/italian-prosecutors-don-t-uphold-mare-jonio-ship-seizure, retrieved on 09/10/2020 [https://web.archive.org/web/20201012091512/https://www.infomigrants.net/en/post/16891/italian-prosecutors-don-t-uphold-mare-jonio-ship-seizure]
In June, Salvini’s ministry introduced another law decree: Law Decree no 53 of 14 June 2019, which the Italian parliament passed into law on 8 August 2019 (Law no 77).1961CUSUMANO, E. and VILLA, M., “Angels” to “Vice Smugglers”: the Criminalization of Sea Rescue NGOs in Italy. Eur J Crim Policy Res (2020). https://doi.org/10.1007/s10610-020-09464-1, p. 31. The new decree empowered the Interior Minister to limit or block altogether the entry of private vessels into Italian territorial waters for reasons of national security and public order.1962CUSUMANO, E. and VILLA, M., “Angels” to “Vice Smugglers”: the Criminalization of Sea Rescue NGOs in Italy. Eur J Crim Policy Res (2020). https://doi.org/10.1007/s10610-020-09464-1, p. 31.
Shipmasters that disobeyed such orders would face fines of up to 1 million euros and the confiscation of their vessels.1963CUSUMANO, E. and VILLA, M., “Angels” to “Vice Smugglers”: the Criminalization of Sea Rescue NGOs in Italy. Eur J Crim Policy Res (2020). https://doi.org/10.1007/s10610-020-09464-1, p. 31. The new legislation reinforced the powers of the Ministry of the Interior and evidently aimed to put an end to NGO rescue missions in the central Mediterranean. In order to support the decree law and his Interior Minister, Prime Minister Giuseppe Conte noted, “we want certain behavior to be a bit more transparent on the part of the NGOs too, I don’t want to lay it on, but we are asking for greater transparency."1964TODO, L., “Italy adopts decree that could fine migrant rescuers up to €50,000,” The Guardian, 15/06/2019,https://www.theguardian.com/world/2019/jun/15/italy-adopts-decree-that-could-fine-migrant-rescue-ngo-aid-up-to-50000, retrieved on 09/10/2020 [https://web.archive.org/web/20201012091659/https://www.theguardian.com/world/2019/jun/15/italy-adopts-decree-that-could-fine-migrant-rescue-ngo-aid-up-to-50000]
The law remained in force as of March 2021. As of December 2021, 59 legal proceedings had been initiated against NGOs in the EU, the majority of which by Italy, mostly on grounds of abetting “illegal” migration or colluding with smugglers.1965uropean Agency for Fundamental Rights (FRA), Table 2: Legal proceedings by EU Member States against private entities involved in Search and Rescue operations in the Mediterranean Sea (December 2021), https://fra.europa.eu/sites/default/files/2021-12/Table%202%20Criminalisation%20NGO%20SAR%20up%20to%20December%202021.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240205202858/https://fra.europa.eu/sites/default/files/2021-12/Table%202%20Criminalisation%20NGO%20SAR%20up%20to%20December%202021.pdf] Over the same period, Italian authorities impounded numerous rescue boats such as Iuventa, from the German NGO Jugend Rettet and Open Arms, from the Spanish NGO Proactiva Open Arms.1966uropean Agency for Fundamental Rights (FRA), Table 2: Legal proceedings by EU Member States against private entities involved in Search and Rescue operations in the Mediterranean Sea (December 2021), https://fra.europa.eu/sites/default/files/2021-12/Table%202%20Criminalisation%20NGO%20SAR%20up%20to%20December%202021.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240205202858/https://fra.europa.eu/sites/default/files/2021-12/Table%202%20Criminalisation%20NGO%20SAR%20up%20to%20December%202021.pdf] Crew members were investigated.1967European Union Agency for Fundamental Rights (FRA), “Table 2: Legal proceedings by EU Member States against private entities involved in Search and Rescue operations in the Mediterranean Sea (15 December 2020)”, 15/12/2020, https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20210501200405/https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf] Activists who volunteered on SAR missions were detained and faced baseless accusations.1968European Union Agency for Fundamental Rights (FRA), “Table 2: Legal proceedings by EU Member States against private entities involved in Search and Rescue operations in the Mediterranean Sea (15 December 2020)”, 15/12/2020, https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20210501200405/https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_december_2020_002.pdf] In April 2021, Italian investigative reporters revealed that Sicilian prosecutors investigating the Iuventa case had, in a potentially illegal move, wiretapped numerous journalists and recorded their conversations with colleagues, lawyers, and NGOs.1969PALLADINO, A. “Intercettazioni e indagini contro i giornalisti che scrivono di Libia e migrant,” Domani, 2/04/2021, https://www.editorialedomani.it/fatti/inchiesta-contro-ong-intercettati-giornalisti-porsia-scavo-mannocchi-v3quj6pm, retrieved on 10/04/2021 After six years of legal proceedings and the threat of charges carrying up to 20 years in prison, the charges against the crew members of the Iuventa were finally dropped in April 2024.1970Amnesty International, Italien: Anklage Gegen Seenotretter*innen der Iuventa-crew endlich fallengelassen, 19/04/2024, https://www.amnesty.de/pressemitteilung/italien-anklage-gegen-iuventa-crew-fallengelassen-seenotrettung, retrieved on 03/08/2024 [https://web.archive.org/web/20240516092732/https://www.amnesty.de/pressemitteilung/italien-anklage-gegen-iuventa-crew-fallengelassen-seenotrettung]
VIDirect participation in the alleged CAH pursuant to EU's 2nd policy including CAH of Deportation
Under international maritime law, international waters are divided into different Search and Rescue Regions, the borders of which are defined through international agreements between coastal states under the coordination of the International Maritime Organization.1971Alarm Phone, Borderline Europe, Mediterranean: Saving Humans, and Sea-Watch, Remote Control: The EU-Libya Cooperation in Mass Interceptions of Migrants in the Mediterranean, 17/06/2020, https://eu-libya.info/, retrieved on 31/03/2021 [https://web.archive.org/web/20241206173730/https://eu-libya.info/], p. 11. Coastal states are in charge of coordinating SAR activities in their respective SAR zones, a task for which they are required to set up rescue coordination centers (MRCC), appropriate communication infrastructure, equipment to receive distress calls, provide the necessary facilities to conduct rescues1972International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 regulation § 2.2.1. and establish and operate an “adequate and effective search and rescue service.”1973United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 article 98(2). In the ordinary course of events, when an emergency occurs at sea, the distress call or warning issued by the vessel in distress or by a proxy vessel is transmitted to a nearby MRCC. That MRCC, upon receiving the distress call, is responsible for immediately coordinating a rescue effort. Importantly, under international law, the first MRCC to receive a distress call must coordinate rescue efforts even if the emergency is taking place outside its own Search and Rescue Region, until another competent MRCC takes over.1974Alarm Phone, Borderline Europe, Mediterranean: Saving Humans, and Sea-Watch, Remote Control: The EU-Libya Cooperation in Mass Interceptions of Migrants in the Mediterranean, 17/06/2020, https://eu-libya.info/, retrieved on 31/03/2021 [https://web.archive.org/web/20241206173730/https://eu-libya.info/], p. 11. The MRCC is responsible for issuing information and instructions to all nearby vessels that might potentially intervene. When multiple vessels respond and participate in the rescue effort, the MRCC must designate one of them as on-scene coordinator, who will take charge and coordinate the assets on site while the MRCC retains overall coordination powers.1975CUTTITA, P., “Inclusion and Exclusion in the Fragmented Space of the Sea: Actors, Territories and Legal Regimes Between Libya and Italy,” in Burroughs E. and Williams, K. (eds), Contemporary Boat Migration: Data, Geopolitics, and Discourses, (Rowman & Littlefield 2018), p. 89. Finally, coastal states must ensure the safe disembarkation of rescued people.1976CUTTITA, P., “Inclusion and Exclusion in the Fragmented Space of the Sea: Actors, Territories and Legal Regimes Between Libya and Italy,” in Burroughs E. and Williams, K. (eds), Contemporary Boat Migration: Data, Geopolitics, and Discourses, (Rowman & Littlefield 2018), p. 80. Flag states are obliged to ensure vessels flying their flag “render assistance to any person found at sea in danger of being lost” as fast as possible and without prejudice to the nationality or status of the person.1977United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 article 98(2). 1978International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 § 2.1.10. Ships conducting the rescue are required to disembark survivors at a “place of safety.”1979International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 § 3.1.6 and § 4.8.5.
Since 2012 and the ECtHR judgement in Hirsi, vessels cannot disembark rescuees in Libya. The intentional refusal of EU flag and coastal states from conducting and coordinating rescue, the attack against SAR NGOs rendering assistance in their stead, and the orchestration of search and capture operations of the Libyan coastguard share the same twofold objective: to prevent arrivals to Europe by ensuring disembarkation of the targeted civilian population in Libya on the one hand, while avoiding the legal responsibility for this criminal policy on the other hand. Italy and the EU have built an overarching legal, political, and economic framework to oust SAR NGOs and bring the LYCG to operate in the Central Mediterranean in its stead. But the attempt to withdraw from the Central Mediterranean and avoid criminal liability for mass killing by drowning and the transports of survivors to Libyan has failed. Despite the immense material support and investment in capacity building, the LYCG is still unable - and at times unwilling - to operate independently. Consequently, Italy retains effective control as a coastal state and remains directly involved on-scene as a flag state. The MRCC in Rome is coordinating SOLAS events in order to assign command to LYCG vessels, even if Italian, other Member States, the EU, NGO, or merchant vessels are in the immediate vicinity; and assets flying Italian flag are present on scene to ensure the LYCG succeeds in its operation.
As described above, until 2018 Italy’s MRCC Rome was de facto the sole coordination center responsible for search and rescue in the Central Mediterranean: Libya had never declared a Search and Rescue Region and thus had no MRCC, and Malta’s MRCC was both understaffed and often unwilling to assume its rescue responsibilities.1980CUTTITA, P., “Inclusion and Exclusion in the Fragmented Space of the Sea: Actors, Territories and Legal Regimes Between Libya and Italy,” in Burroughs E. and Williams, K. (eds), Contemporary Boat Migration: Data, Geopolitics, and Discourses, (Rowman & Littlefield 2018), p. 80. As a result, most distress calls went to MRCC Rome, which coordinated subsequent rescue efforts. Spread thin across its extended area of responsibility, especially after the termination of Mare Nostrum, at first MRCC Rome viewed rescue NGOs as valuable assets, even as the Italy at large embarked on a campaign to delegitimize and criminalize them.1981CUSUMANO, E., “Humanitarians at sea: Selective emulation across migrant rescue NGOs in the Mediterranean sea,” 2019, Contemporary Security Policy, 40(2), DOI: 10.1080/13523260.2018.1558879, https://www.tandfonline.com/doi/full/10.1080/13523260.2018.1558879, retrieved on 20/107/2021, p. 241. The MRCC initially opposed the Interior Ministry’s efforts to create a Code of Conduct and continued to arrange the transfer of asylees from one NGO vessel to another — which the code forbade — and did so “in open defiance of Italy’s interior ministry."1982HOWDEN, D., “The Central Mediterranean: European Priorities, Libyan Realities,” 2017, Refugees Deeply, https://www.journalismfund.eu/sites/default/files/2018-11/Refugees%2BDeeply%2BQuarterly%2B2%2Bv7.pdf, retrieved on 31/03/2021, p. 13. Over time, however, under the leadership of Andrea Tassara, the MRCC’s stance began to shift. This change occurred around the same time as Italy and the EU intensified their efforts to equip, fund, and train the Libyan coastguard and to establish a Libyan Search and Rescue Region and MRCC. Even as it worked to formally shift responsibility to Libyan authorities, Italy retained “‘effective control and decisive influence’ over Libyan Search and Rescue and Interception operations."1983GIUFFRÉ, M., The Readmission of Asylum Seekers under International Law, (London, Bloomsbury Publishing, 2020), pp. 308-309. Over the course of 2017 and 2018, Italy stationed several naval assets in Tripoli, in part to support the operations of the Libyan coastguard,1984Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf] and in April 2018, an Italian court determined that the interventions of the Libyan coastguard were taking place “under the aegis of the Italian navy ships present in Tripoli."1985Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 10. Libyan authorities remained unable to coordinate or carry out their own search and rescue operations both before and after the declaration of a Libyan SAR zone in June 2018, and in any event their operation was established in the first place and intentionally designed to ensure disembarkation would take place in the unsafe port of Libya. Despite being aware of these serious breaches of international maritime, refugee and human rights law obligations, MRCC Rome refrained from giving priority to vessels that, unlike the Libyan coastguard, would disembark rescued people in a safe harbor. From 2017 onward, MRCC even actively demanded and encouraged LYCG involvement at the expense of more adequate and competent assets, often with the active support of the Italian navy.1986Creta, S., ET AL, “How Frontex helps migrants back to Libyan Torture Camps,” Spiegel, 29/04/2021, https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83, retrieved on 14/07/2024 [https://web.archive.org/web/20240102154202/https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83] 1987Border Violence Monitoring Network, The Black Book of Pushbacks Volume 1, December 2020, https://borderviolence.eu/app/uploads/BVMN_Black_Book_Pushbacks_2020-vol1.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240809091505/https://borderviolence.eu/app/uploads/BVMN_Black_Book_Pushbacks_2020-vol1.pdf] 1988Alarm Phone, Borderline Europe, Mediterranean: Saving Humans, and Sea-Watch, Remote Control: The EU-Libya Cooperation in Mass Interceptions of Migrants in the Mediterranean, 17/06/2020, https://eu-libya.info/, retrieved on 31/03/2021 [https://web.archive.org/web/20241206173730/https://eu-libya.info/] These actions were taken both in parallel and in coordination with Frontex’ similar practices.1989Creta, S., ET AL, “How Frontex helps migrants back to Libyan Torture Camps,” Spiegel, 29/04/2021, https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83, retrieved on 14/07/2024 [https://web.archive.org/web/20240102154202/https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to-libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83] 1990Border Violence Monitoring Network, The Black Book of Pushbacks Volume 1, December 2020, https://borderviolence.eu/app/uploads/BVMN_Black_Book_Pushbacks_2020-vol1.pdf, retrieved on 03/08/2024 [https://web.archive.org/web/20240809091505/https://borderviolence.eu/app/uploads/BVMN_Black_Book_Pushbacks_2020-vol1.pdf] 1991Alarm Phone, Borderline Europe, Mediterranean: Saving Humans, and Sea-Watch, Remote Control: The EU-Libya Cooperation in Mass Interceptions of Migrants in the Mediterranean, 17/06/2020, https://eu-libya.info/, retrieved on 31/03/2021 [https://web.archive.org/web/20241206173730/https://eu-libya.info/] Crucially, while Frontex appears to give information directly to the Libyan coastguards, it also seems to rely on the Italian MRCC as a “communication relay” to inform the LYCG of boats in distress identified by EU aerial surveillance.1992DG HOME, Letter to Fabrice Leggeri, 18/03/2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf, retrieved on 08/08/2024 [https://web.archive.org/web/20240228222359/https://www.statewatch.org/media/documents/news/2019/jun/eu-letter-from-frontex-director-ares-2019)1362751%20Rev.pdf], p. 2.
The First Communication provided evidence for specific incidents giving rise to this modus operandi. This body of evidence hinges on investigations conducted by credible civil society organizations such as Forensic Architecture/Oceanography. Despite the ICC Prosecutor statement that the OTP is ‘carefully analyzing’ the First Communication, in the past 6 years none of these incidents were examined:
On 10 May 2017, MRCC Rome received a distress call from the NGO Sea Watch on behalf of a sinking migrant boat and requested the NGO to intervene. However, Sea Watch’s rescue operation was interrupted by the Libyan coastguard. This Libyan intervention was coordinated by the Italian MRCC, which instructed the NGO vessel to let the Libyan boat take the lead of the operation. The Libyan coastguard proceeded to intercept migrants at gunpoint, detain them on board, and pull them back to Libya.1993Sea-Watch, “Libyan navy is risking lives of Sea-Watch crew and refugees during illegal return operation,” 10/05/2017, https://sea-watch.org/en/libyan-navy-is-putting-sea-watch-crew-and-refugees-into-danger-during-an-illegal-return-operation/, retrieved on 06/04/2019 [https://web.archive.org/web/20240305042742/https://sea-watch.org/en/libyan-navy-is-putting-sea-watch-crew-and-refugees-into-danger-during-an-illegal-return-operation/] 1994Sea-Watch, “Sea-Watch demands independent investigation of the illegal return of an overcrowded wooden boat,” 11/05/2017; online, https://sea-watch.org/en/pm-sea-watch-demands-independent-investigation-of-the-illegal-return-of-an-overcrowded-wooden-boat/, retrieved on 06/04/2019 [https://web.archive.org/web/20220307202008/https://sea-watch.org/en/libyan-navy-is-putting-sea-watch-crew-and-refugees-into-danger-during-an-illegal-return-operation/]
On 27 August 2017, MRCC Rome informed SOS Méditerranée‘s vessel the Aquarius of a boat in distress.1995Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021 Yet as the NGO vessel approached the site, MRCC Rome told the Aquarius to wait for the arrival of the Libyan coastguard. Only an hour and a half after establishing visual contact with the boat in distress and after urging MRCC Rome to allow it to intervene was the Aquarius allowed to start the rescue operation.1996Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 66. The rest of the paragraph draws from the same source.
On 27 September 2017, an Italian Navy warship, the Andrea Doria, sent out two distress notifications to the Libyan coastguard providing the position of distressed boats off the of coast Libya.1997Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 68. Despite its own presence on site, and despite the nearby presence of several merchant ships, the Italian Navy “waited for the Libyan Coast Guard to arrive to intercept and pull the refugees back to Libya.”1998Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 69.
On 11 October 2017, MRCC Rome assigned the NGO vessel Vos Hestia to rescue a vessel in distress.1999Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 70. Around the same time, however, a civilian aircraft operated by the NGO Sea Watch overheard the Italian Navy vessel Andrea Doria communicate with the LYCG, asking the Libyan Coast guard to proceed to the same site with maximum speed and stating that “we are waiting for you to perform interception.” The Andrea Doria arrived at the scene but stayed at distance, letting the Libyan coastguard perform most of the rescue operation.2000Forensic Oceanography, Mare Clausum, Italy and the EU’s Undeclared Operation to Stem Migration across the Mediterranean, May 2018, https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf?utm_ retrieved on 31/03/2021, p. 71.
On 6 November 2017, the Italian coast guard sent a distress signal to all vessels transiting an area off the coast of Tripoli, alerting them to a boat in distress. Sea Watch vessel, which had been present just outside the Libyan continuous zone, received the signal and headed toward the boat. As the rescue operation proceeded, MRCC Rome failed to clearly establish whether Sea Watch or the Libyan coastguard should assume on-scene command, leading to a standoff between the NGO and the Libyan coastguard, with the latter obstructing the rescue efforts. The NGO succeeded in rescuing some, while many others drowned or were forcibly returned to Libya.2001Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], pp. 229-232.
On 8 December 2017, a military aircraft from the EUNAVFOR MED operation spotted a boat in distress in international waters, 35 NM off the Libyan coast. MRCC Rome requested the Aquarius of the NGO SOS Mediterranée to approach the vessel in distress. While heading toward the boat, the Aquarius was passed by a faster EUNAVFOR MED Navy ship, which subsequently slowed down, allowing a Libyan coastguard vessel to reach the rubber boat first. Upon reaching the scene, the Aquarius was informed by MRCC Rome that the Libyan coastguard was assuming coordination of the rescue. The same day, a Facebook post by the LYCG claimed it had “saved” 209 “migrants” in distress at sea. The “migrants” were then transferred to detention centers in Tripoli. The Italian coast guard put the figure at 260 people.2002Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], p. 224.
On 15 December 2017, MRCC Rome instructed the NGO boat Aquarius to head to a boat in distress in support of the Rizzo, an Italian Navy ship. Despite the Rizzo having assumed “on-scene command” and instead of rescuing the people themselves, the Rizzo provided the Libyan coastguard with coordinates of the vessel in distress and asked the Libyans to intercept it (a communication which the Aquarius overheard via radio). The Aquarius ended up reaching the boat first and conducting the rescue operation with the support of the Rizzo.2003Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], pp. 224-225.
On 15 March 2018, MRCC Rome instructed the vessel Open Arms of the NGO Proactiva Open Arms to head toward a vessel in distress. The MRCC also informed the LYCG, which asserted command over the rescue and had the MRCC requesting the NGO to “stay out of sight”. Yet when the NGO arrived on the scene the LYCG was not in sight; the situation of now multiple boats in distress started deteriorating, and Open Arms started taking people on board. Upon arrival of the Libyan coastguard, a standoff ensued, with the Libyan coastguard threatening Open Arms and asking the NGO to hand over the refugees. The MRCC Rome itself asked for the Italian Navy to intervene for the safety of the NGO, a request that was denied on the ground that the Italian Navy “could not interfere with the operations of a sovereign state’s assets”. Meanwhile, the Italian Navy ship Capri, docked in Tripoli, acted as a relay of information between Italian and Libyan authorities, with an Italian judge later determining that the intervention of the Libyan patrol vessels had taken place “under the aegis of the Italian navy ships present in Tripoli.” Eventually, Open Arms was able to rescue all the “migrants”. Upon disembarking in Italy, the NGO ship was seized by the Italian police and two members of its crew were accused of “aiding and abetting illegal migration” as well as “criminal conspiracy”.2004Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], pp. 226-228. The entire the paragraph draws from the same source.
On 31 March 2018, MRCC Rome requested the Aquarius (SOS Mediterrannée) to head toward a boat with an estimated 120 people. Although the Aquarius was the first to arrive on site, MRCC Rome informed its crew that the Libyan coastguard, which was still on its way, was in charge of the rescue and requested the NGO not to interfere.2005Shatz, O., Branco, J., et al., Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf], p. 228. The entire the paragraph draws from the same source.
On 10 April 2019, the NGO Sea Watch informed MRCC Rome of a boat in distress. Although several merchant and navy vessels were nearby, MRCC Rome did not request any of these vessels to intervene and instead waited for Libyan authorities to approach. Libyan authorities intervened only 12 hours later.2006ALEX B., “United We Talk 17: EU and Libya Collaboration – Pull Backs by Remote Control | United We Stream,” 17/06/2020, https://www.youtube.com/watch?v=r9uRcLYkjN4
On 3 May 2019, a civilian aircraft spotted a boat in distress.2007ALEX B., “United We Talk 17: EU and Libya Collaboration – Pull Backs by Remote Control | United We Stream,” 17/06/2020, https://www.youtube.com/watch?v=r9uRcLYkjN4 The MRCC Rome did not request the nearby vessels to render assistance. The Italian Military vessel P492 Comandante Bettica, led by Lieutenant Davide Privitera, was reported to have actively moved away from the scene of the shipwreck.
Countless similar lethal incidents unfolded in the Central Mediterranean route since the First Communication was submitted to the ICC Prosecutor in June 2019. Numerous investigations by civil society organizations and journalists documented hundreds of direct communications between Italian and EU officials and so-called Libyan coastguards. Thousands of people have been killed by drowning as a result. Tens of thousands of others have been shipped to camps where, according to the ICC Prosecutor, they were subjected to numerous crimes against humanity. Although the UN’s Fact Finding Mission determined that European nationals are aiding and abetting crimes against humanity against “migrants” in the Central Mediterranean route, notwithstanding the ICC has jurisdiction over these Italian and other European nationals, not a single official has been investigated, indicted, convicted or sentenced.
The widespread and systematic attack directed against the civilian population of “migrants” in pursuant to Italy’s statal policy and EU’s organizational policy is ongoing. From 2014 to date, more than 25,000 members of the targeted group were killed by drowning, and more than 150,000 survivors were abducted and deported or forcibly transferred to Libyan official detention facilities and private torture houses. In May 2017 the ICC Prosecutor announced at the UN Security Council: “we must act”. In the past 8 years it has failed to act.
EKey individuals
Suspects
-
Matteo Renzi>
02/2014–12/2016
ItalyThe European CouncilPrime Minister
-
Matteo Salvini>
2018–2019
ItalyInterior Minister & Deputy Prime Minister
-
Carmelo Zuccaro>
2016–2023
ItalyPublic prosecutor in Catania
-
Angelino Alfano>
2013–2016
Interior MInister
2016–2018
Foreign Affairs Minsiter
-
Marco Minniti>
2016–2018
ItalyInterior Minister
-
Mario Morcone>
-
Enrico Credendino>
2015–2019
European CommissionItalyAdmiral Commander, Operation SOPHIA
-
Sabina Madaro>
2016–(unclear)
SpainAdvisor of International Affairs
-
Paolo Gentiloni>
-
Andrea Tassara>
2018–2020
ItalyChief Office III Operation Room IMRCC Department, Italian Coastguards
-
Elisabetta Trenta>
2018–2019
ItalyMinister of Defence
-
Valter Girardelli>
2016–2019
ItalyChief of Staff of Italian Navy
-
Giuseppe Conte>
2018–2021
ItalyPrime Minister
-
Vincenzo Amendola>
2016–2018
ItalyUndersecretary to the Italian Minister of Foreign Affairs
-
Maurizio Massari>
2016–2021
ItalyPermanent Representative of Italy to the EU
-
Stefano Sannino>
2016–2019
Council of the European UnionPermanent Representative to the EU
-
Danilo Toninelli>
2018–2019
ItalyMinister of Transport & Infrastructure
-
Giuseppe Perrone>
2017–2018
ItalyAmbassador to Libya
-
Domenico Manzione>
2013–2018
ItalyUndersecretary to the Interior Ministry
-
Luigi Maria Vignali>
2017–Present
ItalyDirector General for Italians Abroad and Migration Policies
-
Vincenzo Mancini>
2016–(end date unclear)
ItalyArea Manager of North Africa and the Middle East at Cantiere Navale
-
Vincenzo Melone>
2015–2018
ItalyCommander of Italian Coastguards
-
Andrea Orlando>
2014–2018
ItalyMinister of Justice
-
Nicola Carlone>
2015–2018
ItalyChief of Italian Coastguards Plans and Operations
-
Ambrogio Cartosio>
2011–2017
ItalyPublic Prosecutor, Trepani
-
Andrea Tarondo>
1998–2018
ItalySubstitute Prosecutor, Trepani
Involved
-
Luca di Gianfrancesco>
2018–2019
ItalyDiplomatic Counsellor to Minister Danilo Toninelli
-
Achille Cazzaniga>
2017–2019
ItalyEuropean External Action Service (EEAS)Chief of Staff for EUNAVFOR MED
-
Andrea Bonomo>
2016–unclear
ItalyDeputy Prosecutor of Catania
-
Antonio Basile>
2016–2021
ItalyDeputy General Commander of the Italian Coast Guard
-
Antonio Giannelli>
2014–2018
ItalyAdvisor on Asylum Office VII - Asylum and Immigration of the Cabinet
-
Attilio Maria Gabriele Carnabuci>
2014–2018
ItalyAdvisor on Asylum at the Office VII - Asylum and Immigration of the Cabinetof the Ministry of Interior
-
Benedetto Giuntini>
2014–2017
ItalyDG Italians Citizens Abroad and Migration Policies – Chief Office VII(later V) - Bilateral and multilateral cooperation in the field of migration, international protection and international adoption
-
Claudio Graziano>
2014–2018
ItalyChief of the Defense General Staff
-
Christino Alemanno>
2019–unclear
ItalyChief of Staff Air Force Operations Command
-
Daniele Bernardo>
2017
ItalyDirector of the Administrative-Accounting Sector of the Office General and Legal Affairs at the Central Directorate for Immigration and Border Police
-
Daniele Gianelli>
2017–2019
ItalyChief Office II Operations - 3° Department of the General Command of the Italian Coast Guard Reparto - Plans and Operations
-
Donatella Candura>
2016–2019
ItalyResponsible European Affairs at Office III – International Affairs of the Offices of Direct Collaboration to the Chief of the Department for Civil Liberties and Immigration
-
Elena Clemente>
2016–2022
ItalyDG for Development Cooperation - Chief Office I - Development cooperation policies within the European Union
-
Elisabetta Brosio>
2006–2017
ItalyAdvisor for Bilateral and Multilateral Relations and International Agreements to Office VIII - International Affairs of the Cabinet
-
Emanuela Claudia Del Re>
2018–2021
ItalyUndersecretary to Ministry of Foreing Affairs Enzo Moavero Milanesi and Luigi di Maio
-
Emanuela Garroni>
-
Fabio Cassese>
-
Giampaolo Cantini>
2014–2016
ItalyDirector DG for Development Cooperation
-
Giovanni De Tullio>
2017–2018
ItalyDeputy General Commander of the Italian Coast Guard
-
Giuseppe Aulicino>
2019 – at least until 2022
ItalyChief Office I - Plans of the 3° Department of the General Command of the Italian Coast Guard - Plans and Operations
-
Giuseppe Berruti Bergotte>
2016–2017
ItalyForce Commander of Operation Sophia. Commander of aircraft carrier Garibaldi.
-
Giuseppe de Giorgi>
2013–2016
ItalyChief of Italian Navy
-
Graziano Delrio>
2014–2018
ItalyMinister of Transports and Infrastructures
-
Ilarione Dell'Anna>
2014–2017
ItalyDeputy General Commander of the Italian Coast Guard
-
Jessica Laganà>
2019–2021
ItalyDeputy Chief of Cabinet
-
Luciana Lamorgese>
2013–2017
ItalyChief of Cabinet Ministry of Interior
2019–2022
Council of the European UnionItalyInterior Minister
-
Luigi di Maio>
2019–2022
ItalyMinister of Foreign Affairs
-
Luigi Iandoli>
2020–2021
ItalyHead of the Third Division of the Immigration Service at the Central Directorate for Immigration and Border Police
-
Mario Giro>
2014–2018
ItalyDeputy Minister to Paolo Gentiloni and Angelino Alfano
-
Maria Luisa Battaglia>
2017–end date unclear
ItalyAdvisor on Bilateral Coopertoation to Office VIII - International Affairs of the Cabinet of the Ministry of Interior
-
Massimo Bontempi>
2017–2021
ItalyChief of Central Directorate for Immigration and Border Police
-
Michele Baiano>
2016 – end date unclear
ItalyDeputy General Secretary, Ministry of Foreign Affairs
-
Nicoletta Bombardiere>
2016–2019
ItalyDiplomatic Advisor to Minister of Defense Roberta Pinotti
-
Paola Amedei>
2017–2018
ItalyDiplomatic Adviser to Minister of Interior Marco Minniti, Angelino Alfano, Marco Minniti
-
Paola De Micheli>
2019–2021
ItalyMinister of Transports and Infrastructures
-
Paolo Crudele>
2017–2022
ItalyDeputy Director DG Italians Citizens Abroad and Migration Policies
-
Paolo Cafaro>
2011–2015
ItalyChief Office II - Operations of the 3° Department of the General Command of the Italian Coast Guard - Plans and Operations
-
Paolo Cuculi>
2016–2018
ItalyDeputy Director DG for Development Cooperation
-
Patrizia Impresa>
2017
ItalyVice chief of Cabinet
-
Pier Federico Bisconti>
2014–2016
ItalyDeputy Director of Cabinet Ministry of Defence for the Navy
-
Riccardo Guariglia>
2018–2019
ItalyChief of Cabinet Ministry of Foreign Affairs
-
Roberto Colaminè>
2019
ItalyDeputy Director General for Cooperation Development/Central Director for Bilateral Cooperation Policies development and emergncy response
-
Sandro Gallinelli>
2015–2017
ItalyChief Office I – Plans of the 3° Department of the General Command of the Italian Coast Guard – Plans and Operations
-
Saverio Capolupo>
2014–2018
ItalyGuardia di Finanza General Command
-
Stefano Beltrame>
2018–2019
ItalyDiplomatic Adviser to Minister of Interior Matteo Salvini
-
Stefano Canidani>
2018–2019
ItalyUndersecretary to the Minister of Interior
-
Tiziana Leone>
2014 – until at least 2024
ItalyHead of the General and Legal Affairs Office at the Central Directorate for Immigration and Border Police
-
Tullio Del Sette>
2014–2016
ItalyHead of Cabinet Ministry of Defence
-
Claudio Manganiello>
-
Col. Paolo Emilio Recchia>
2014–2019
ItalyChief of Staff Air Force Operations Command
-
Cristina Ravaglia>
2012–2017
ItalyDirector DG Italians Citizens Abroad and Migration Policies
-
Luca Maestripieri>
2014–2019
ItalyVice Director DG for Development Cooperation
-
Manlio Scopigno>
2015–2017
ItalyEuropean External Action Service (EEAS)Chief of Staff at EUNAVFOR MED
-
Marco Peronaci>
2014–2018
ItalyDiplomatic Counseller to the Minister of Interior
2018–
The European CouncilEuropean External Action Service (EEAS)ItalyPermanent Representative to the PSC at the Permanent Representation of Italy to the European Union
-
Marina Sereni>
2019–2020
ItalyUndersecretary to Minister of Foreing Affairs Lugi Di Maio
-
Martha Elisabeth Anna Matscher>
2016–2020
ItalyHead of Office I – Planning of Immigration and Asylum Policies of the Central Directorate for Immigration and Asylum Policies of the Department for Civil Liberties and Immigration
-
Matteo Piantedosi>
2019–2020
ItalyChief of Cabinet of the Ministry of Interior
-
Maurizio Pitton>
2015–2017
ItalyCommander of the Ship San Giusto
-
Maurizio Riccò>
2015–2017
ItalyEuropean External Action Service (EEAS)Chief of Staff at EUNAVFOR MED
-
Riccardo Mattei>
2019 – en date unclear
ItalyAdvisor on Asylum to Office VII – Asylum and Immigration of the Cabinet
-
Michele Valensise>
2013–2016
ItalySecretary General of the Ministry of Foreign Affairs
-
Milena Rizzi>
2016–2017
ItalyAdvisor on Immigration to Office VII - Asylum and Immigration of the Cabinet
-
Nicola Molteni>
2018–2019
ItalyUndersecretary to the Ministry of Interior
-
Paolo Mari>
2019–2021
ItalyDG Italians Citizens Abroad and Migration Policies
-
Paolo Palminteri>
2014–2016
ItalyDG for Development Cooperation - Chief Office V - Migration policies, international protection, international adoptions
-
Raffaele Trombetta>
2016–2017
ItalyChief of Cabinet of Ministry of Foreign Affairs
-
Rafaella Vano>
-
Roberta Pinotti>
2014–2018
ItalyMinister of Defence
-
Roberto Volpi>
-
Rosetta Scotto Lavina>
2014–2018
ItalyHead of the Central Directorate for Immigration and Asylum Policies of the Department for Civil Liberties and Immigration
-
Sergio Liardo>
-
Sergio lo Presti>
2020–2021
ItalyChief Office II - Operations of the 3° Department of the General Command of the Italian Coast Guard - Plans and Operations
-
Sergio Pagano>
2019–2020
ItalyDeputy General Manager for Development Cooepration with vicarious functions/Central Director for the general and policy issues in development cooperation
-
Stefano Pontecorvo>
2014–2016
ItalyDiplomatic Advisor to Roberta Pinotti
-
Vittorio Pagotto>
2015–2017
ItalyChief Office II - Operations of the 3° Department of the General Command of the Italian Coast Guard - Plans and Operations
-
Vittorio Pisani>
at least 2015 – 2018
ItalyDirector of Immigration Service at the Central Directorate for Immigration and Border Police
-
Leonardo Carmenati>
2016–2018
ItalyDirector of the Italian Agency for Development Cooperation (AICS)
-
Carmelita Fortunata Ammendola>
2016–2018
ItalyHead of Office III – International Affairs of the Offices of Direct Collaboration to the Chief of the Department for Civil Liberties and Immigration
Related
- 1509Costituzione della Repubblica Italiana, English translation available at https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf article 95.
- 1510PAJNO, A., & TORCHIA, L. (2000). La riforma del governo: commento ai decreti legislativi n. 300 e n. 303 del 1999 sulla riorganizzazione della Presidenza del consiglio e dei ministeri. Bologna, Il Mulino.
- 1511COTTA, M., VERZICHELLI, L., Il Sistema Politico Italiano, Il Mulino, 2016
- 1512Ibid.
- 1513Italy’s Intelligence System for the Security of the Republic, Autorità Delegata, https://www.sicurezzanazionale.gov.it/sisr.nsf/chi-siamo/organizzazione/autorita-delegata.html, retrieved on 06/04/2020 [https://web.archive.org/web/20200416122709/https://www.sicurezzanazionale.gov.it/sisr.nsf/chi-siamo/organizzazione/autorita-delegata.html]
VII
France
AExecutive Summary
From 2014 onwards, France has had a particularly important role in the adoption of European migration policies. As a destination country, France was relatively close to the German and British positions. France’s stated objectives were to “protect European Union borders”, to “regulate irregular migration flows”, and to “help” the countries of first entry to manage the arrival of “migrants”.
France - in particular France's then Minister of the Interior, Bernard Cazeneuve - played a significant role in bringing Mare Nostrum to an end, and lobbying for a Frontex+ operation to replace it. Its vision of this replacement corresponds to the eventual Operation Triton in regard to the drastic scaling back of search and rescue capabilities and its emphasis on controlling “illegal” immigration and surveillance. Its preponderant role in the substitution of Mare Nostrum by Triton demonstrates France’s capability to nearly impose its position on its European partners on migration issues.
As a powerful naval nation, France substantially participated materially, financially, and by providing personnel in the implementation of operations Triton, Themis and Sophia. Under the leadership of Macron, France successfully pushed for the expansion of Frontex’s mandate and its evolution into a European border guard force.
After signing on the creation of Operation Sophia in 2015, France heavily contributed personnel, funds, intelligence, as well as naval and air assets to the operation, rendering itself implicated in the planning and execution of the criminal policies that unfolded thereafter.
Despite the climbing death tolls, France actively disavowed any search and rescue infrastructure and threatened the withdrawal of its contributions in alleged “fears” over “security threats,” consistently pushing a narrative that was criminalizing “migrants”. France was also able to use its influence to modify the mandate of the operation.
Despite documented evidence of France’s comprehensive knowledge of the situation of “migrants” in Libyan detention camps, as well as knowledge of the fact that Libya could not be considered a safe port for disembarkation, Foreign Minister Jean-Marc Ayrault approved the expanded Sophia mandate in order to train the Libyan coastguard alongside its colleagues in the Foreign Affairs Council. France’s initial concern - that this expansion would enhance human trafficking - further demonstrates its awareness of the Libyan coastguard’s ties to militias.
France ultimately accepted crimes committed against “migrants” in Libya in exchange for “stopping” migration across the Central Mediterranean. In 2019, France decided to provide six boats to the Libyan coastguard, NGOs instituted legal proceedings challenging this decision, and eventually the French government abandoned this plan. Finally, France also participated in the criminalization of NGOs by encouraging Italy to draft a Code of Conduct that resulted and restrained NGOs’ search and rescue activities.
France’s position on migration policies rarely changes and pursues similar objectives as Italy. The discursive ruptures that emerge in the public sphere rarely translate into radical policy changes. On the contrary, some of the most discreet French Interior ministers and political advisors have played the most crucial role in the adoption of the analyzed criminal policies.
BDecision-making Structures
The decision-making processes have varied little since 2013 and were shaped by the personality of the mandate holders. For example, during the mandate of François Hollande, his advisor for European affairs, Philippe Léglise-Costa, played such an important role that he was in parallel nominated as the head of the General Secretariat for European affairs,2008HERBET, M., “Cacophonie au sommet de l’État sur la gestion des affaires européennes,” Contexte, 19/01/2015, https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111303/https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html] before being nominated by Emmanuel Macron as France’s Permanent Representative in Brussels. Léglise-Costa had a technocratic profile and was considered a neutral agent that organized the deliberation between the different ministers under François Hollande. By contrast, his successor, Clément Beaune, who had served under Macron before being nominated as Secretaire d’Etat in charge of Europe, was provided with a specific political mandate, which corresponded to the more direct involvement of President Macron himself in the decision making related to European and migration issues.
In the normal course of events, various stakeholders are involved in the French decision-making structures vis-à-vis the EU, including relevant national ministries at the deliberative stage, the General Secretariat for European Affairs for coordination, and the Permanent Representation and Sherpas for the negotiation and discussion; all these institutions are under the direct and permanent authority and surveillance of the French President’s advisers and their homologues at the heads of government’s office.
When France is requested to adopt a position in one of the Councils, the proceedings start in Brussels, where the Permanent Representations receives the order of the day from the Commission, annotated by the six-month presidency of the Council of the EU.2009Interviewee I31 The French Permanent Representation comments on these texts before sending them to the General Secretariat for European Affairs.2010Interviewee I31 In parallel, the Permanent Representation comments both on the substance, by anticipating the French position, and in a timely manner forwards what the Presidency has chosen to amend in order to keep Paris in the loop of the evolutions of the European text.2011Interviewee I31 It further provides an opinion on the interest to maintain the French position if it diverges from that of other Member States, and suggests amendments otherwise.2012Interviewee I31
The Permanent Representation puts the text proposal or the order of the day in an email loop going through the General Secretariat for European Affairs.2013Interviewee I31 On that basis, it then asks the relevant ministries to contribute to the formulation of the French position.2014Interviewee I25 2015Interviewee I31
IMinistry of the Interior & Ministry of European and Foreign Affairs
The Ministry of the Interior and the Ministry for Europe and Foreign Affairs are usually the most relevant ministries on migration policies, with the Ministry of the Interior, the Minister and his cabinet nevertheless remaining the main political authorities on such issues.2016Interviewee I29
(a) Ministry of the Interior
For the period of interest to this Communication, the Ministers of the Interior under François Hollande were successively Manuel Valls (May 2012 – March 2014), Bernard Cazeneuve (April 2014 – December 2016), Bruno Le Roux (December 2016 – March 2017) and Matthias Fekl (March 2017 – May 2017); and under Emmanuel Macron, Gérard Collomb (May 2017 – October 2018), Christophe Castaner (October 2018 – July 2020) and Gérald Darmanin (July 2020 – September 2024)
On European matters of migration, the Ministry of the Interior relies on the work made by the Permanent Representation,2017Interviewee I27 and proposals are sent to the General Secretariat for European Affairs (SGAE), which in turn distributes it to the other relevant ministries.2018Interviewee I27 Within the Ministry, the Directorate General of Foreigners in France plays an important role.2019Interviewee I29 Between August 2015 and July 2020, it was headed by Pierre-Antoine Molina.
The Directorate notably handles the reception of asylum seekers as well as European funds for migration (Asylum Migration and Integration Fund, Internal Security Fund, and European Refugee Fund) and is an important interlocutor for the Minister and its political authorities as it drafts bills related to immigration.2020Interviewee I29 The Directorate does not participate in the discussions in Brussels but is nonetheless an important operational and law-making actor whose positions remain influential in the formation of the French positions in Brussels.2021Interviewee I29
The interest in border control and security increased following the terrorist attacks on French territory in 2015.2022Interviewee I27 The Ministry’s civil servants and political authorities perceive the “protection of the national territory” as their first priority, and they are seen as natural hardliners inside the administrative and political French technostructure.2023Interviewee I25
IIMinistry of Foreign Affairs and International Development /
Europe and Foreign Affairs
During the relevant period, the Ministers of Foreign Affairs and International Development under Hollande were successively Laurent Fabius (May 2012 – February 2016) and Jean-Marc Ayrault (February 2016 – May 2017); and under Macron, the Minister for Europe and Foreign Affairs has been Jean-Yves le Drian (May 2017 – May 2022), whilst the Secretariat d’Etat aux affaires européennes has been occupied by Marielle de Sarnez (May 2017 – June 2017), Nathalie Loiseau (June 2017 – March 2019), Amélie de Montchalin (March 2019 – July 2020) and Clément Beaune (July 2020 –).
The Foreign Affairs Minister becomes a significant actor on migration policies when working with third countries (for instance on readmission agreements) and for diplomatic concerns.2024Interviewee I27 2025Interviewee I29 Historically, it has adopted significantly more liberal positions than the Ministry of the Interior. For example, discussions under Sarkozy and Hollande’s mandates were then intensified by the willingness of the Ministry of the Interior to instrumentalize development aid.2026Interviewee I27 The Foreign Affairs Ministry did not agree with its scheme of making the amount of development aid conditional on third states fighting against illegal immigration.2027Interviewee I27 Currently, there is little divergence of viewpoint and positioning between the Exterior and the Interior Ministries on migration policies, a deviation from previous mandates.2028Interviewee I31
Recent events have affected the balance between both Ministries. Following the November 2015 terrorist attacks, security has become a high-level concern, allowing the Ministry of the Interior to gain more influence relative to the Foreign Affairs ministry.2029Interviewee I31
IIIGeneral Secretariat for European Affairs
The General SGAE is subordinated to the Prime Minister’s office and mainly responsible for inter-ministerial coordination on European issues.2030Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html]
The most recent Secretary-General within the 2013-2020 time period was Sandrine Gaudin, appointed on 10 November 2017 as the Prime Minister's European Advisor and on 20 November 2017 as the Secretary-General for European Affairs, holding a dual function. She was preceded, between 2012 and 2014, by Serge Guillon as both Advisor to the Prime Minister and Secretary-General for European Affairs, and Philippe Léglise-Costa, between 2014 and 2017 as both advisor to the President and Secretary-General for European Affairs.
The General Secretariat for European Affairs guarantees the coherence and unity of the French position within the European Union.2031Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html] It is responsible for reconciling the positions of various administrations on European matters.2032Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html] In the event of an interdepartmental disagreement on sensitive issues, the General Secretariat for European Affairs can request arbitration from the Prime Minister and his cabinet, or as a last resort to the Presidency’s immediate office.2033Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html]
The General Secretariat for European Affairs approves and transmits the Government’s instructions to the French Permanent Representation to the European Union.2034Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html] As a center of expertise on the EU, it also analyses the stakes of negotiations and the interests of France’s European partners to advise the government. 2035Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html] The General Secretariat for European Affairs is further responsible for the management of French Seconded National Experts, who are delegated to bring high-level expertise to European institutions and agencies.2036Secretariat General des Affaires europeennes, Missions, https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110529/https://sgae.gouv.fr/sites/SGAE/accueil/a-propos-du-sgae/missions.html]
The only matter outside of the scope of the General Secretariat for European Affairs’ inter-ministerial coordination is the Common Foreign and Security Policy (CFSP), a domain reserved to the Foreign Affairs Ministry.
French positions on migration issues have been fairly consistent for several years.2037Interviewee I31 The General Secretariat for European Affairs is undoubtedly of great influence on the positions taken by France. As the coordinator, it must strike the right balance between the French national interests and feasibility at the European level. Nevertheless, it theoretically does not work directly with the Sherpas.2038Interviewee I25
IVPermanent Representation of France to the European Union
The French Permanent Representation to the EU acts as a further interface between the French authorities and European Union institutions and is implicated in all its decision-making structures. Its mission is to promote and defend French positions within EU institutions and to inform French authorities as accurately as possible on the state of European affairs.2039Représentation permanente de la France auprès de l’Union européenne, Missions et objectifs, 02/09/2019, https://ue.delegfrance.org/missions-et-objectifs#Mission-promouvoir-et-defendre-les-positions-francaises-aupres-des-nbsp, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110815/https://ue.delegfrance.org/missions-et-objectifs]
In Brussels, it takes part in the development of all EU policies, including the so-called “Justice and Home Affairs” policies.2040Représentation permanente de la France auprès de l’Union européenne, Missions et objectifs, 02/09/2019, https://ue.delegfrance.org/missions-et-objectifs#Mission-promouvoir-et-defendre-les-positions-francaises-aupres-des-nbsp, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110815/https://ue.delegfrance.org/missions-et-objectifs] Special advisers are dedicated to Home Affairs, notably on border, asylum and immigration issues. A specific permanent representative is also dedicated to the Political and Security Committee. Currently, Mathilde Félix-Paganon assumes that position, preceded by Philippe Setton (2013 – 2016), Nicolas Suran (2016 – 2019), and Claire Raulin (2019 – 2023).
The French Permanent Representation both sits on the COREPER which prepares the Council of the European Union’s work and is further responsible for the supervision of the Council’s various working groups and committees made up by the relevant Member State civil servants.2041Représentation permanente de la France auprès de l’Union européenne, Missions et objectifs, 02/09/2019, https://ue.delegfrance.org/missions-et-objectifs#Mission-promouvoir-et-defendre-les-positions-francaises-aupres-des-nbsp, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110815/https://ue.delegfrance.org/missions-et-objectifs] Its current incumbent is Philippe Léglise-Costa, who was preceded by Philippe Etienne (2009 – 2014), whom became in 2017 the Diplomatic advisor and main Sherpa of Emmanuel Macron, and Pierre Sellal (2014 – 2017).
The French Permanent Representation acts proactively to assert French positions in the inter-representation dialogues.2042Interviewee I31 Such discussions most often take place informally. Before a Council session or any political discussion, members of the Permanent Representation will approach advisors of other Permanent Representations to be able to rally support and rely on a common position.2043Interviewee I31
Based on these discussions, the Permanent Representation can communicate an overview of upcoming decisions to the General Secretariat for European Affairs.2044Interviewee I31 France’s position may adjust accordingly. As most points are agreed upon when it comes to migration policies, only sensitive matters must be addressed.2045Interviewee I31
Every six weeks, the Strategic Committee on Immigration, Frontiers and Asylum holds a meeting.2046Interviewee I31 It has become customary to hold a dinner with five or six countries from North-Western Europe – destination countries for “migrants” – in order to coordinate their positions.2047Interviewee I31 The aim is to agree on the Strategic Committee on Immigration, Frontiers and Asylum’s entire agenda, deciding speaking order, preparing support, and setting other details.2048Interviewee I31 Such preparations make the Permanent Representation especially valuable to the “proper” representation of French interests and provide France with a strong position during sessions. As delegations usually only speak once, interventions can thus be well planned and crafted.2049Interviewee I31
Prior to these discussions in Brussels, experts reconvene to study specific matters, usually within the Council working groups.2050Interviewee I31 Technical meetings are an opportunity to discuss new topics, compared to political discussions which usually remain centered on the same issues.2051Interviewee I31 From there on, experts from the Ministry of the Interior and the Directorate General of Foreigners in France indicate which items must be reconsidered.2052Interviewee I31
Overall, the Permanent Representation has a much higher awareness of the power relations in Brussels than the government in the capital. The Permanent Representation also reports on existing and prospective support for France.2053Interviewee I31 It can offer compromises to Paris, enjoying some leeway to adapt its position to the context of European meetings and discussions.2054Interviewee I31 It is therefore a resolutely influential body, as it conveys, negotiates, and adapts French positions to the EU,2055Interviewee I31 and played a central role in the adoption of the criminal policies analyzed here.
VFrench Ambassadors to Libya
Like many other countries, France’s embassy in Libya moved to Tunis in July 2014. The French ambassadors to Libya were Antoine Sivan (2011-2016), Brigitte Curmi (2016 - September 2018), and Béatrice le Fraper du Hellen (September 2018 – 2022).
VISherpas
Within the European context, Sherpas are informal representatives of the President of the Republic and other heads of State or government who frequently meet to negotiate documents and issues prior to European Council sessions.2056Interviewee I22 They thus play an important role in the preparation of negotiations on all topics addressed at these sessions, including matters of migration and security.2057Interviewee I22
Philippe Léglise-Costa was François Hollande’s Sherpa, a member of the diplomatic pole, led by Paul-Jean Ortiz,2058“Un conseiller de Hollande secrétaire général des Affaires européennes,” Le Point, 09/04/2014, https://www.lepoint.fr/societe/un-conseiller-de-hollande-secretaire-general-des-affaires-europeennes-09-04-2014-1811462_23.php, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111055/https://www.lepoint.fr/societe/un-conseiller-de-hollande-secretaire-general-des-affaires-europeennes-09-04-2014-1811462_23.php] the President’s diplomatic councilor until January 2015.2059HERBET, M., “Cacophonie au sommet de l’État sur la gestion des affaires européennes,” Contexte, 19/01/2015, https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111303/https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html] Emmanuel Macron then named Philippe Etienne as Sherpa and diplomatic councilor from 2017 to 2019, followed by Emmanuel Bonne, whilst Clément Beaune occupied the function of advisor for European affairs.
In September 2017, Emmanuel Macron appointed Pascal Teixeira da Silva as ambassador for migration, allowing him to work closely with “migrant” countries of origin and transit to tackle the so-called “migrant crisis.”
VIIInternal involvement in EU migration policy
France has been highly involved in the elaboration of European Union migration policy. It has benefited from a very influential position within EU institutions as well as the high engagement of the President of the Republic himself on most urgent matters. Its contribution to the drafting and implementation of policies in this domain is thus crucial.
Similarly to Germany, the United Kingdom, the Netherlands, and Scandinavian countries, France is a destination country for “migrants” and shares similar stances on migration with them.2060Interviewee I25 Their overall position is to assist countries of first entry – Italy, Malta, and Greece – if they in turn provide “effective border management” to avoid the arrival of “migrants”. The principle of first-entry country responsibility has been consistently defended by those countries, as well as the financial support to those who carry as a consequence most of the “burden”. These countries are generally in favor of a new relocation scheme for “migrants” if it applies to all Member States, which the Central and Eastern European countries vehemently reject.2061Interviewee I31
The most influential actors on migration issues in the European Union during the 2010’s decade were Merkel and the French Presidents Hollande and Macron, even if their positions depended on domestic politics.2062Interviewee I28 Nothing was decided without them: one had to get either France or Germany’s support to reach an agreement.2063Interviewee I28 Evidence suggests that France’s role is one of the most influential countries.2064Interviewee I2 Particularly important issues automatically reached the top political level.2065Interviewee I7 Consequently, the French Presidents played a crucial role in the design and execution of the analyzed policies.2066Interviewee I7
CImplication in Criminal Policies
I2014 – (Terminating) Mare Nostrum
Around the time that Italy autonomously launched Mare Nostrum, France participated in the previously introduced Task Force Mediterranean which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.2067European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], pp. 1, 8. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation, the underlying rationale of the later EU’s 2nd policy of ‘pushback by proxy’;2068European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. identified EUBAM as a possible mechanism thereof;2069European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 2, 4. indirectly alluded to the potential training of the Libyan coastguard;2070European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 10. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”2071European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. They also make explicit reference to ensuring compliance with international human rights standards, and, crucially, “the principle of non-refoulement”, demonstrating the participants’ knowledge their suggested actions may constitute serious and grave violations of international law.2072European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 3.
The earliest communication in October 2013, published before any of the criminal policies were decided and implemented, mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,"2073European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing the EU and Member States’ full awareness of the conditions which they subsequently subjected thousands of “migrants” to through the policies they have orchestrated.
Amidst these developments, the decision to end Mare Nostrum was officially taken by the Italian government of Matteo Renzi and his Minister of the Interior, Angelino Alfano, in October 2014. Nevertheless, the desire to put an end to Mare Nostrum came both from Italy and from the other Member States which pushed very strongly in this direction.2074Interviewee I31
In late June 2014, “an informal G6 group [meeting] of Interior ministers from the six largest EU countries” was held.2075Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona] Jorge Fernandez Diaz (Spain) presided over the meeting which was attended by “Thomas De Maizière (Germany), Angelino Alfano (Italy), Theresa May (United Kingdom), Bernard Cazeneuve (France), [and a Polish official].2076Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona] “James Cole (the Deputy US Attorney General), Alejandro Mayorkas (US Deputy Secretary of Homeland Security), Cecilia Malmstrom (European Commissioner for Home Affairs), and Gil Arias (Executive Director of FRONTEX)” were also present as guests.2077Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona] Their discussions focused on the fight against “irregular” immigration in Europe.2078Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona] Italy suggested that Mare Nostrum could not continue indefinitely and argued that it should be Europeanized.2079Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona] A general fear was that Mare Nostrum cold nevertheless represent a “pull factor” for refugees.2080Government of the UK, Written statement to Parliament G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111448/https://www.gov.uk/government/speeches/g6-barcelona]
France developed a three-points doctrine for the management of the “migration crisis” and the “fight against organized illegal immigration in the Mediterranean.”2081Gouvernment, La lutte contre l’immigration clandestine organisée en Méditerranée, 03/09/2014, https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112214/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit] 2082Interviewee I26 This plan was based on the strengthening of the “control of migrant flows to the European Union, in particular by replacing ‘Mare nostrum’ with a ‘Frontex +’ borders surveillance operation.”2083Gouvernment, La lutte contre l’immigration clandestine organisée en Méditerranée, 03/09/2014, https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112214/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit] 2084Interviewee I26
Bernard Cazeneuve, French Minister of the Interior, was the initiator of this plan, supported by Prime Minister Manuel Valls and President Hollande.2085BAZIN, F., Rien ne s’est passé comme prévu: Les cinq années qui ont fait Macron, (Paris, Robert Laffont, 2017) in print, ISBN 978-2221159644 Both are said to have delegated migration issues to Cazeneuve, showing little interest for the European scale and not willing to take up responsibility for these issues.2086VINCENT, E., La Vague, (Paris, Équateurs documents, 2017) in print, ISBN 978-2849904831
For Cazeneuve, the fact that Italy took an initiative like Mare Nostrum was dangerous for the EU’s cohesion2087Interviewee I26 and the operation could no longer continue.2088BAZIN, F., Rien ne s’est passé comme prévu: Les cinq années qui ont fait Macron, (Paris, Robert Laffont, 2017) in print, ISBN 978-2221159644 In his view, the fact that the new operation was to be “supported by Frontex” showed that it would be “of a different nature” than Mare Nostrum. He also stated that “our wish, for maximum efficiency, is that it takes place as close as possible to the northern borders of the Mediterranean,”2089AFP, “‘Frontex plus’, nouvelle opération de contrôle des frontières en Méditerranée,” Midi Libre, 27/08/2014, https://www.midilibre.fr/2014/08/27/frontex-plus-nouvelle-operation-de-controle-des-frontieres-en-mediterranee,1042861.php, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113452/https://www.midilibre.fr/2014/08/27/frontex-plus-nouvelle-operation-de-controle-des-frontieres-en-mediterranee,1042861.php] 2090“Immigration : la France va aider l’Italie,” Le Figaro, 27/08/2014,https://www.lefigaro.fr/flash-actu/2014/08/27/97001-20140827FILWWW00407-immigration-la-france-va-aider-l-italie.php, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113617/https://www.lefigaro.fr/flash-actu/2014/08/27/97001-20140827FILWWW00407-immigration-la-france-va-aider-l-italie.php] foreshadowing a crucial part of the deadly replacement operation Triton.
Cazeneuve and his European counterparts were exerting pressure on Italy to rejoin the ranks and prioritize border control.2091ALAUX, J-P., “Calais vaut bien quelques requiem,” Gisti, March 2015, https://www.gisti.org/spip.php?article4903, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114247/https://www.gisti.org/spip.php?article4903] This was to be accomplished at the expense of search and rescue argued to “facilitate” survivors reaching Europe. Cazeneuve believed he was the reason for Italy’s change of heart and the subsequent end of Mare Nostrum leading its replacement by a Frontex + “border surveillance operation.”2092ALAUX, J-P., “Calais vaut bien quelques requiem,” Gisti, March 2015, https://www.gisti.org/spip.php?article4903, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114247/https://www.gisti.org/spip.php?article4903]
On 25 August 2014, Bernard Cazeneuve participated in a meeting with Laurent Fabius, Minister of Foreign Affairs and International Development, about the situation in the Mediterranean. Later in the day, he had a meeting with the French President.2093“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/082014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111927/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/]
The days thereafter, Bernard Cazeneuve traveled to Italy, Germany, the UK, and Spain,2094Ministère de l’intérieur, Agenda du ministre Semaine du 25 au 31 août 2014, 25/08/2014, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112032/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014] to meet with his counterparts and defend this “European plan on immigration”.2095Interviewee I26 2096Gouvernment, Compte rendu du Conseil des ministres du 3 septembre 2014, 03/09/2014, https://www.info.gouv.fr/conseil-des-ministres/compte-rendu-du-conseil-des-ministres-du-03-09-2014, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113007/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medi] He was accompanied by Luc Derepas, head of the Directorate General of Foreigners in France, Raphaël Sodini, his immigration and European affairs adviser, as well as Benjamin Ménard, his communications officer.2097Interviewee I26 2098Gouvernment, Compte rendu du Conseil des ministres du 3 septembre 2014, 03/09/2014, https://www.info.gouv.fr/conseil-des-ministres/compte-rendu-du-conseil-des-ministres-du-03-09-2014, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113007/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medi]
On 27 August 2014, Bernard Cazeneuve and Angelino Alfano met at the Viminale in Rome for a working meeting2099Ministère de l’intérieur, Agenda du ministre Semaine du 25 au 31 août 2014, 25/08/2014, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112032/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014] mainly devoted to the issue of “irregular immigration” in the Central Mediterranean, based on the plan presented by France and the strategic proposals of the Italian Presidency.2100Ministère de l’intérieur, Accord entre la France et l’Italie sur la question de l’immigration irrégulière en Méditerranée centrale, 28/08/2014, https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114545/https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale] The two ministers expressed their complete agreement to launch a “Frontex +” operation to ensure the control and surveillance of the EU’s external maritime borders. The implementation of this operation was to gradually replace the Mare Nostrum operation. Guidelines formulated were to be reported to the Council of the EU and European Council.2101Ministère de l’intérieur, Accord entre la France et l’Italie sur la question de l’immigration irrégulière en Méditerranée centrale, 28/08/2014, https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114545/https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Accord-entre-la-France-et-l-Italie-sur-la-question-de-l-immigration-irreguliere-en-Mediterranee-centrale]
At the time, Italy was not yet ready for a rapid exit from Mare Nostrum. While Italian Interior Minister Angelino Alfano aligned with the French position, the Italian Defense Minister remained skeptical.
Also, the German Chancellor Merkel and her Interior Minister de Maizière initially showed little enthusiasm for Cazeneuve’s plan and did not immediately support it, but they changed their position after the arrival of “migrants” to Bavaria.2102VINCENT, E., La Vague, (Paris, Équateurs documents, 2017) in print, ISBN 978-2849904831
On 29 August 2014, Theresa May, the then UK Home Secretary, agreed to supporting France's proposals to end Mare Nostrum and strengthen Frontex operations near the European coasts of the Mediterranean.2103Ministère de l’intérieur, Entretien entre Bernard Cazeneuve, Ministre de l’Intérieur, et Theresa May, Ministre de l’Intérieur du Royaume-Uni, 30/08/2014, https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Entretien-entre-Bernard-Cazeneuve-et-Theresa-May, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112823/https://www.interieur.gouv.fr/Archives/Archives-des-communiques-de-presse/2014-Communiques/Entretien-entre-Bernard-Cazeneuve-et-Theresa-May]
On 30 August 2014, during a meeting in Barcelona, Jorge Fernández Díaz and Bernard Cazeneuve, ministers of Interior of Spain and France respectively, pushed for the quick implementation of the European border surveillance operation “Frontex Plus” that would gradually replace Mare Nostrum.2104“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/082014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111927/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/] Díaz hence also agreed to support the launch of the new Frontex + European surveillance operation as soon as possible.2105“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/082014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111927/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/] On the same day, the German Minister of Interior, Thomas de Maizière, also agreed to the launch of Frontex +.2106“Paris et Berlin insistent sur une nécessaire meilleure répartition des réfugiés,” SudInfo, 30/08/2014, https://www.sudinfo.be/art/1091306/article/2014-08-30/paris-et-berlin-insistent-sur-une-necessaire-meilleure-repartition-des-refugies, retrieved on 17/09/2020 [https://web.archive.org/web/20200917115254/https://www.sudinfo.be/art/1091306/article/2014-08-30/paris-et-berlin-insistent-sur-une-necessaire-meilleure-repartition-des-refugies] 2107Federal Ministry of the Interior, Building and Community, Improving the refugee situation in the Mediterranean region, 09/09/2014, https://www.bmi.bund.de/SharedDocs/kurzmeldungen/EN/2014/09/de-maizi%C3%A8re-holds-talks-with-his-french-and-italian-counterparts.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917115532/https://www.bmi.bund.de/SharedDocs/kurzmeldungen/EN/2014/09/de-maizi%C3%A8re-holds-talks-with-his-french-and-italian-counterparts.html]
Cazeneuve concluded his tour of Europe in Brussels, where he presented this plan to “strengthen” the Union’s external borders and contain departures from “source countries”. He stated that “[they could] put in place the most generous humanitarian devices; if the flows are not managed upstream, all this will be useless.”2108TASSEL, F., “Migrants noyés en Méditerranée : Cazeneuve veut un sursaut européen,” Libération, 01/09/2014, https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114003/https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627]
On 3 September 2014, during a French Council of Ministers, Bernard Cazeneuve stated that following approval by his counterparts from Germany, the United Kingdom, Italy and Spain, he met the European Commissioner for Home Affairs to discuss the prospects for action at European level.2109Gouvernment, La lutte contre l’immigration clandestine organisée en Méditerranée, 03/09/2014, https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112214/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit] 2110Interviewee I26 The European Commission joined the Interior Ministers and pushed for the matter’s rapid addressing.2111Gouvernment, La lutte contre l’immigration clandestine organisée en Méditerranée, 03/09/2014, https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit, retrieved on 17/09/2020 [https://web.archive.org/web/20200917112214/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit] 2112Interviewee I26
On 11 September 2014, the British (Theresa May), Spanish (Jorge Fernandez Diaz), German (Thomas de Maizière), Polish (Bartlomiej Sienkiewicz), and French Interior ministers, sent a letter, written by Cazeneuve, to Cecilia Malmström, European Commissioner for Home affairs, summarizing the French plan for migration policy, asking for the replacement of Mare Nostrum by Triton.2113European Commission, Lettre conjointe de M. Cazeneuve à Mme Malmström, 11/09/2014, https://ec.europa.eu/carol/?fuseaction=download&documentId=090166e599a59e6b&title=2014_09%2011%20-%20lettre%20conjointe%20M.%20Cazeneuve%20%C3%A0%20Mme%20Malmstrom.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917120502/https://webcache.googleusercontent.com/search?q=cache%3ACWOyllh1NwcJ%3Aec.europa.eu%2Fcarol%2F%3Ffuseaction%3Ddownload%26documentId%3D090166e599a59e6b%26title%3D2014_09%252011%2520-%2520lettre%2520conjointe%2520M.%2520Cazeneuve%2520%25C3%25A0%2520Mme%2520Malmstrom.pdf+&cd=1&hl=fr&ct=clnk&gl=fr]
On 23 October 2014, Bernard Cazeneuve stated:
“We have made Europe move. I got what I asked for: an end to the Mare Nostrum operation, which unfortunately led to more deaths than rescues, to replace it with an operation to control the Union's external borders as closely as possible from the European coasts. This is Operation Triton, which will start in early November. The French proposals made this summer to our partners are now the roadmap for the European Union.”2114“Migrants : Bernard Cazeneuve déploie 100 hommes de plus à Calais,” La Voix du Nord, 23/10/2014, https://www.lavoixdunord.fr/art/region/migrants-bernard-cazeneuve-deploie-100-hommes-de-plus-a-ia0b0n2451952, retrieved on 17/09/2020 [https://web.archive.org/web/20200917120651/https://www.lavoixdunord.fr/art/region/migrants-bernard-cazeneuve-deploie-100-hommes-de-plus-a-ia0b0n2451952]
Cazeneuve said he was determined to “do the job seriously and not to surf on the emotion,” annoyed by “a left posture, which lacks maturity and who does not reason in terms of efficiency.”2115TASSEL, F., “Migrants noyés en Méditerranée : Cazeneuve veut un sursaut européen,” Libération, 01/09/2014, https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114003/https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627] He further clarified in an interview that:
“Operation Mare Nostrum was deployed by the Italians near the Libyan coast, which unfortunately led the criminal networks of smugglers to put more and more migrants on increasingly dangerous boats. From now on, the Triton operation, by placing its boats as close as possible to the European coasts, will allow real border control while allowing rescues. […] Europe is reacting, and France is not for nothing: we have taken the initiative to propose this plan which is now the EU's roadmap.”2116Vie Publique, Interview de M. Bernard Cazeneuve, ministre de l’intérieur, à “20 Minutes” publié le 6 novembre 2014, sur la coopération européenne en matière de lutte contre le terrorisme et de maîtrise des flux migratoires en Méditerranée, 06/11/2014, https://www.vie-publique.fr/discours/192941-interview-de-m-bernard-cazeneuve-ministre-de-linterieur-20-minute, retrieved on 17/09/2020 [https://web.archive.org/web/20200917120929/https://www.vie-publique.fr/discours/192941-interview-de-m-bernard-cazeneuve-ministre-de-linterieur-20-minute]
Bernard Cazeneuve also wanted an essential increase in power of Frontex and proposed to “contain departures from the southern shore of the Mediterranean.”2117CORNEVIN, C., “Immigration : Cazeneuve défend son plan,” Le Figaro, 29/08/2014, https://www.lefigaro.fr/actualite-france/2014/08/29/01016-20140829ARTFIG00360-immigration-cazeneuve-defend-son-plan.php, retrieved 17/09/2020 [https://web.archive.org/web/20200917121134/https://www.lefigaro.fr/actualite-france/2014/08/29/01016-20140829ARTFIG00360-immigration-cazeneuve-defend-son-plan.php] Cazeneuve thus deployed the false narrative of the “pull-effect” of rescue operations to promote his proposal of a replacement operation that was explicitly aimed at preventing “migrants” from reaching European shores and which inherently antagonized SAR.
According to one of his advisers, Cazeneuve agreed with all of his European partners that it was time “to restore European logic” in the management of the migration crisis because of “Mare Nostrum’s failure”.2118TASSEL, F., “Migrants noyés en Méditerranée : Cazeneuve veut un sursaut européen,” Libération, 01/09/2014, https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114003/https://www.liberation.fr/societe/2014/09/01/migrants-noyes-en-mediterranee-cazeneuve-veut-un-sursaut-europeen_1091627] On 12 March 2015, Cazeneuve indicated that he presented a non-paper in August 2014 to his European counterparts which fueled the debate of the Council.2119Représentation permanente de la France auprès de l’Union européenne, Déclarations de M. Cazeneuve, Ministre de l’Intérieur, en marge du Conseil Justice-Affaires intérieures (Bruxelles, 12 mars 2015), 23/02/2019, https://ue.delegfrance.org/terrorisme-migrations-conseil, retrieved on 17/09/2020 [https://web.archive.org/web/20200917121258/https://ue.delegfrance.org/terrorisme-migrations-conseil]
European opposition to the continuing of Mare Nostrum was unanimous.2120Interviewee I38 But it was France, and specifically Bernard Cazeneuve, given the little involvement of the French Prime Minister and President, who mainly pushed for Mare Nostrum to end. France did not want to Europeanize Mare Nostrum in itself. It wanted to establish Triton, which had neither the same objectives nor the same means as Mare Nostrum, essentially and intentionally withdrawing critical life-saving infrastructure from the Central Mediterranean.2121Interviewee I27
II2015 - Triton
Following Cazeneuve’s campaign to end Mare Nostrum, the Member States had to agree on a European action. Crucially, no Member State wanted to launch a European search and rescue operation, as saving lives and subsequent disembarkation in Europe was never a priority.
According to an EU official, “saving people is good but it is not the objective”. Instead, the objective is to stop “migrants” from attempting to cross.2122Interviewee I19 Almost all Member States, including France, thought that Mare Nostrum created a pull factor, and even if a Mare Nostrum-type rescue operation could have saved more individuals, it would not have been a long-term solution.2123Interviewee I30
The political and electoral aspects of immigration were also important considerations, especially in France, which dissuade political figures, ministers and the President from assuming a more humanistic perspective.2124Interviewee I19 2125Interviewee I27
On 9 and 10 October 2014, a Justice and Home Affairs council was chaired by Angelino Alfano, Minister of the Interior, and Andrea Orlando, Minister of Justice of Italy.2126Council of the European Union, PRESS RELEASE 3336th Council meeting Justice and Home Affairs, 09-10/10/2014, https://data.consilium.europa.eu/doc/document/ST-14044-2014-INIT/en/pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917121600/https://www.consilium.europa.eu/en/meetings/jha/2014/10/09-10/] The Council welcomed the initiation of Triton and lauded its strengthening of border patrol along the Italian coast.2127Council of the European Union, Justice and Home Affairs Council, 9-10 October 2014, 24/10/2017, https://www.consilium.europa.eu/en/meetings/jha/2014/10/09-10/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917121600/https://www.consilium.europa.eu/en/meetings/jha/2014/10/09-10/] At this council, the French position was clear: the Italian operation should be discontinued, and the new European operation should not prioritize rescue.2128Interviewee I26 Bernard Cazeneuve affirmed that:
“we wish to replace the operation Mare Nostrum by an operation piloted by Frontex, as close as possible to the coasts of the European Union, to ensure that we have at the same time surveillance of the external borders of the European Union, and at the same time, these forces will be able to carry out rescue operations.”2129Vie Publique, Interview de M. Bernard Cazeneuve, ministre de l’intérieur, à Radio France Internationale le 9 octobre 2014, sur la lutte contre la promotion du terrorisme ou du djihadisme sur Internet au niveau européen, le renforcement du système d’information Schengen et la coopération européenne en matière d’immigration, 09/10/2014, https://www.vie-publique.fr/discours/192526-interview-de-m-bernard-cazeneuve-ministre-de-linterieur-radio-fran, retrieved on 17/09/2020 [https://web.archive.org/web/20200917121758/https://www.vie-publique.fr/discours/192526-interview-de-m-bernard-cazeneuve-ministre-de-linterieur-radio-fran]
Frontex operation Triton was launched at the behest of Italy on 1 November 2014.2130Interviewee I13 2131Interviewee I31 2132European Commission, Frontex Joint Operation ‘Triton’ – Concerted Efforts for managing migrator flows in the Central Mediterranean, 31/10/2014, https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609, retrieved on 17/09/2020 [https://web.archive.org/web/20200917121939/https://ec.europa.eu/commission/presscorner/detail/de/MEMO_14_609]The specificities of the operation, including its operational area and the necessary assets, were agreed upon between Frontex and Italy, as the host state, based on its request for assistance. The French Executive Director of Frontex, Fabrice Leggeri, prepared Triton with the Italian authorities.2133Interviewee I31
Frontex was dependent on the will of Member States other than Italy to provide it with resources. Amongst EU countries, France has been particularly generous.2134Interviewee I34 France, Spain, Finland, Portugal, Iceland, the Netherlands, Lithuania, and Malta announced they had resources available for Frontex.2135AFP, “Immigration: Huit pays dont la France s’engagent dans l’opération Triton,” 20 Minutes, 14/10/2014, https://www.20minutes.fr/monde/1460579-20141014-immigration-huit-pays-dont-france-engagent-operation-triton, retrieved 17/09/2020 [https://web.archive.org/web/20200917122220/https://www.20minutes.fr/monde/1460579-20141014-immigration-huit-pays-dont-france-engagent-operation-triton]
France therefore fully participated in this mission, regularly deploying the Mediterranean French Navy or Maritime Gendarmerie vessels and personnel.2136DE REBOUL, G., “Themis, la nouvelle opération de frontex en méditerranée,” Les Yeux du Monde, 23/04/2018, https://les-yeux-du-monde.fr/actualite/actualite-analysee/34130-themis-nouvelle-operation-de-frontex-mediterranee, retrieved 17/09/2020 [https://web.archive.org/web/20200917122407/https://les-yeux-du-monde.fr/actualite/actualite-analysee/34130-themis-nouvelle-operation-de-frontex-mediterranee] For example, on 2 September 2015, the high seas patrol vessel (PHM) Commandant Bouan of the French Navy integrated the naval and air system of Operation Triton.2137Ministère des armées, Frontex : Le PHM « Commandant Bouan » l’opération « Triton », 03/09/2015, https://archives.defense.gouv.fr/operations/ponctuelles/autres-operations/operations-ponctuelles/frontex-le-phm-commandant-bouan-l-operation-triton.html, retrieved 23/04/2025 [https://web.archive.org/web/20250423151442/https://archives.defense.gouv.fr/operations/ponctuelles/autres-operations/operations-ponctuelles/frontex-le-phm-commandant-bouan-l-operation-triton.html]
After the shipwrecks of April 2015 (“the black week of April”), arguably a direct result of the substitution of Mare Nostrum with Triton, Merkel initiated a meeting of European heads of state aimed at considerably increasing the resources allocated to Triton.2138Interviewee I33 Triton’s mandate was accordingly expanded,2139Assemblée parlementaire de l’OTAN, La Protection civile dans le grand Nord et en Méditerranée, 18/11/2018, https://www.nato-pa.int/download-file?filename=sites/default/files/2018-12/165%20CDSDG%2018%20F%20r%c3%a9v%201%20fin%20-%20PROTECTION%20CIVILE%20GRAND%20NORD%20-RAPPORT%20CORDY_0.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917122703/https://www.nato-pa.int/download-file?filename=sites%2Fdefault%2Ffiles%2F2018-12%2F165+CDSDG+18+F+r%C3%A9v+1+fin+-+PROTECTION+CIVILE+GRAND+NORD+-RAPPORT+CORDY_0.pdf], p. 13. albeit not to the extent that resembled Mare Nostrum or one that could bring a policy change.2140Assemblée parlementaire de l’OTAN, La Protection civile dans le grand Nord et en Méditerranée, 18/11/2018, https://www.nato-pa.int/download-file?filename=sites/default/files/2018-12/165%20CDSDG%2018%20F%20r%c3%a9v%201%20fin%20-%20PROTECTION%20CIVILE%20GRAND%20NORD%20-RAPPORT%20CORDY_0.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917122703/https://www.nato-pa.int/download-file?filename=sites%2Fdefault%2Ffiles%2F2018-12%2F165+CDSDG+18+F+r%C3%A9v+1+fin+-+PROTECTION+CIVILE+GRAND+NORD+-RAPPORT+CORDY_0.pdf], p. 13.
On 1 February 2018, Frontex replaced Joint Operation Triton with Operation Themis, again to respond to a request from Italy for a more equitable burden-sharing.2141Assemblée parlementaire de l’OTAN, La Protection civile dans le grand Nord et en Méditerranée, 18/11/2018, https://www.nato-pa.int/download-file?filename=sites/default/files/2018-12/165%20CDSDG%2018%20F%20r%c3%a9v%201%20fin%20-%20PROTECTION%20CIVILE%20GRAND%20NORD%20-RAPPORT%20CORDY_0.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917122703/https://www.nato-pa.int/download-file?filename=sites%2Fdefault%2Ffiles%2F2018-12%2F165+CDSDG+18+F+r%C3%A9v+1+fin+-+PROTECTION+CIVILE+GRAND+NORD+-RAPPORT+CORDY_0.pdf], p. 13. Member states reportedly did not have much control over these developments which were decided within Frontex’s management board.2142Interviewee I252143Interviewee I32 France in particular did not feel involved in the evolution of the operation.2144Interviewee I25 2145Interviewee I32 A French government source noted that Member States failed to sufficiently share information on the monitoring of the operational situation of Triton.2146Interviewee I31
France, and Interior Minister Cazeneuve in particular, extensively lobbied for the deadly shift from Mare Nostrum to Operation Triton. More broadly, France and specifically Cazeneuve significantly promoted the narrative of SAR as a pull-factor that poses a threat to the EU’s border “security”.
Consequently, France and Cazeneuve were heavily involved in the withdrawal of critical search and rescue services from the critical SAR zone in the Central Mediterranean. France directly supported these policies, politically and materially, through the provision of funding, equipment, and personnel.
III2016-2019 – Operation Sophia
On 20 April 2015, a Foreign Affairs and Justice and Home Affairs Council about migration took place in Luxemburg. France was represented by its Minister of Foreign Affairs, Laurent Fabius, and Minister of the Interior, Bernard Cazeneuve. At the Council, Ministers agreed to strengthen “the fight against human trafficking, […] the saving of lives at sea as well as enhance support for front-line countries.”2147Council of the European Union, Justice and Home Affairs Council, 20 April 2015, 27/03/2018, https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917123300/https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/] France has since contributed significant means and resources to what became Operation Sophia.
On 18 May 2015, as instructed by the European Council in April 2015,2148Council of the European Union, Outcome of the Council Meeting, 18/05//2015, https://www.consilium.europa.eu/media/23345/st08966en15.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917123450/https://www.consilium.europa.eu/media/23345/st08966en15.pdf] the Foreign Affairs Council established a European military operation, EUNAVFOR Med, to supposedly fight the activities of smugglers and human traffickers in the region.2149Council of the European Union, Timeline - response to migratory pressures, 28/04/2020, https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917123634/https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/]
As elaborated in previous sections, Operation Sophia was tasked with destroying boats used by “migrants,” leading them to resort to less safe vessels, further aggravating the risk of crossing the Central Mediterranean route.2150TRAVIS, A., “EU-UK naval mission on people-smuggling led to more deaths, report says,” the Guardian, 11/07/2017, https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says, retrieved on 19/06/2024 [https://web.archive.org/web/20240813125701/https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says]
Sophia’s staff always included French officials, including in its headquarters.2151EUNAVFOR MED Operation Sophia, Italian Minister of Defense Roberta Pinotti visits Force Command Headquarters onboard ITS Cavour, 22/07/2015, https://www.operationsophia.eu/italian-minister-of-defense-roberta-pinotti-visits-force-command-headquarters-onboard-its-cavour/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125511/https://www.operationsophia.eu/italian-minister-of-defense-roberta-pinotti-visits-force-command-headquarters-onboard-its-cavour/] On 30 June 2015, for example, French Rear Admiral Hervé Bléjean joined the Operation Headquarters of EUNAVFOR Med in Rome, Italy.2152EUNAVFOR MED Operation Sophia, The Deputy Commander join the Operation Headquarters, 30/06/2015, https://www.operationsophia.eu/the-deputy-commander-join-the-operation-headquarters/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917123936/https://www.operationsophia.eu/the-deputy-commander-join-the-operation-headquarters/]
On 3 July 2015, a French Falcon 50 maritime surveillance aircraft completed a fly-over of the Mediterranean for the first operational contribution of France. This mission was part of the first phase of the operation, centered around the monitoring and collecting of information on “trafficking” networks in the South section of the central Mediterranean.2153EUNAVFOR MED Operation Sophia, EUNAVFOR MED: first mission for MPA Falcon 50, 03/07/2015, https://www.operationsophia.eu/eunavfor-med-first-mission-for-mpa-falcon-50/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917124101/https://www.operationsophia.eu/eunavfor-med-first-mission-for-mpa-falcon-50/]
On 2 October 2015, the French frigate Courbet joined the operation along with a Panther helicopter from the French Naval Aviation.2154EUNAVFOR MED Operation Sophia, EUNAVFOR MED welcomes French Frigate FS Courbet, 03/10/2015, https://www.operationsophia.eu/eunavfor-med-welcomes-french-frigate-fs-courbet/, retrieved 17/09/2020 [https://web.archive.org/web/20200917124233/https://www.operationsophia.eu/eunavfor-med-welcomes-french-frigate-fs-courbet/] On 7 October, FS Courbet’s first day operating, the 176 crew members contributed to the rescue of 80 individuals. Simultaneously, the helicopter undertook 19 missions to spot boats and to identify any possible illegal activity in the area.2155EUNAVFORMED Operation Sophia, HMS Richmond and FS Courbet complete their operation Sophia tasking, 23/11/2015, https://www.operationsophia.eu/hms-richmond-and-fs-courbet-complete-their-operation-sophia-tasking/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917124412/https://www.operationsophia.eu/hms-richmond-and-fs-courbet-complete-their-operation-sophia-tasking/] On 12 November 2015, it was also involved in the rescue of more than 100 “migrants”.2156EUNAVFOR MED Operation Sophia, ESPS CANARIAS, together with others Operation SOPHIA’s assets rescues migrants in danger, 12/11/2015, https://www.operationsophia.eu/esps-canarias-together-with-others-operation-sophias-assets-rescues-migrants-in-danger/, retrieved on 17/09//2020 [https://web.archive.org/web/20200917124517/https://www.operationsophia.eu/esps-canarias-together-with-others-operation-sophias-assets-rescues-migrants-in-danger/]
In early 2016, France and the UK, although very committed to Sophia, began expressing that they could no longer provide such extensive means to a program operating search and rescue at sea, as they were afraid that smuggler networks may be used to transport terrorists to the EU.2157Interviewee I34 This represents a continuation of France’s push to systematically link search and rescue to “security threats”, and illustrates its consistent push to abandon search and rescue efforts in favor of criminalizing “migrants” and ceasing all crossings, regardless of the human cost.
On 26 February 2016, Rear Admiral Gilles Humeau replaced Rear Admiral Hervé Bléjean as Deputy Operation Commander of Sophia, following a handover in the Rome Headquarters of EUNAVFOR Med.2158EUNAVFOR MED Operation Sophia, New Deputy Operation Commander for EUNAVFOR MED operation Sophia, 26/02/2016, https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia-2/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917124621/https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia-2/] On 18 January 2017, Rear Admiral Lefebvre joined the headquarters.2159EUNAVFOR MED Operation Sophia, New Deputy Operation Commander for EUNAVFOR MED operation Sophia, 01/07/2017, https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia/,retrieved on 17/09/2020 [https://web.archive.org/web/20200917124759/https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia/]
Accordingly, certain Member States sought to further remilitarize Operation Sophia.2160Interviewee I34 In June 2016, a Security Council resolution was passed on the control of the arms embargo on Libya on the high seas, at the request of France and the UK. François Hollande stated that:
“France hopes that we can go as far as possible in the deployment of this operation because that is the condition for the success of what we want to do for Libya, that is to say, restore as much as it is possible authority, make the government of national unity take all the components and have effective control over migration.”2161Représentation permanente de la France auprès de l’Union européenne, Sommet de Malte-“Nous devons avoir une conception européenne de notre avenir”, 23/02/2019, https://ue.delegfrance.org/sommet-de-malte-nous-devons-avoir, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125912/https://ue.delegfrance.org/sommet-de-malte-nous-devons-avoir]
In France’s view, operation Sophia had not only to fight the traffickers but also fight the entry of weapons in Libya. It further insisted that this second task had the UNSC Resolution as legal basis.2162Interviewee I2 General François Lecointre said about Operation Sophia that it had:
“almost stopped the flow of migrants from Libya. From this point of view, Operation Sophia [and Italy’s bilateral action] was effective [...] The Italians took the problem into account and Europeanized it with Operation Sophia. We have reached a very high level of efficiency: illegal immigration today through Libya and the central Mediterranean has been globally stopped.”2163Sénat, Compte renduCommission dela défense nationale et des forces armées—Audition du général François Lecointre, chef d’état–major des armées, 11/06/2019, https://www.defense.gouv.fr/content/download/563790/9728994/file/20190611_CEMA_Audition-ASSNAT.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917130044/https://www.defense.gouv.fr/content/download/563790/9728994/file/20190611_CEMA_Audition-ASSNAT.pdf], p. 31.
On 20 June 2016, the Council of the EU extended Sophia’s mandate until 27 July 2017 and strengthened it by adding two supporting tasks: training of the Libyan coastguards and the Libyan navy, and contributing to information exchange and to the enforcement, on the high seas, of the United Nations arms embargo.2164Sénat, Position de la France face à la vague migratoire, 13/10/2016, https://www.senat.fr/questions/base/2016/qSEQ160822995.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125712/https://www.senat.fr/questions/base/2016/qSEQ160822995.html]
Sophia was a way of showing that the European Union had the military means to stem the ‘crisis’ and the high migratory ‘pressure’. The enforcement of the arms embargo was included as a second task. Search and rescue operations had still not been explicitly included, demonstrating that the primary aim was the prevention of “migrants” from crossing to Europe, embedded within a discourse that was committed to securitizing migration issues.2165Interviewee I31
It appears that France was the second contributor to intelligence for Sophia. On 13 October 2016, the Minister of Defense Jean-Yves Le Drian affirmed before the Senate that France had taken an active part in operation Sophia since its launch.2166Sénat, Position de la France face à la vague migratoire, 13/10/2016, https://www.senat.fr/questions/base/2016/qSEQ160822995.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125712/https://www.senat.fr/questions/base/2016/qSEQ160822995.html] A dozen French soldiers had been integrated into the operational and tactical staffs of the operation. Satellite intelligence resources were recurrently mobilized to meet the needs for images, aerial photographs, intelligence summaries and raw information.2167Sénat, Position de la France face à la vague migratoire, 13/10/2016, https://www.senat.fr/questions/base/2016/qSEQ160822995.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125712/https://www.senat.fr/questions/base/2016/qSEQ160822995.html]
From 9 February to 10 March 2017, the French frigate Commandant Bouan was commissioned to Sophia. It was tasked with collecting information about navigation paths along with various traffics to and from Libya. France provided Sophia with its sister ship, FS Commandant Birot, tasked with patrolling Libyan coasts and preventing arms trafficking.2168EUNAVFOR MED Operation Sophia, French light frigate “Commandant Bouan” ends her mandate in Sophia and hands over to her sister-ship, 13/003/2017, https://www.operationsophia.eu/french-light-frigate-commandant-bouan-ends-her-mandate-in-sophia-and-hands-over-to-her-sister-ship/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917124910/https://www.operationsophia.eu/french-light-frigate-commandant-bouan-ends-her-mandate-in-sophia-and-hands-over-to-her-sister-ship/]
From 1 May 2017 to the end of June 2017, Commandant Blaison was deployed in the Mediterranean for Sophia.2169EUNAVFOR MED Operation Sophia, One month of deployment in EUNAVFOR MED Op. Sophia for Commandant BLAISON, 07/06/2017, https://www.operationsophia.eu/one-month-of-deployment-in-eunavfor-med-op-sophia-for-commandant-blaison/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125017/https://www.operationsophia.eu/one-month-of-deployment-in-eunavfor-med-op-sophia-for-commandant-blaison/] On 23 June 2017, the vessel was replaced by the Offshore Patrol Vessel L’Adroit.2170EUNAVFOR MED Operation Sophia, The “Commandant Blaison” crosses the finish line in Op. SOPHIA deployment and passes the baton to “L’Adroit”, 25/06/2017, https://www.operationsophia.eu/display-a-pdf-version-of-this-page-share-the-commandant-blaison-crosses-the-finish-line-in-op-sophia-deployment-and-passes-the-baton-to-ladroit/,retrieved on 17/09/2020 [https://web.archive.org/web/20200917125143/https://www.operationsophia.eu/display-a-pdf-version-of-this-page-share-the-commandant-blaison-crosses-the-finish-line-in-op-sophia-deployment-and-passes-the-baton-to-ladroit/] On 30 July 2017, French RA Lefebvre was replaced as Deputy Operation Commander by RA Gilles Boidevezi.2171EUNAVFOR MED Operation Sophia, New Deputy Operation Commander for EUNAVFOR MED operation Sophia, 01/07/2017, https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia/,retrieved on 17/09/2020 [https://web.archive.org/web/20200917124759/https://www.operationsophia.eu/new-deputy-operation-commander-for-eunavfor-med-operation-sophia/]
Launched on 1 April 2020 following the termination of Operation Sophia, the main objective of EUNAVFOR MED IRINI was to enforce the UNSC arms embargo on Libya. France continued its support. On 7 May 2020, for example, Florence Parly, then-Minister of Defense, declared that since 4 May 2020, the frigate Jean Bart had been part of EUNAVFOR MED IRINI.2172Représentation permanente de la France auprès de l’Union européenne, Les forces armées françaises s’engagent dans l’opération de l’UE EUNAVFOR MED IRINI en Méditerranée, 07/05/2020, https://ue.delegfrance.org/les-forces-armees-francaises-s, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125404/https://ue.delegfrance.org/les-forces-armees-francaises-s]
IV2017 – Training and funding of the Libyan Coastguard
From 2015 to 2017, Sacha Bailly from the French Navy was present at ShadeMed conferences in which the “[dire] situation faced by migrants in Libyan detention centres and the abuse they suffer” as well as the fact that Libya was not a safe country to disembark migrants was repeatedly reported and discussed.2173EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [Annex 8], p. 4.2174EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf], pp. 15-17.
During the Valletta Summit in November 2015, the cooperation with African countries was concretized and the EU Emergency Trust Fund established the main financial through which the Libyan Coastguard will be funded. France, represented by François Hollande, pledged to contribute 3 million euros to the fund.2175GRECH, H., “Live commentary: Valletta summit sounds warning on Schengen, provides aid to Africa,” Times of Malta, 12/11/2015, https://timesofmalta.com/article/live-commentary-valletta-summit-the-final-day.591857, retrieved on 09/08/2024 [https://web.archive.org/web/20240813105045/https://timesofmalta.com/article/live-commentary-valletta-summit-the-final-day.591857]
On 23 May 2016, the French Minister of Foreign Affairs, Jean-Marc Ayrault, participated in the EU Foreign Affairs Council meeting.2176Représentation permanente de la France auprès de l’Union européenne, Libye : Accord pour impliquer l’opération navale Sophia dans le contrôle de l’embargo sur les armes, 23/02/2019, https://ue.delegfrance.org/libye-accord-pour-impliquer-l, retrieved on 17/09/2020 [https://web.archive.org/web/20200917130155/https://ue.delegfrance.org/libye-accord-pour-impliquer-l] As mentioned above, the Council moved “to extend the mandate of EUNAVFOR MED Operation Sophia by one year and, while retaining the focus on its core mandate, to add two further supporting tasks,” including “the capacity building and training of, and information sharing with, the Libyan coastguard and Navy, based on a request by the legitimate Libyan authorities taking into account the need for Libyan ownership.”2177Council of the European Union, Council conclusions on EUNAVFOR MED operation Sophia, 23/05/2016,https://www.consilium.europa.eu/fr/press/press-releases/2016/05/23/fac-eunavfor-sophia/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917130336/https://www.consilium.europa.eu/fr/press/press-releases/2016/05/23/fac-eunavfor-sophia/] 2178Council of the European Union, Council Decision (CFSP) 2017/1385 of 25 July 2017 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017D1385, retrieved on 17/09/2020 [https://web.archive.org/web/20200917133805/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017D1385]
On 3 February 2017, the European heads of state joined in Malta for a meeting on the external aspects of migration in the Central Mediterranean route. France, represented by François Hollande, also participated in this meeting. The Malta Declaration “affirmed that priority will notably be given to training, equipment, and support to the Libyan national Coast Guard.”2179Council of the European Union, Council Decision (CFSP) 2017/1385 of 25 July 2017 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017D1385, retrieved on 17/09/2020 [https://web.archive.org/web/20200917133805/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017D1385] preambular paragraph 4.
François Hollande stated that:
“We must do everything so that the political process in Libya can allow these measures to be effective. A government of national unity exists, led by Prime Minister Sarraj but there is also General Haftar and it is very important that there can be reconciliation, a recomposition and, therefore a reaffirmation of state political authority in Libya. We must all contribute to this, France takes its share. This political process is essential for the restoration of authority and therefore for the implementation of measures, in particular border controls and even deployment or humanitarian operations or operations for the coast guard […] We have taken another step today, because there has been an agreement with Libya, with Italy and Libya first but also the European Union with Libya so that there are coast guards who can be trained, more numerous and who can thus prevent migratory flows. In the same way, the operation ‘Sophia’ was reinforced.”2180Représentation permanente de la France auprès de l’Union européenne, Sommet de Malte-“Nous devons avoir une conception européenne de notre avenir”, 23/02/2019, https://ue.delegfrance.org/sommet-de-malte-nous-devons-avoir, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125912/https://ue.delegfrance.org/sommet-de-malte-nous-devons-avoir]
(a) France’s vision on the training of the Libyan Coastguard
France welcomed the idea of a strong Libyan coastguard and was even reported to push for the idea of training the Libyan coast guard with the guarantee that all migrants would be returned to Libya.2181Interviewee I25 France agreed and contributed to the capacity building, convinced by the underlying interests to prevent “migrants” from reaching European shores at all costs.
During council meetings no one objected to Sophia training the Libyan coastguard.2182Interviewee I2 2183Interviewee I13 2184Interviewee I26 But France did express doubts and was afraid of creating better pirates or traffickers, manifesting awareness of the dubious character of the Libyan coastguards and their ties to militias and smugglers.2185Interviewee I2
Within the Political and Security Committee, France eventually agreed to the training of the Libyan coastguard on the condition that Sophia’s mandate include the enforcement of the arms embargo, nonetheless questioning the feasibility and usefulness of the training.2186Interviewee I2
Given the Libyan coastguard’s record of abuse committed during search and rescue operations, France saw the training as problematic from a human rights point of view, but did not oppose the overall system that was to be fueled through these means.2187Interviewee I25 Rather, it raised concerns regarding the consequences of the modification of Sophia’s mandate and expressed its preference for a status quo.2188Interviewee I25
Eventually, France was convinced by the necessity of training the Libyan coastguard given what was perceived as “limited capabilities.” The proposal was framed within the conditions that it would be presented as including basic human rights trainings, and that their action, as Italy proposed, would be surveilled by drones.2189Interviewee I31 A further condition was for the Libyan coastguard to provide appropriate guarantees that “migrants”’ rights were safeguarded upon arrival.
The French authorities ultimately perceived the training of the Libyan coastguard as a necessity as it would, on the one hand, regulate and restrict migratory flows and, on the other hand, maintain a European ‘presence’ in Libya that may prevent the country's security problems from impacting Europe.2190Interviewee I25 In other words, France favored the victimization of ‘migrants’ in Libya over their potential arrival to Europe.
(b) France’s involvement in the training of the Libyan Coastguard
In June 2017, Rome called upon its European partners to open their ports to boats rescuing “migrants” in order to ease the flow arriving in Italy. However, “Italy’s partners judged that it was not the most likely option to respond to the current situation” because it would be “counterproductive” as it risked “creating an additional pull factor.”2191“Migrants : vers un “code de conduite pour les ONG” face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132121/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569] The idea was therefore to “ensure that the irregular flows upstream are better dried up”2192“Migrants : vers un “code de conduite pour les ONG” face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132121/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569] and “to help the Italians better manage the flows upon arrival in Italy.”2193“Migrants : vers un “code de conduite pour les ONG” face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132121/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569]
On 3 July 2017, Gérard Collomb’s Ministry of the Interior stated in a press release that during a meeting, the ministers of France, Germany, and Italy, along with EU Commissioner Avramopoulos, agreed on the reinforcement of support for the Libyan coastguard, “by increasing training activities” and “by providing additional financial support, while ensuring close monitoring of activities.”2194Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132308/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire]
On 28 August 2017, the heads of state of France (Emmanuel Macron and Edouard Philippe), Germany, Spain, and Italy further welcomed, “the efforts made by the Libyan national government to control its territorial waters […] they recognize that it is important to adequately equip and train Libyan coastguards, with an emphasis on the protection of human rights.”2195Elysée, DÉCLARATION CONJOINTE - RELEVER LE DÉFI DE LA MIGRATION ET DE L’ASILE, 28/08/2017, https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132418/https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf], pp. 3-4. The emphasis on ensuring respect for human rights is revealed to be self-incriminating when placed within the context of the ICC Prosecutor’s report to the UNSC, acknowledging the commission of ICC crimes against ‘migrants’ and that Libya has turned to a marketplace for human trafficking.
And yet, in February 2019, at the Munich Security Conference, Florence Parly, the French Minister of the Armed Forces, revealed that the French Navy had signed a contract with Sillinger, a subsidiary of the New Zealand group Future Mobility Solutions, for the acquisition of six semi-rigid Rafale boats to be transferred, “from spring,” to the Libyan coastguards to carry out their missions to “fight against illegal emigration and terrorism.”2196Ministère de la défense, Bulletin d’informations Industrielles (B2I), 01/04/2019, https://www.defense.gouv.fr/content/download/99064/959427/20190301_np_dga-ds-s2ie-ite-dves_b2i-835.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917133055/https://www.defense.gouv.fr/content/download/99064/959427/20190301_np_dga-ds-s2ie-ite-dves_b2i-835.pdf], p. 13.
Eight NGOs petitioned the Paris Administrative Court of Appeal to prevent the delivery of the ships to Libya.2197AFP, “La France renonce à livrer des navires aux garde-côtes libyens,” Le Monde, 02/12/2019, https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html, retrieved 17/09/2020 [https://web.archive.org/web/20200917133155/https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html] In its brief, the Ministry argued that this delivery would have had the “sole objective to accompany the Libyan State through the process of consolidating the rule of law and the reconstructing of military capacities of its navy.”2198AFP, “La France renonce à livrer des navires aux garde-côtes libyens,” Le Monde, 02/12/2019, https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html, retrieved 17/09/2020 [https://web.archive.org/web/20200917133155/https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html] Eventually, on 26 November 2019, the Ministry wrote to the Court that “although the transfer had long been considered to the benefit of Libya, the minister finally decided not to deliver the boats to that State.”2199AFP, “La France renonce à livrer des navires aux garde-côtes libyens,” Le Monde, 02/12/2019, https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html, retrieved 17/09/2020 [https://web.archive.org/web/20200917133155/https://www.lemonde.fr/international/article/2019/12/02/la-france-renonce-a-livrer-des-navires-aux-garde-cotes-libyens_6021295_3210.html]
But the trainings continued. In June 2019, the French General François Lecointre stated:
“The armies contribute to the fight against illegal immigration, mainly in the Mediterranean. This concerns in particular the participation in the European Union mission Sophia, which has been extended to the training of the Libyan coastguards and to the fight against arms trafficking. In this context, we have worked to strengthen the Libyan Navy of the Government of National Accord in the fight against trafficking in human beings. The future of this mission will be discussed next September.”2200Sénat, Compte renduCommission dela défense nationale et des forces armées—Audition du général François Lecointre, chef d’état–major des armées, 11/06/2019, https://www.defense.gouv.fr/content/download/563790/9728994/file/20190611_CEMA_Audition-ASSNAT.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917130044/https://www.defense.gouv.fr/content/download/563790/9728994/file/20190611_CEMA_Audition-ASSNAT.pdf], p. 6.
In November 2019, French Rear Admiral Olivier Bodhuin, Deputy Commander of Operation Sophia, stated that:
“More than 500 Libyan sailors and coast guards have been trained and, despite a very degraded security situation in Libya, we keep a permanent dialogue with them and a relationship based on trust. The last training cycle was completed on September 27, 2019, and has trained nearly 100 sailors. With the extension of Operation Sophia’s mandate, a new training plan is being finalized and should come into force in early 2020.”2201“L’Opération ENAVFOR MED Sophia (est) située à la frontière entre la sécurité et la Défense,” Cols Bleus Marine Nationale, November 2019, https://en.calameo.com/read/0003318761201191b2beb, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132927/https://en.calameo.com/read/0003318761201191b2beb], p. 29.
On 22 July 2019, France organized an informal working meeting dedicated to migration issues in the Mediterranean, as a follow-up to the Foreign Affairs Council of 15 July 2019, and the informal JHA Council meeting of 18 July 2019.2202Représentation permanente de la France auprès de l’Union européenne, Réunion informelle sur les migrations en Méditerranée, 23/07/2019, https://ue.delegfrance.org/reunion-informelle-sur-les, retrieved on 17/09/2020 [https://web.archive.org/web/20200917134259/https://ue.delegfrance.org/reunion-informelle-sur-les] This meeting convened the Ministers of Foreign Affairs, the Ministers of the Interior, as well as the High Commission for Refugees (UNHCR) and the International Office for Migration (IOM).2203Représentation permanente de la France auprès de l’Union européenne, Réunion informelle sur les migrations en Méditerranée, 22/07/2019, https://ue.delegfrance.org/IMG/pdf/reunion_informelle_sur_les_migrations_en_mediterranee_-_conclusions_de_la_presidence_fr.pdf?10011/dbdaf41018fd5364812be95a8f0e1d65a78fd1a2, retrieved on 17/09/2020 [https://web.archive.org/web/20200917134259/https://ue.delegfrance.org/reunion-informelle-sur-les] Jean-Yves Le Drian, Minister of Europe and Foreign Affairs, and Christophe Castaner, Minister of the Interior, concluded that:
“All the participants expressed their concern about the current fate of migrants and refugees in Libya. Often these people have to choose between being subjected to ill-treatment, abuse, and even death - as demonstrated by the tragic bombing of the Tajoura detention center on 2 July - or undertaking a perilous voyage at sea. The participants called on the EU to continue supporting cooperation with countries of origin, transit and asylum, in particular in the areas of prevention of departures and strengthening of maritime border management capacities and terrestrial.”2204Ambassade de France au Royaume-Uni, Informal Paris meeting tackles subject of migration in Mediterranean, 22/07/2019, https://uk.ambafrance.org/Informal-Paris-meeting-tackles-subject-of-migration-in-Mediterranean, retrieved on 31/05/2025 [https://web.archive.org/web/20220119023636/https://uk.ambafrance.org/Informal-Paris-meeting-tackles-subject-of-migration-in-Mediterranean]
Jean-Yves le Drian was Defense minister under Hollande’s mandate, before becoming Emmanuel Macron’s Foreign affairs minister. Once again, declaration after declaration, it is clear that Hollande, Macron and their ministers were extremely well informed about the ICC crimes committed against “migrants” in Libya pursuant to EU and French policies.
(c) 2015-2020 – NGO criminalization
On 2 July 2017, the Ministers of the Interior of France (Gérard Collomb), Germany, and Italy as well as the European Commissioner Avramopoulos met in Paris, to “examine the challenges posed by the growing migratory flow in the Central Mediterranean”.2205“Migrants : vers un “code de conduite pour les ONG” face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132121/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569] On this occasion, they expressed their resolute solidarity with Italy, faced at the time with an increasing number of arrivals, and vouched to up their support.2206Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132308/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire] They furthermore agreed to work on a Code of Conduct for NGOs, to be prepared and presented by Italy, in order to limit NGOs’ ability to conduct search and rescue in the Central Mediterranean.2207Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132308/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire] 2208“Migrants : vers un “code de conduite pour les ONG” face à la pression sur l’Italie,” Europe 1, 03/07/2017, https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132121/https://www.europe1.fr/international/migrants-vers-un-code-de-conduite-pour-les-ong-face-a-la-pression-sur-litalie-3378569]
On 4 July 2017, the European Commission agreed and stated that “Italy should draft, in consultation with the Commission and on the basis of a dialogue with the NGOs, a Code of Conduct for NGOs involved in SAR activities,”2209European Commission, Central Mediterranean Route: Commission proposes Action Plan to support Italy, reduce pressure and increase solidarity, 04/07/2017, https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1882, retrieved on 17/09/2020 [https://web.archive.org/web/20200917133438/https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1882] opening up the possibility of Council approval of the document.
In order to ensure rapid support of Italy, the participants decided to call upon their other EU partners to collectively examine these action points at another informal meeting of the Council of the EU on 6 July 2017 in Tallinn.2210Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132308/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire]
On 28 August 2017, the Heads of State and Government of Germany, Spain, and France, welcomed “the measures taken by Italy [… in particular] the code of conduct for rescue operations at sea which constitutes a beneficial advance allowing to improve the coordination and the efficiency of the rescues. The heads of state and government call on all NGOs operating in the area to sign and comply with the code of conduct.”2211Elysée, DÉCLARATION CONJOINTE - RELEVER LE DÉFI DE LA MIGRATION ET DE L’ASILE, 28/08/2017, https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132418/https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf], p. 14.
In a Council meeting in June 2018, Macron was reported to be more involved than usual in the discussions related to the regulation of the conduct of SAR NGOs.2212LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, pp. 16, 20. During the first revision, REV 1, France and Italy proposed the following addition to the draft: “All vessels operating in the Mediterranean must respect the applicable laws and not obstruct operations of the Libyan Coastguard.”2213LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 20.
During the same month Macron also publicly criticized SAR NGOs, stating that “in the end we are playing into the hands of smugglers by reducing the risks of the journey.”2214“France adds its voice to stop NGO ships from acting as ‘taxis’,” EURACTIV, 28/06/2018, https://www.euractiv.com/section/politics/news/france-adds-its-voice-to-stop-ngo-ships-from-acting-as-taxis/, retrieved on 11/08/2025 [https://web.archive.org/web/20250725160117/https://www.euractiv.com/section/politics/news/france-adds-its-voice-to-stop-ngo-ships-from-acting-as-taxis/]
France therefore was part and parcel of the persecution of SAR NGOs pursuant to EU’s 2nd policy and, consequently, the active obstruction of the critical life-saving activities performed by these NGOs.
DKey individuals
Suspects
-
Béatrice le Fraper>
2018–2022
FranceAmbassador to Libya
-
Bernard Cazeneueve>
2014–2016
FranceInterior Minister
-
Brigitte Curmi>
2016–2018
FranceAmbassador to Libya
-
Clément Beaune>
2017–2019
FranceEuropean Advisor to Macron
-
Emmanuel Macron>
2017–Present
FrancePresident
-
François Hollande>
2012–2017
FrancePresident
-
Gérard Collomb>
2017–2018
FranceMinister of Interior
-
Jean-Marc Ayrault>
-
Luc Derepas>
2015–2016
FranceDirector-General “étrangers” – Ministry of Interior
-
Olivier Bodhuin>
2018–2022
FranceRear Admiral Deputy Commander Operation Sophia
-
Philippe Léglise Costa>
2014–2017
FranceFrance SGAE
-
Raphaël Sodini>
2012–2015
FranceAdvisor on Immigration and Asylum – Interior Ministry
-
Sandrine Gaudin>
2017–2019
FranceSGAE and European Advisor to the Prime Minister
-
Serge Guillon>
2017–2019
FranceEuropean Advisor to Ayrault and Secretary General of European Affairs
-
Thibault de la Hay Jousselin>
2105–2019
European CommissionChief of Cabinet of Leggeri
Involved
-
Aurélie Lapidus>
2014–2015
FranceAdjointe de Philippe Léglise-Costa au SGAE et conseillère Europe de Manuel Valls
-
Cédric Lewandowski>
2012–2017
FranceHead of the civil and military affairs cabinet of Le Drian§
-
Christophe Castane>
10/2018–07/2020
FranceInterior Minister
-
Damien Cristofari>
2016–2017
FranceMiddle East & Mediterranean Advisor to the Foreign Minister
2017–2019
European External Action Service (EEAS)Political Advisor to the Secretary-General of the EEAS
2019– at least 2022
European External Action Service (EEAS)Head of external relations of the EU at the Foreign Ministry
-
Emmanuel Bonne>
2019–unclear
The European CouncilFranceDiplomatic Counselor/Sherpa to Macron
-
Gautier Lekens>
-
Gilles Boidevezi>
12/2017–07/2019
European CommissionDeputy Operation Commander of Sophia
-
Jacques Audibert>
2014–2017
FranceThe European CouncilFrancois Hollande's Sherpa
-
Jay Dharmadhikari>
2014–2016
FranceCouncil of the European UnionPermanent Representative to the Politico-Military Group
2016–2017
European External Action Service (EEAS)European Advisor to Le Drian
-
Jean-Yves le Drian>
-
Magali Charbonneau>
-
Michael Lalande>
-
Nathalie Cantan>
2018–2022
FranceConseillère Europe et Afrique de Florence Parly, Ministre des Armées
-
Philippe Conduché>
2010–2018
FranceChef Affaires européennes - DGEF
-
Xavier Chatel de Brancion>
2018–2022
FranceDiplomatic Counselor to Defence Minister Florence Parly
-
Agnès Rebuffel-Pinault>
2012–2018
FranceCouncil of the European UnionConseillère Affaires Intérieures -Représentation Permanente de la France auprès de l’UE
-
Hervé Bléjean>
2015–2016
European CommissionDeputy Operation Commander of Sophia
2020–2023
European External Action Service (EEAS)Director General of the European Union Military Staff
-
Florence Parly>
2017–2022
FranceDefence Minister
-
Frédéric Veau>
2013–2016
FranceCouncil of the European UnionPréfet – Chef service Justice et Affaires intérieures, CATS, CSIFA - Représentation Permanente de la France auprès de l’UE
-
Laurence Pais>
2013–2017
FranceCouncil of the European UnionDeputy Representative at PSC - Représentation Permanente de la France auprès de l’UE
-
Laurence Rist>
2016–2018
FranceSGAE – Libre circulation des personnes
-
Luis Vassy>
2014–2019
FranceConseiller diplomatique adjoint de Jean-Yves le Drian (ministre de la Défense puis ministre de l’Europe et des Affaires étrangères)
-
Manuel Valls>
2012–2014
FranceCouncil of the European UnionInterior Minister
2014–2016
FrancePrime Minister
-
Nicolas Suran>
2016–2019
FranceEuropean External Action Service (EEAS)Council of the European UnionPermanent Representative to the PSC
-
Pascal Teixeira da Silva>
2017–2022
FranceThe European CouncilMacron's Sherpa on migration
-
Paul Jean Ortiz>
2012–2014
The European CouncilFranceFrancois Hollande's Sherpa
-
Philippe Setton>
2013–2016
FranceCouncil of the European UnionEuropean External Action Service (EEAS)Permanent Representative to the PSC
-
Pierre-Antoine Molina>
2015–2020
FranceDirecteur général des Etrangers en France (DGEF) - Ministère de l’Intérieur
-
Pierre Sellal>
2014–2017
FranceCouncil of the European UnionPermanent Representative to the COREPER
-
Sophie Martin Lang>
2014–2015
FranceConseillère affaires communautaires, cabinet du Président de la République
2019–2020
Council of the European UnionConseillère Antici - Représentation Permanente de la France auprès de l’UE
Related
- 2008HERBET, M., “Cacophonie au sommet de l’État sur la gestion des affaires européennes,” Contexte, 19/01/2015, https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111303/https://www.contexte.com/article/pouvoirs/cacophonie-au-sommet-de-l-etat-sur-la-gestion-des-affaires-europeennes_27202.html]
- 2009Interviewee I31
- 2010Ibid.
- 2011Ibid.
- 2012Ibid.
VIII
Germany
AExecutive Summary
As one of the most powerful Member States of the European Union, Germany has been a prominent and influential actor in the development and implementation of EU migration policies. A major recipient country of asylum seekers, the objectives of Germany’s migration policy were mostly aligned with those of the EU: to prevent arrivals of “migrants” to the European Union at all costs, to create a redistribution mechanism for those who nonetheless arrived, while maintaining a façade of balance between a restrictive and humane border policy. Chancellor Angela Merkel was personally involved, in detail, in EU policymaking, and was highly knowledgeable on the situation in the Mediterranean and Libya. German authorities played a critical role from day one in the elaboration of the analyzed policies.
In the case of Mare Nostrum, the Interior Minister de Maiziere had voiced his opposition to the mission several times, citing an alleged “pull effect” of the large-scale search and rescue operation. He was amongst handful of ministers who signed the letter to Commissioner Malmstrom asking for the replacement of Mare Nostrum with Operation Triton. Germany explicitly refused an aid request from Italy on the matter and was adamant in refusing any follow-up operation that prioritized search and rescue. It subsequently contributed to Operation Triton after it was bargained against the abandonment of Mare Nostrum.
After the rapid augmentation of arrivals in German territory from the Eastern routes, the government focused its efforts on externalizing border control to third countries. Accordingly, Germany acted to curb migration via the Central Mediterranean route. Merkel initiated the Valletta Summit in 2015, in which the framework for future cooperation with Libyan actors was decided. In a letter co-authored with France and Italy, Germany later laid out a common external migration approach, which centered Libya as a key partner in migration management.
Once Operation Sophia was running, Germany was among the advocates for the inclusion of the training of the LYCG in its mandate. Germany was actively involved in the formulation and expansion of Sophia’s mandate, as well as in supplying personnel, funds, and material support to the training of the LYCG.
During the development and implementation of EU’s 2nd policy, Merkel and her ministers were fully aware of the horrific treatment of “migrants” in Libya. Merkel and her ministers visited reception and detention centers themselves and received regular and detailed reports on conditions from the inside from the German diplomatic services in the region. The decision to direct the Libyan coastguard to capture, abduct, forcibly transfer to and detain “migrants” in Libya, was thus taken in full consciousness and acceptance of the death, torture, rape, and enslavement awaiting them in Libya. In lieu of dismantling them, the sole answer Germany was willing to offer was to “improve” the conditions in Libyan camps.
German authorities further attempted to prevent NGOs from operating in several instances on the basis of alleged administrative or legal issues starting in 2017, none of which held up in court. In July 2017, Thomas de Maizière, alongside his French and Italian counterparts, called for a code of conduct for NGOs. In 2020, further cementing this policy, the Ministry of Transport instated newly raised legal requirements for NGO vessels conducting search and rescue, effectively preventing many NGOs from continuing their activities.
Germany conclusively prioritized the deterrence of “migrants” attempting to reach Europe over the latter’s lives. The country’s officials designed, enabled, and contributed to policies pursuant to which countless crimes against humanity against “migrants” were committed.
BDecision-Making Structures
Generally, the main actors in migration policy were the Interior Ministry, the Foreign Ministry, and the Office of the Chancellor. Under usual circumstances, German migration policy falls within the portfolio of the Ministry of Interior. The so-called “migration crisis” led to a structural change which centered the Office of the Chancellor as the main actor in external migration policy from April 2015 onwards. Chancellor Angela Merkel herself and her Chief of Cabinet Peter Altmaier subsequently pursued a top-down policy-making approach in which they would actively instruct the relevant units within the government on migration policy rather than receiving most of the input from the specialized units and advisors. Demonstrative of this centralization is the Refugee Coordination Unit which was created in October 2015 as a special unit for migration policy located within the Office of the Chancellor and thus under direct supervision of the Chancellor herself. This unit coordinated all the migration policy efforts within the relevant ministries – Interior and Foreign Affairs – and harmonized them into a coherent strategy.
As mentioned, the ministries of Interior and Foreign Affairs contributed to Germany’s external migration policy. Relevant units within both ministries and the Office of the Chancellor were given a framework by the Chancellor and her ministers and would draft policy positions and coordinate and discuss them amongst each other. Politically charged decisions would at times warrant higher ranking officials to find an agreement.
The Foreign Ministry specifically was responsible for the external dimension and would coordinate third country cooperation, naval missions in the Mediterranean, and every matter tied to Libya. On the latter, the Interior Ministry was always consulted.
At the EU itself, Merkel’s two Sherpas – one on European Affairs and one on Foreign Affairs – would pre-negotiate every European Council decision.
During what was widely qualified in the German public space as a “migration crisis”, there was a temporary change of structures within the German government hitherto responsible for migration policy, which consisted of an intense concentration over the Chancellery, then under the rule of Angela Merkel. Until around April 2015, migration policy was mainly part of the Interior Ministry’s portfolio.2215Interviewee I22
As a consequence of the rising numbers of asylum seekers, more units suddenly dealt with migration policy including within the Office of the Chancellor and the Foreign Ministry.
IOffice of the Chancellor
Within the Office of the Chancellor, the European dimension of migration policy was relegated to the European Affairs division, headed by Nikolaus Meyer-Landrut (2014 – 2015) and Uwe Corsepius (2015 – 2022). They were supported by advisers on European Union law (Ms. Meyer 20142216German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf], p. 85. – 2016;2217German Office of the Chancellor, Organisationsplan, 20/04/2016, https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes, retrieved on 01/10/2020 [https://web.archive.org/web/20250424122641/https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes] Nikola Gilhoff 20192218German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 15/08/2019 https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185644/https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1]); Relations to Member States (Tania von Uslar-Gleichen 2014,2219German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf], p. 85. Rainer Rudolph 20152220German Office of the Chancellor, Organisationsplan, 20/04/2016, https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes, retrieved on 01/10/2020 [https://web.archive.org/web/20250424122641/https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes] – 20192221German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 15/08/2019 https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185644/https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1]); and Coordination of EU Policy (Mr. Felsheim 2014;2222German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf], p. 85. Ms. Ruge 2015 – 2016;2223German Office of the Chancellor, Organisationsplan, 20/04/2016, https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes, retrieved on 01/10/2020 [https://web.archive.org/web/20250424122641/https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes] Edgar Lenski 20192224German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 15/08/2019 https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185644/https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1]).
(a) The Refugee Coordination Unit
The sudden participation in migration policy issues beyond the Interior Ministry changed again in October 2015 when the “Koordinierungsstab für Flüchtlingspolitik”, the refugee policy unit (RPU), was created by Merkel and her chief of staff Peter Altmaier.2225German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf] 2226Interviewee I61 Jan Hecker, a former judge at the Federal Administrative Court, was put in charge of this unit. It served as an emergency response mechanism during the “height” of the crisis and was later disbanded around 2017.2227Interviewee I42 Reports from the Office of the Chancellor and the Interior Ministry differ on the extent of RPU's take-over of units traditionally responsible for migration policy. Generally, its main task was to coordinate the efforts from different parts of the government, including the Interior and Foreign Ministry.2228Interviewee I42 The RPU essentially oversaw their work on migration policy and harmonized them into a coherent strategy.2229Interviewee I42 According to an official within the Office of the Chancellor, the RPU was initially composed of one unit and later expanded to three units, within the Office of the Chancellor, the Foreign and Interior Ministries, and gradually took over all aspects of migration policy, including the European dimension by April 2015.2230Interviewee I42 The RPU had recompiled the work that the different administrative bodies continued to produce in their traditional roles.2231Interviewee I42 This slightly differentiating presentation of the RPU’s function is likely due to the RPU being seated in the Office of the Chancellor, therefore taking over more responsibilities within its own institution than in the Interior Ministry, and mainly verticalizing the processes regarding ministerial level decision making.
Merkel herself and her chief of staff Peter Altmaier were extensively involved in every part of their migration policy.2232German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf] 2233Interviewee I61 Rather than the usual collaborative decision-making process in which the units would prepare positions, migration policy was developed in a top-down manner:2234German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf] Merkel and Altmaier would give instructions, and the units would implement.2235German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf]
(b) Sherpas
Merkel’s Sherpas were Uwe Corsepius/Nikolaus Meyer-Landrut and Jan Hecker/Christian Heusgen, her European and Foreign Policy Advisors, respectively. These accompanied her to nearly every appointment.2236German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf] The Sherpas would pre-negotiate every document before the heads of state meetings in Brussels (European Council).2237German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf]
IIInterior Ministry
The most important units within the Interior Ministry on migration policy were the EU task force, the migration unit M, and unit B for border security.2238Interviewee I42 The EU task force was included in all decisions concerning the EU.2239Interviewee I42 It coordinated and ensured a coherent communication towards the EU and Member States.2240Interviewee I42
While the decision-making process within the Chancellery was top-down, this was not consistently the case in the Interior Ministry. The expert advisors within a unit would draft a position on a relevant topic first and then coordinate and discuss that position with other relevant actors within the government, such as different units, the Foreign Ministry or the Office of the Chancellor.2241Interviewee I42 Once this consultation was finished, this position would be communicated by the government.2242Interviewee I42
If a topic was too political, the final decision would go up the ranks to find an agreement, though this was not a typical scenario.2243Interviewee I42 A difficult topic such as Libya, for example, would always reach the ministerial level.2244Interviewee I42 Similarly, impulses were given both by higher ranks – department heads, ministers, or the chancellor – and initiated by the advisors themselves.2245Interviewee I42 In terms of decision-making power, the advisors had a framework in which they could operate and make decisions. If they were unsure, they went up a higher level.2246Interviewee I42 Both bottom-up and top-down processes, therefore, characterized the making and implementation of migration policies.2247Interviewee I42
IIIForeign Ministry
The Foreign Ministry was responsible for the external dimension, would monitor refugee routes and movements, manage relations to third countries, and was the main actor with regards to naval missions in the Mediterranean.2248Interviewee I42 It further dealt with everything relating to Libya. For those decisions, the Interior Ministry would come into play at the interdepartmental consultation stage.2249Interviewee I42 The Foreign Ministers were successively Frank Walter Steinmeier (2013 – January 2017), Sigmar Gabriel (January 2017 – March 2018), and Heiko Maas (March 2018 – 2021).
The relevant units and positions within the Ministry consisted of the Officer for Human Rights Policy and Humanitarian Aid, the Political Department, the Legal Department, and the Europe Department. The latter includes a division for European Migration Policy.
(a) Permanent Representation to the European Union
The German Permanent Representation to the European Union advocates for German interests at different levels of European institutions.2250German Permanent Representation to the European Union, Aufbau und Arbeitsweise der Ständigen Vertretung bei der Europäischen Union, 24/11/2017, https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908, retrieved on 01/10/2020 [https://web.archive.org/web/20201007190450/https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908] The Permanent Representative, his deputy, and the representative to the Political and Security Committee oversee three major departments on Policy, Finance and Economy, which are further divided into sub-divisions.2251German Permanent Representation to the European Union, Aufbau und Arbeitsweise der Ständigen Vertretung bei der Europäischen Union, 24/11/2017, https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908, retrieved on 01/10/2020 [https://web.archive.org/web/20201007190450/https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908]
It is mainly tasked with the preparation of the decisions made by the councils and therefore directly involved in legislative processes.2252German Permanent Representation to the European Union, Aufbau und Arbeitsweise der Ständigen Vertretung bei der Europäischen Union, 24/11/2017, https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908, retrieved on 01/10/2020 [https://web.archive.org/web/20201007190450/https://bruessel-eu.diplo.de/eu-de/staendigevertretungeu/werwirsind/2122908] Accordingly, the Representative to the Political and Security Committee prepares the work of the deputy Permanent Representative and Permanent Representative on Coreper I and II.2253Interviewee I42
All levels were in constant contact with their counterparts in other Member States, especially with France and Italy.2254Interviewee I42 This constant communication was used to decide which topic to put on the agenda of EU institutional constellations.2255Interviewee I42 There was no fixed strategy which means sometimes formal structures would be used and sometimes this would all be decided through these informal communication channels. Germany’s Permanent Representation was not significant in terms of agenda-setting, which was relegated to the government.2256Interviewee I42
During the relevant time, the German Ambassador to the Coreper I was successively Peter Tempel (2014), Peter Rösgen (2015 – 2016), and Susanne Szech-Koundouros (2018 – 2019). Guido Peruzzo (2014), Reinhard Silberberg (2015), and Michael Clauss (2018 - present) represented Germany at the Coreper II. At the level of the Political and Security Committee, Germany was represented by Johannes Haindl (2014 – 2015), and Michael Flügger (2016 – 2019).
(b) Ambassador to Libya
The German Embassy in Libya was moved to Tunis in July 2014 due to security concerns.2257German Embassy in Libya, Libyen und Deutschland: Bilaterale Beziehungen, 16/03/2020, https://tripolis.diplo.de/ly-de/themen/politik/bilaterales, retrieved on 01/10/2020 [https://web.archive.org/web/20201007191016/https://tripolis.diplo.de/ly-de/themen/politik/bilaterales] The ambassadors to Libya were successively Christian Much (2013 – 2016), Christian Buck (2016 – 2018), and Oliver Owcza (2018 – 2021).
IVMinistry of Transport
Alexander Dobrindt (2013 – 2017), Christian Schmidt (2017 – 2018), and Andreas Scheuer (2018 – 2021), have successively led the Ministry of Transport.
The “Berufsgenossenschaft Verkehr” reports to the Ministry of Transport and was involved in the incapacitation of rescue NGOs. It has been led by Sabine Kudzieka since 2009.2258Fahrschule BVF, Sabine Kudzielka neue Geschäftsführerin der BGF, 07/03/2009 https://www.fahrschule-online.de/nachrichten/sabine-kudzielka-neue-geschaeftsfuehrerin-der-bgf-2608068, retrieved on 01/10/2020 [https://web.archive.org/web/20201007191244/https://www.fahrschule-online.de/nachrichten/sabine-kudzielka-neue-geschaeftsfuehrerin-der-bgf-2608068] Its subdivision “Ship Security” has been overseen by Kai Krueger since early 2017.2259BG Verkehr, Organigramm BG Verkehr, https://www.bg-verkehr.de/redaktion/bilder/die-bg-verkehr/organigramm-bg-verkehr-web.jpg, retrieved on 01/10/20 [https://web.archive.org/web/20201008143457/https://www.bg-verkehr.de/redaktion/bilder/die-bg-verkehr/organigramm-bg-verkehr-web.jpg] The division is tasked with the administration of flag state matters, and compliance with national and international requirements for ship security.2260BG Verkehr, Organigramm BG Verkehr, https://www.bg-verkehr.de/redaktion/bilder/die-bg-verkehr/organigramm-bg-verkehr-web.jpg, retrieved on 01/10/20 [https://web.archive.org/web/20201008143457/https://www.bg-verkehr.de/redaktion/bilder/die-bg-verkehr/organigramm-bg-verkehr-web.jpg] 2261Deutsche Flagge, Dienststelle Schiffssicherheit mit neuer Leitung, https://www.deutsche-flagge.de/de/aktuelles/nachrichten-archiv/nachrichten-2017/dienststelle-schiffssicherheit-mit-neuer-leitung, retrieved on 01/10/2020 [https://web.archive.org/web/20201007191853/https://www.deutsche-flagge.de/de/aktuelles/nachrichten-archiv/nachrichten-2017/dienststelle-schiffssicherheit-mit-neuer-leitung]
CImplication in Criminal Policies
The relevant German positions and policies were based on a broad consensus within the German government,2262Interviewee I22 Germany would often speak first at all EU levels and was always a leading actor behind decisions relating to naval missions in the Mediterranean.2263Interviewee I22 2264Interviewee I61 2265Interviewee I42 Merkel, alongside Macron, was the person who would have to be on board in order for a policy/decision to go forward.2266Interviewee I28 Merkel – “the EU’s undisputed political leader” - was also close to Juncker, which gave her influence over the Commission and, in turn, more leverage over the Council.2267Interviewee I22 2268LUDLOW P., “Preliminary Evaluation 2015/9,” Eurocomment, Leuven University Press, 15/10/2015
I2014 - Mare Nostrum
Prior to the end of Mare Nostrum, Germany was a member of the previously introduced Task Force Mediterranean, which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis.”2269European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf,retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 2. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation, the basis for the later pushback by proxy;2270European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. identified EUBAM as a possible mechanism thereof;2271European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. indirectly alluded to the potential training of the Libyan coastguard;2272European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 9-10. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”2273European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf,retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. They also make explicit reference to ensuring compliance with international human rights standards, and, crucially, “the principle of non-refoulement”, as well as putting special emphasis on potential issues regarding third country cooperation, demonstrating the participants’ clear knowledge their suggested actions potentially constitute serious and grave violations of international law.2274European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 3, 9, 15, 16, 17.
The earliest communication in October 2013, published before any of the analyzed policies were decided and implemented, already mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,”2275European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing the awareness of the conditions which the suspects subsequently subjected the targeted population to, through the policy of “refoulement by proxy”.
In 2013, the mayor of Lampedusa spoke to Martin Schulz, the President of the European Parliament at the time, to request a change of European migration policy and help for “migrants” after the Lampedusa shipwrecks in October 2013.2276SCHMID, T., “Die zentrale Mittelmeerroute – Aus den Augen, aus dem Sinn – Flüchtlinge und Migranten an den Rändern Europas,” Heinrich-Böll-Stiftung, August 2016, https://www.boell.de/sites/default/files/2016-08-schmid_zentrale_mittelmeerroute.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007192310/https://www.boell.de/sites/default/files/2016-08-schmid_zentrale_mittelmeerroute.pdf], p. 11. Schulz, one of the most important leaders of the Social Democrats Party (SPD), was part of the governing coalition at the time. The issue was the subject of public debate, and naturally discussed among the German leadership, but did not trigger major institutional reactions at first.
Leading up to the main events and significantly raising the stakes for Germany in the “migration crisis,” Interior Minister de Maizière stated at a JHA council meeting in October 2014 that Mare Nostrum was a bridge to Europe and was aiding and abetting smugglers.2277“Wie de Maizière vom Bremser zum Retter wurde,” Süddeutsche Zeitung, 21/04/2015, https://www.sueddeutsche.de/politik/hilfe-fuer-fluechtlinge-wie-de-maiziere-vom-bremser-zum-retter-wurde-1.2444938, Süddeutsche Zeitung retrieved on 01/10/2020 [https://web.archive.org/web/20201007192524/https://www.sueddeutsche.de/politik/hilfe-fuer-fluechtlinge-wie-de-maiziere-vom-bremser-zum-retter-wurde-1.2444938] In the same month, Germany offered contributions to the potential operation Triton, before the operation was even properly designed.2278“Immigration: l’UE lance l’opération Triton,” AFP, 09/10/2014, https://www.24heures.ch/monde/europe/immigration-ue-lance-loperation-triton/story/28650153, retrieved on 01/10/2020 [https://web.archive.org/web/20201007192920/https://www.24heures.ch/monde/europe/immigration-ue-lance-loperation-triton/story/28650153] Similarly to other Member States, Germany did not offer to step in and take rescued “migrants” as part of a potential European SAR initiative similar to Mare Nostrum,2279Interviewee I28 2280Interviewee I26 and reportedly refused Renzi’s request for aid to support the existing mission.2281Interviewee I33 The perspective of Germany’s elites was that Merkel could not justify conducting search and rescue activities as a sole response to the “smuggling activity” in the Mediterranean.2282Interviewee I22
At the time, French Interior Minister Bernard Cazeneuve travelled to Germany to defend his “European plan on immigration.”2283Interviewee I26 2284Gouvernment, Compte rendu du Conseil des ministres du 3 septembre 2014, 03/09/2014, https://www.info.gouv.fr/conseil-des-ministres/compte-rendu-du-conseil-des-ministres-du-03-09-2014, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113007/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medi] Reportedly, Merkel and de Maizière were initially cautious of his ideas but changed their minds after the increase of “migrant” arrivals in the country.2285VINCENT, E., La Vague, (Éditions des Equateurs, Paris, 2017), in print, 9782849904831 Subsequently, on 3 September 2014, Cazeneuve stated that Germany among other countries was pushing for a European mission.2286Gouvernement, La lutte contre l’immigration clandestine organisée en Méditerranée, 03/09/2014, https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit, retrieved on 01/10/2020 [https://web.archive.org/web/20201008144030/https://www.gouvernement.fr/conseil-des-ministres/2014-09-03/la-lutte-contre-l-immigration-clandestine-organisee-en-medit] This was followed by a letter sent to Commissioner Malmström and signed by Thomas de Maizière which asked for the replacement of Mare Nostrum with Operation Triton. Given Triton’s intentional deprioritization of search and rescue and emphasis on “stopping” “migrant” arrivals, Germany had put its substantial political weight behind the lethal policy of withdrawing critical SAR infrastructure from the Central Mediterranean route.
II2015 - Triton
Initially, the Central Mediterranean route was not a policy priority for the German government.2287Interviewee I22 This changed in 2015, with the increase in “migrant” arrivals. In June 2015, Germany contributed two boats to Operation Triton.2288EDERER, M., “Andrej Hunko, Dr. Alexander S. Neu, Jan van Aken und die Fraktion DIE LINKE,” 03/08/2019, https://www.andrej-hunko.de/start/download/dokumente/654-militaerische-eu-mission-eunavfor-med-zur-migrationskontrolle-im-mittelmeer/file, retrieved on 01/10/2020 [https://web.archive.org/web/20201007193757/https://www.andrej-hunko.de/start/download/dokumente/654-militaerische-eu-mission-eunavfor-med-zur-migrationskontrolle-im-mittelmeer/file], p. 5. In September 2015, Merkel decided to facilitate the entry of “migrants” waiting in Hungary to Germany (the so-called “Hungary weekend”). This “positive attitude” was arguably a misunderstanding, as it was not intended to increase the acceptance of “migrants” into Germany.2289Interviewee I22 At any rate, after this decision the policy direction shifted, from a relatively welcoming position, to preventing asylees from reaching Germany.2290Interviewee I22
The German initial position triggered intense polemics and was discussed several times in European Council meetings as well as in personal meetings of the Chancellor with the Commission.2291Interviewee I35 Initiated by the German chief of cabinet of the President of the Commission, Martin Selmayr, a solidarity proposal with Germany as well as a new measure for ‘distributing’ asylees was suggested,2292Interviewee I12 but vehemently rejected by the Visegrad group2293Interviewee I35
These developments led to the creation of the RPU. From that moment, one of the central German policy pillars to limit migration inflows was to externalize migration control to Africa. This position was communicated as such to the EU.2294Interviewee I35 From then on, Germany exerted an important pressure to stop the central Mediterranean route.2295Interviewee I47 Merkel initiated the Valletta Summit in November 2015 to discuss these purposes.2296Interviewee I35 During this summit, the cooperation agreement focused on migration with African countries was concretized, the EUTF was established, with Germany pledging to contribute 3 million euros to the fund.2297Agreement Establishing the European Union Emergency Trust Fund for Stability and Addressing Rot Causes of Irregular Migration and Displaced Persons in Africa, and ist Internal Rules, 12//11/2015 https://trust-fund-for-africa.europa.eu/document/download/4cb965d7-8ad5-4da9-9f6d-3843f4bf0e82_en?filename=Constitutive%20Agreement%20, retrieved on 01/10/2020 [https://web.archive.org/web/20240928180749/https://trust-fund-for-africa.europa.eu/document/download/4cb965d7-8ad5-4da9-9f6d-3843f4bf0e82_en?filename=Constitutive%20Agreement%20]
As one of the few countries that faced “migratory pressures” on multiple fronts, Germany sought a comprehensive EU policy from the beginning, as opposed to countries such as Greece or Italy which were focusing on issues specifically related to their geographical zone. The aim of German officials was to tackle as many aspects of migration as possible at once, in order to limit the number of asylees reaching Germany. In the Central Mediterranean, it appears that the German policy attempted to combine the following external migration policy objectives:2298Interviewee I22
· conduct SAR in the Mediterranean
· end the Libyan civil war to facilitate the fight against smugglers
· improve reception in Italy
· obstruct “migrants” from leaving Libya
· stop “migrants” from getting to Libya
· stop smuggling activity overall
· remove “migrants”’ motivation to leave their countries of origin
Alongside this new theoretical prioritization, the Interior Ministry changed its prior refusal to Europeanize border control and began to push for its implementation. In the Mediterranean specifically, the main objectives were to stop smuggling and “illegal” migration.2299Interviewee I22 Heavily driven by the domestic situation and public opinion, this “comprehensive policy” enabled German politicians to simultaneously claim they were prioritizing saving lives while enacting the criminal policies analyzed here to stem migration on the Central Mediterranean route.
In September 2015, Germany co-authored a non-paper with Italy and France on a common external migration policy, advocating for exactly the above mentioned comprehensive European approach, including support to “stabilize” Libya as a future partner in migration management.2300German Government, Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Christine Buchholz, Annette Groth, Ulla Jelpke, Niemma Movassat, Dr. Alecander S. Neu, Alexander Urlich und die Fraktion DIE LINKE, 11/09/2015, http://dip21.bundestag.de/dip21/btd/18/060/1806014.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007194252/http://dip21.bundestag.de/dip21/btd/18/060/1806014.pdf], p. 1. 2301Statewatch, Non-Paper Common external migration policy, Statewatch, September 2015 https://www.statewatch.org/news/2015/sep/eu-Mogherin-n-Non-Paper.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007194405/https://www.statewatch.org/media/documents/news/2015/sep/eu-Mogherin-n-Non-Paper.pdf] Later, in a government statement leading up to the November 2015 Valletta Conference, the government responded to a question on how it planned to support “Libyan border management” by saying that the government aimed to improve the security forces of benefiting states through bilateral border police training and funding.2302German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Christine Buchholz, weiterer Abgeordneter und der Fraktion DIE LINKE, 19/10/2015, https://kleineanfragen.de/bundestag/18/6450-vorbereitungen-zur-valletta-conference-on-migration-in-malta-zur-kontrolle-unerwuenschter-migration, retrieved on 01/10/2020 [https://web.archive.org/web/20201007194555if_/https://kleineanfragen.de/bundestag/18/6450-vorbereitungen-zur-valletta-conference-on-migration-in-malta-zur-kontrolle-unerwuenschter-migration], p. 6. It also stated that this could only happen once the GNA was formed and the “security situation would allow this.”2303German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Christine Buchholz, weiterer Abgeordneter und der Fraktion DIE LINKE, 19/10/2015, https://kleineanfragen.de/bundestag/18/6450-vorbereitungen-zur-valletta-conference-on-migration-in-malta-zur-kontrolle-unerwuenschter-migration, retrieved on 01/10/2020 [https://web.archive.org/web/20201007194555if_/https://kleineanfragen.de/bundestag/18/6450-vorbereitungen-zur-valletta-conference-on-migration-in-malta-zur-kontrolle-unerwuenschter-migration], p. 6.
III2016 - Operation Sophia
In the same above-mentioned response to parliamentary questions, the Government also stated that in case a uniform Libyan government would approach the EU with a request to train and support Libyan maritime security forces, Germany would consider this.2304German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Jan van Akten, weiterer Abgeordneter und der Fraktion DIE LINKE, 26/02/2016, http://dipbt.bundestag.de/dip21/btd/18/077/1807724.pdf, retrieved on 01/10/2020, [https://web.archive.org/web/20181125125918/http://dipbt.bundestag.de/dip21/btd/18/077/1807724.pdf], p. 16. This was in response to an inquiry made by an opposition party to the Federal Government. The statement was made a few months before a Memorandum of Understanding was signed between the Operation Commander of Sophia and the Commander of the Libyan coastguard, in August 2016.2305EUNAVFOR MED Operation SOPHIA, Operation SOPHIA: signed the agreement on Libyan Coast Guard and Navy Training, 23/08/2016, https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/, retrieved 01/06/2020 [https://web.archive.org/web/20201007195001/https://www.operationsophia.eu/operation-sophia-signed-the-agreement-on-libyan-coast-guard-and-navy-training/] In the meantime, Germany had advocated for an expansion of Sophia’s mandate at the Foreign Ministers Council meeting on 18 April 2016.2306German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfgang Gehrcke, Jan van Aken, weiterer Abgeordneter und der Fraktion DIE LINKE, 31/05/2016, http://dipbt.bundestag.de/dip21/btd/18/085/1808593.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007195102/http://dipbt.bundestag.de/dip21/btd/18/085/1808593.pdf], p. 8. In the same month, Foreign Minister Steinmeier had met, along with his French counterpart, with the Libyan Prime Minister Fayez Al-Sarraj in Tripoli, “express[ing] full support for Libya… determined to provide substantial assistance to help the Government of National Accord.”2307Ministère des affaires étrangères, Libya – Visit by Jean-Marc Ayrault and Frank-Walter Steinmeier to Tripoli (16 April 2016), 16/04/2016, https://www.diplomatie.gouv.fr/en/country-files/libya/news/2016/article/libya-visit-by-jean-marc-ayrault-and-frank-walter-steinmeier-to-tripoli-april, retrieved on 01/10/2020 [https://web.archive.org/web/20201007195404/https://www.diplomatie.gouv.fr/en/country-files/libya/news/2016/article/libya-visit-by-jean-marc-ayrault-and-frank-walter-steinmeier-to-tripoli-april] 2308“France and Germany back Libya unity cabinet,” BBC, 16/04/2016, https://www.bbc.com/news/world-africa-36065375, retrieved on 24/04/2025 Reportedly, “possibilities of financing of projects and support for the establishment of national security structures in Libya” were also discussed.2309“Steinmeier zu Überraschungsbesuch in Tripolis,” Frankfurter Allgemeine Zeitung, 14/04/2016, https://www.faz.net/aktuell/politik/ausland/libyen-steinmeier-zu-ueberraschungsbesuch-in-tripolis-14182530.html, retrieved on 01/10/2020 [https://web.archive.org/web/20160724171117/http://www.faz.net/aktuell/politik/ausland/libyen-steinmeier-zu-ueberraschungsbesuch-in-tripolis-14182530.html]
IV2017 - Involvement in the training & funding of the Libyan coastguard
In January 2017, Merkel stated that the EU could not strike a deal with Libya similar to the one with Turkey until the Libyan government would be more stable.2310“Merkel reagiert auf KZ.ähnliche Zustände in Flüchtlingslager in Libyen,” Euroactiv, 30/01/2017, https://www.euractiv.de/section/eu-aussenpolitik/news/merkel-reagiert-auf-kz-aehnliche-fluechtlingslager-in-libyen/, retrieved on 17/05/2020 [https://web.archive.org/web/20160724171117/http://www.faz.net/aktuell/politik/ausland/libyen-steinmeier-zu-ueberraschungsbesuch-in-tripolis-14182530.html]
In February 2017, Merkel, the Interior Ministry and the Foreign Ministry, received a diplomatic cable from the German Embassy in Niger which described the Libyan detention facilities as a place with “concentration camp-like conditions.”2311“Merkel reagiert auf KZ.ähnliche Zustände in Flüchtlingslager in Libyen,” Euroactiv, 30/01/2017, https://www.euractiv.de/section/eu-aussenpolitik/news/merkel-reagiert-auf-kz-aehnliche-fluechtlingslager-in-libyen/, retrieved on 17/05/2020 [https://web.archive.org/web/20160724171117/http://www.faz.net/aktuell/politik/ausland/libyen-steinmeier-zu-ueberraschungsbesuch-in-tripolis-14182530.html] 2312Interviewee I61The information contained in this cable was not new but rather a more drastically stated account of what the German government was already well aware of.2313Interviewee I61
Well before the conclusion of the Malta Declaration, in which the European Council affirmed its commitment to fund and train the Libyan coastguard, Merkel and her ministers were informed about the conditions “migrants” in Libya suffered from and the general situation in the country.2314Interviewee I22 2315Interviewee I61 And weeks after the conclusion of the Malta Agreement, Merkel advocated for a Turkey-style refugee pact with Libya.2316“Libyen soll Flüchtling aufhalten,” Tagesschau, 03/02/2017, https://www.tagesschau.de/ausland/eu-fluechtlinge-145.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201007195700/https://www.euractiv.de/section/eu-aussenpolitik/news/merkel-reagiert-auf-kz-aehnliche-fluechtlingslager-in-libyen/]
Furthermore, evidence suggests that Foreign Minister Sigmar Gabriel visited a detention center in Libya in summer 2017,2317“Wo Europa von Afrika lernen kann,” Handelsblatt, 09/08/2017, https://www.handelsblatt.com/politik/deutschland/sigmar-gabriel-in-uganda-wo-europa-von-afrika-lernen-kann/20167796.html?ticket=ST-10341437-EQBeLaw6i5ZUXX95gAcv-ap4, retrieved on 07/10/2020 [https://web.archive.org/web/20201007200013/https://www.handelsblatt.com/politik/deutschland/sigmar-gabriel-in-uganda-wo-europa-von-afrika-lernen-kann/20167796.html?ticket=ST-4961372-gtjWYMWpf4MMIXmqQn64-ap1] and later the detention center Trik Al Sikka, in which abuse of “migrants” was rampant in June 2018,2318German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ulla Jelpke, Frank Tempel, Jan van Aken, weiterer Abgeordneter und der Fraktion DIE LINKE, 19/09/2017, http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf, retrieved on 01/06/2020 [https://web.archive.org/web/20201007200055/http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf], p. 7. and that the German ambassador in Tripoli also personally visited detention centers to assess the human rights situation.2319German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ulla Jelpke, Frank Tempel, Christine Buchholz, weiterer Abgeordneter und die Fraktion DIE LINKE, 29/05/2017, http://dipbt.bundestag.de/dip21/btd/18/125/1812555.pdf, retrieved 01/10/2020 [https://web.archive.org/web/20201007200258/http://dipbt.bundestag.de/dip21/btd/18/125/1812555.pdf], p. 6.
A German official admitted that the human rights situation in Libya was discussed in the context of training the Libyan coastguard, but ultimately the “answer was never that if the conditions in the holding facilities are horrific we will now help migrants to get to Europe quickly. We’ll rather try to improve the conditions.”2320Interviewee I22 Yet the understanding was that to improve the conditions in the Libyan camps, “the civil war has to be resolved, which hasn’t happened to this day.”2321Interviewee I22
German officials were thus also aware that improving the conditions was unachievable, but nonetheless grounded its justification for funding and training the Libyan coastguard in this ‘intention’. In fact, evidence suggests that Libya intentionally aggravated conditions in the detention camps, inter alia to improve its negotiating position with the EU.2322German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ulla Jelpke, Frank Tempel, Jan van Aken, weiterer Abgeordneter und der Fraktion DIE LINKE, 19/09/2017, http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf, retrieved on 01/06/2020 [https://web.archive.org/web/20201007200055/http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf], p. 2.
In March 2018, the government also responded to criticisms of crimes committed in Libya against “migrants” by stating that the conditions in Libya resembled a civil war and that the monopoly on violence of the state was limited. It further stated that Libya was politically and militarily fragmented and that the limited state control and functioning institutions in Libya made the protection of the civilian population, particularly refugees and “migrants”, difficult2323German Government, Antwort der Bundesregierung auf die Kleine Anfrage – Drucksache 19/670 – Seenotrettung von Bootflüchtlingen vor der libyschen Küste, 21/03/2018, https://polit-x.de/documents/761932/bund/bundestag/drucksachen/antwort-2018-03-27-auf-die-kleine-anfrage-drucksache-19670-seenotrettung-von-bootsfluchtlingen-vor-der-libyschen-kuste, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200649/https://polit-x.de/de/documents/761932/bund/bundestag/drucksachen/antwort-2018-03-27-auf-die-kleine-anfrage-drucksache-19670-seenotrettung-von-bootsfluchtlingen-vor-der-libyschen-kuste], p. 4.
Rather than offering an explanation for why it considered Libya a safe port then, the government only noted that there was no existing internal legal framework for the effective protection of asylum seekers.2324German Government, Antwort der Bundesregierung auf die Kleine Anfrage – Drucksache 19/670 – Seenotrettung von Bootflüchtlingen vor der libyschen Küste, 21/03/2018, https://polit-x.de/documents/761932/bund/bundestag/drucksachen/antwort-2018-03-27-auf-die-kleine-anfrage-drucksache-19670-seenotrettung-von-bootsfluchtlingen-vor-der-libyschen-kuste, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200649/https://polit-x.de/de/documents/761932/bund/bundestag/drucksachen/antwort-2018-03-27-auf-die-kleine-anfrage-drucksache-19670-seenotrettung-von-bootsfluchtlingen-vor-der-libyschen-kuste], pp. 4-5. To justify its cooperation and subcontracting of migration policies with a failed state such as Libya, the government stated in October 2019 that third country cooperation in what regarded questions of border protection and migration management was considered in close communication with diplomatic representations and under consideration of human rights standards.2325German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Luise Amtsberg, Uwe Kekeritz, Agnieszka Brugger, weiterer Abgeordneter und der Fraktion BÜDNNIS 907 DIE GRÜNEN, 28/10/2019, https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200948if_/https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten], p. 5. It further stated that “a need for dialogue or cooperation with regards to migration can also be derived from a difficult human rights legal situation.”2326German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Luise Amtsberg, Uwe Kekeritz, Agnieszka Brugger, weiterer Abgeordneter und der Fraktion BÜDNNIS 907 DIE GRÜNEN, 28/10/2019, https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200948if_/https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten], p. 4.
In the meantime, Germany funded the training of the Libyan coastguard,[1] provided personnel and material support for the first phase of the Libyan coastguard training,2327German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Wolfang Gehrcke, Sevim Dagdelen, weiterer Abgeordneter und der Fraktion DIE LINKE, 13/10/2016, http://dipbt.bundestag.de/dip21/btd/18/099/1809965.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007201118/http://dipbt.bundestag.de/dip21/btd/18/099/1809965.pdf], pp. 4-6. and its officials were stationed in the Headquarters of EUNAVFOR MED in Rome, Italy.2328German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunkio, Dr. Alexander S. Neu, Jan van Aken, u.a. und der Fraktion DIE LINKE, 03/08/2019, https://www.andrej-hunko.de/start/download/dokumente/654-militaerische-eu-mission-eunavfor-med-zur-migrationskontrolle-im-mittelmeer/file, retrieved on 01/10/2020, p. 3 [https://web.archive.org/web/20201007201346/https://www.andrej-hunko.de/start/download/dokumente/654-militaerische-eu-mission-eunavfor-med-zur-migrationskontrolle-im-mittelmeer/file], p. 3.
The German government had extensive and first-hand knowledge of the crimes against humanity committed against “migrants” in Libya. It fully accepted and was complicit in these crimes by providing the would-be victims pursuant to the German involvement in EU’s 2nd policy of ‘refoulement by proxy’. At no stage it tried to veto these developments, on the contrary, it was part of the leading forces pushing for and contributing to this policy.
[1] See Subchapter ‘Overview financial contributions’.
VCriminalization of NGOs
Public prosecutors in Germany are part of the executive and subject to instructions by the Minister of Justice.2329THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] The European Court of Justice assessed that the public prosecution in Germany is subject to substantial external (political) influence due to the “Weisungsrecht.”2330CJEU, German public prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European arrest warrant, PRESS RELEASE 68/9, 27/05/2019, https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068en.pdf, retrieved on 01/10/2020, [https://web.archive.org/web/20201007204350/https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068de.pdf] It is thus not “independently organized” and falls under the administrative direction of the Minister of Justice.2331THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] Crucially, Weisungsrecht means that the public prosecutors have to “follow the instructions of their superiors.”2332THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] The state prosecution and the Minister of Justice are accordingly empowered to issue instructions in single cases in a discretionary manner which is not visible to the public.2333THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] This influence can be exerted through direct instructions or suggestive recommendations.2334THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] The public prosecution is, however, enabled to voice concerns about the legality of any given instruction.2335THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] All instructions are bound to comply with German law.2336THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] This Weisungsrecht is limited because the instructions can only be given after appropriate assessment of the facts.2337THOMAS, J., “Die deutsche Staatsanwaltschaft – ‚objektivste Behörder der Welt‘ oder doch nur ein Handlanger der Politik?,” Kriminalpolitische Zeitschrift, May 2020, https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203933/https://kripoz.de/2020/03/18/die-deutsche-staatsanwaltschaft-objektivste-behoerde-der-welt-oder-doch-nur-ein-handlanger-der-politik/] The Ministers of Justice at the time were Heiko Maas (2017), Katharina Barley (June 2019), and Christine Lambrecht (June 2019-2021).
In June 2017, the Dresden public prosecution initiated an investigation into Mission Lifeline founders Axel Steier and Sascha Pietsch, after someone reported them for “smuggling foreigners into the country.”2338Interviewee I8 It is unclear who specifically worked on the case but the Dresden public prosecutor at the time was Erich Wentzlick.2339“Rövekamp neuer Leiter der Staatsanwaltschaft Dresden,“ Dresdner Neuste Nachrichten, 19/12/2017, https://www.dnn.de/Dresden/Lokales/Roevekamp-neuer-Leiter-der-Staatsanwaltschaft-Dresden, retrieved on 01/10/2020 [https://web.archive.org/web/20201007201612/https://www.dnn.de/Dresden/Lokales/Roevekamp-neuer-Leiter-der-Staatsanwaltschaft-Dresden] The investigation was closed relatively quickly. Sea-Watch stated at the time that this was the first legal proceeding in Germany against rescue NGOs.2340MEISNER, M., “Ermittlungen gegen Dresdner Seenotretter,” Der Tagesspiegel, 26/06/2017, https://www.tagesspiegel.de/politik/fluechtlinge-im-mittelmeer-ermittlungen-gegen-dresdner-seenotretter/19979384.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201007201842/https://www.tagesspiegel.de/politik/fluechtlinge-im-mittelmeer-ermittlungen-gegen-dresdner-seenotretter/19979384.html]
A month later, at a meeting of the Interior Ministers of France, Italy, and Germany (de Maizière), and the Commissioner for Migration and Home Affairs, all participants agreed to work on a code of conduct for NGOs,2341Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/archives/archives-ministres-de-l-interieur/archives-gerard-collomb-mai-2017-octobre-2018/communiques-du-ministre/solidarite-avec-l-italie-face-a-la-crise-migratoire, retrieved on 01/10/2020 [https://web.archive.org/web/20200930094109/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire] in addition to strengthening support for the LYCG by increasing training activities and providing additional financial support.2342Ministère de l’intérieur, Solidarité avec l’Italie face à la crise migratoire, 03/07/2017, https://www.interieur.gouv.fr/archives/archives-ministres-de-l-interieur/archives-gerard-collomb-mai-2017-octobre-2018/communiques-du-ministre/solidarite-avec-l-italie-face-a-la-crise-migratoire, retrieved on 01/10/2020 [https://web.archive.org/web/20200930094109/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Gerard-Collomb-mai-2017-octobre-2018/Communiques-du-ministre/Solidarite-avec-l-Italie-face-a-la-crise-migratoire]
During the June 2018 Council meeting, there was an intense discussion surrounding the criminalization of NGOs and the warning issued to not obstruct “rescue” operations by the LYCG. The discussion led to multiple revision sessions of the Conclusions, with Merkel being more involved in the drafting than usual.2343LUDLOW, P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press The various mini-summits that preceded the Council, organized at Merkel’s behest with Juncker’s support and without the presidency, led to a more politicized and hardened statement.2344LUDLOW, P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, pp. 20-21.
In April 2019, Mare Liberum’s vessel was “landlocked“ by a directive issued by the “Berufsgenossenschaft Verkehr” of the German Ministry of Transport2345LICHDI, J., Wie Verkehrsminister Andreas Scheuer (CSU) Seenotrettung im Mittelmeer verhindern will zur Änderung der Schiffssicherheitsverordnung, Mission Lifeline, 09/06/2020, https://mission-lifeline.de/wie-verkehrsminister-andreas-scheuer-seenotrettung-verhindern-will/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007202245/https://mission-lifeline.de/wie-verkehrsminister-andreas-scheuer-seenotrettung-verhindern-will/] – therefore no longer allowed to operate – because it was suddenly treated as a “rescue ship” and therefore in the same category as merchant ships rather than a recreational boat, which was the category accorded to it previously.2346Mare Liberum, Oberverwaltungsgericht bestätigt: Festsetzung der Mare Liberum nicht rechtens, 12/09/2019, https://mare-liberum.org/de/oberverwaltungsgericht-bestatigt-festsetzung-der-mare-liberum-nicht-rechtens/, retrieved on 16/04/2021 [https://web.archive.org/web/20240725183403/https://mare-liberum.org/de/oberverwaltungsgericht-bestatigt-festsetzung-der-mare-liberum-nicht-rechtens/] At the time, the Ministry was led by Andreas Scheuer and Hamburg’s lead public prosecutor was Dr. Jörg Froehlich.2347Hamburg Ministry of Justice, Behördenleiter, https://justiz.hamburg.de/generalstaatsanwalt/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007202730/https://justiz.hamburg.de/generalstaatsanwalt/] Mare Liberum won their lawsuit2348Mare Liberum, Oberverwaltungsgericht bestätigt: Festsetzung der Mare Liberum nicht rechtens, 12/09/2019, https://mare-liberum.org/de/oberverwaltungsgericht-bestatigt-festsetzung-der-mare-liberum-nicht-rechtens/, retrieved on 16/04/2021 [https://web.archive.org/web/20240725183403/https://mare-liberum.org/de/oberverwaltungsgericht-bestatigt-festsetzung-der-mare-liberum-nicht-rechtens/] in the Higher Administrative Court of Hamburg.2349Hamburg Ministry of Justice, Einsatz eines Schiffes zu Sport- und Freizeitzwecken; humanitäre und gemeinnützige Zwecke; Erforderlichkeit eines Schiffsicherheitszeugnisses, http://www.landesrecht-hamburg.de/jportal/portal/page/bsharprod.psml?showdoccase=1&doc.id=MWRE190003539&st=ent, retrieved on 01/10/2020 [https://web.archive.org/web/20201007203806/https://mission-lifeline.de/wie-verkehrsminister-andreas-scheuer-seenotrettung-verhindern-will/]
In June 2020, the “Berufsgenossenschaft Verkehr” of the German Ministry of Transport2350LICHDI, J., Wie Verkehrsminister Andreas Scheuer (CSU) Seenotrettung im Mittelmeer verhindern will zur Änderung der Schiffssicherheitsverordnung, Mission Lifeline, 09/06/2020, https://mission-lifeline.de/wie-verkehrsminister-andreas-scheuer-seenotrettung-verhindern-will/, retrieved on 01/10/2020 [https://web.archive.org/web/20201007202245/https://mission-lifeline.de/wie-verkehrsminister-andreas-scheuer-seenotrettung-verhindern-will/] – still led by Scheuer – changed the legal requirements for “security standards” for rescue NGOs, making it much harder - almost impossible - to obtain the necessary authorization to continue their work. Further complicating the situation, the law does not provide a transition phase for older ships to adapt to the new standards, which is an uncommon practice. The NGOs Mare Liberum, Mission Lifeline & Rescueship were thus incapacitated by these new legal requirements communicated by the German Ministry of Transport in June 2020.2351Mare Librum, Verkehrsministerium verhindert Einsatz für Geflüchtete, 09/06/2020, https://mare-liberum.org/2020/06/09/verkehrsministerium-verhindert-einsatz-fuer-gefluechtete/, retrieved on 26/06/2020 [https://web.archive.org/web/20200626074143/https://mare-liberum.org/2020/06/09/verkehrsministerium-verhindert-einsatz-fuer-gefluechtete/] This came after a similar law had been enacted in the Netherlands.2352Sea-Watch , Dutch government blocks Sea-Watch 3 and other NGO ships with a new policy, citing concerns for ‘safety,’ while people are left to drown, 02/04/2019, https://sea-watch.org/en/dutch-government-blocks-sea-watch-3/, retrieved on 01/10/2020 [https://web.archive.org/web/20201008145246/https://sea-watch.org/en/dutch-government-blocks-sea-watch-3/]
Germany was therefore one of several Member States which personally took it upon itself to obstruct rescue NGOs from bridging the lethal gap in rescue capacities created in the Mediterranean by EU policies. This campaign resulted in further increase in drownings and the interception, refoulement and abusive detention of “migrants” by the Libyan coastguard.
VIOverview of financial contributions
In 2017, Foreign Minister Sigmar Gabriel stated that Germany funded the majority of the EU contributions to the Libyan migration system, 45 million Euro of a total of 100 million Euro.2353German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Ulla Jelpke, Frank Tempel, Jan van Aken, weiterer Abgeordneter und der Fraktion DIE LINKE, 19/09/2017, http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf, retrieved on 01/06/2020 [https://web.archive.org/web/20201007200055/http://dipbt.bundestag.de/dip21/btd/18/136/1813603.pdf], p. 2.
In 2018, the Government stated it had contributed 182,5 million Euro to the EUTF.2354German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Luise Amtsberg, Uwe Kekeritz, Agnieszka Brugger, weiterer Abgeordneter und der Fraktion BÜDNNIS 907 DIE GRÜNEN, 28/10/2019, https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200948if_/https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten], p. 16. A further 48 million Euro were provided for jointly financed projects with the EUTF which were implemented by GIZ, the German development agency.2355German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Luise Amtsberg, Uwe Kekeritz, Agnieszka Brugger, weiterer Abgeordneter und der Fraktion BÜDNNIS 907 DIE GRÜNEN, 28/10/2019, https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200948if_/https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten], p. 16. Within this context, for example, Germany provided 3 million euros for the project “Programme for the Direction of mixed migration movements in Libya.”2356German Government, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Luise Amtsberg, Uwe Kekeritz, Agnieszka Brugger, weiterer Abgeordneter und der Fraktion BÜDNNIS 907 DIE GRÜNEN, 28/10/2019, https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten, retrieved on 01/10/2020 [https://web.archive.org/web/20201007200948if_/https://kleineanfragen.de/bundestag/19/14665-die-migrationspolitische-kooperation-der-bundesregierung-und-der-europaeischen-union-mit-afrikanischen-staaten], p. 16. Through the EUTF, Germany has further contributed 50 million Euro to “recovery, stability, and socio-economic development in Libya” for the 2018-2021 period.2357EU Emergency Trust Fund for Africa, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/region/north-africa/libya/recovery-stability-and-socio-economic-development-libya_en, retrieved on 31/03/2021 [https://web.archive.org/web/20220427130231/https://ec.europa.eu/trustfundforafrica/sites/default/files/t05-eutf-noa-ly-04_fin_9.pdf]
DKey individuals
Suspects
-
Angela Merkel>
2005–2021
GermanyChancellor
-
Christoph Heusgen>
2016–2019
GermanyForeign Policy Advisor
-
Erich Wentzlick>
2007–2017
GermanyPublic Prosecutor, Dresden
-
Frank Walter Steinmeier>
2013–2017
GermanyGerman Minister of Foreign Affairs
-
Kai Krueger>
2017–Present
GermanyHead of Subdivision for Ship Security
-
Nikolaus Meyer-Landrut>
2014–2015
GermanyGerman Sherpa
-
Peter Altmaier>
2014–2018
GermanyChief of Staff of Angela Merkel
-
Sigmar Gabriel>
2017–2018
GermanyMinister of Foreign Affairs
-
Thomas de Maizière>
2013–2018
GermanyInterior Minister
-
Uwe Corsepius>
2015–2022
GermanySherpa
Involved
-
Alexander Dobrindt>
2013–10/2017
GermanyTransport Minister
-
Edgar Lenski>
2019
GermanyCoordination of EU Policy, Office of the Chancellor
-
Georg Felsheim>
2014
GermanyCoordination of EU Policy, Office of the Chancellor
-
Johannes Haindl>
2014–2015
Council of the European UnionEuropean External Action Service (EEAS)GermanyAmbassador to Political and Security Committee
-
Michael Clauss>
08/2018–
GermanyAmbassador to Coreper II
-
Nikola Gilhoff>
2019
GermanyAdvisor European Law, Office of the Chancellor
-
Andreas Scheuer>
2018–2021
GermanyTransport Minister
-
Christian Buck>
2016–2018
GermanyAmbassador to Libya
-
Christian Much>
2013–2016
GermanyAmbassador to Libya
-
Christian Schmidt>
10/2017–03/2018
GermanyTransport Minister
-
Guido Peruzzo>
2008–01/2015
GermanyCouncil of the European UnionAmbassador to Coreper I
-
Heiko Maas>
03/2018–2021
GermanyThe European CouncilForeign Minister
-
Tania von Uslar-Gleichen>
2014
GermanyRelations to Member States, Office of the Chancellor
- 2215Interviewee I22
- 2216German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf], p. 85.
- 2217German Office of the Chancellor, Organisationsplan, 20/04/2016, https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes, retrieved on 01/10/2020 [https://web.archive.org/web/20250424122641/https://expydoc.com/doc/8959678/organisationsplan-des-bundeskanzleramtes]
- 2218German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 15/08/2019 https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185644/https://www.bundesregierung.de/resource/blob/975196/773044/965a4d1b633cb6529246be5f4b016d8d/druckversion-organigramm-bkamt-data.pdf?download=1]
- 2219German Office of the Chancellor, Organisationsplan des Bundeskanzleramtes, 01/08/2014, https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf, retrieved on 01/10/2020 [https://web.archive.org/web/20201007185321/https://fragdenstaat.de/anfrage/organsationsplane-bkamt-seit-1949/28660/anhang/ifg_organigramme_bk.pdf], p. 85.
IX
Spain
AExecutive Summary
Spain is a central actor in European migration policy who had long pushed for the externalization of borders at all costs. In the process, its own actions became a blueprint for the EU’s migration policies. From 2006, Spain began developing Commission-funded maritime border “control” projects focused on externalization and third country cooperation, including joint patrols, training and equipment of at the time Moroccan border agents, and in close collaboration with Frontex. This was accompanied by efforts to build a transnational shared surveillance and communication network.
Arising out of these efforts, in 2013, Spain, in cooperation with the European Commission and Frontex, began actively designing and implementing the Seahorse Mediterranean project serving two crucial functions: to build the capacities of the Libyan coastguard and to realize Libyan access to European maritime surveillance systems in the form of a “Seahorse Mediterranean Network.” Early on, these projects instrumentalized Libya as a ruthless and lethal interceptor of vulnerable “migrants” attempting to reach safety in Europe, providing the blueprint for the coming years.
Against the backdrop of this initiative, Spain pushed for the replacement of the large-scale search and rescue Operation Mare Nostrum with the drastically reduced Triton in a joint letter to Commissioner Malmström. It continued to pressure the European Union to ensure that border control missions were prioritized over search and rescue. Within this context, Spain was likely a main actor in the initial development and design of Operation Sophia. The later addition of the training of the Libyan coastguard undoubtedly enjoyed full support and advocacy by the demonstratively Libya-oriented Spanish government. As such, Spain substantially contributed to the implementation of Operations Triton, Sophia, and Themis through the provision of funds, personnel and materials. It provided training to the Libyan coastguard and hosted sessions in Spain. All of these actions were taken with full knowledge of the detention, torture, rape, enslavement, and killings faced by “migrants” returned to Libya. In line with its long history of border externalization policies, the objective of keeping “migrants” from reaching Spanish shores was considered more important than the safety and lives of vulnerable people.
Adding to this devastating policy, Spain took part in the persecution of NGOs for example by blocking their vessels from leaving its ports (and in at least one incident disembark in Spain) or by endorsing Italy’s Code of Conduct.
These activities were facilitated by Spain’s early and proactive investment in the necessary surveillance infrastructure including the proliferation of EUROSUR and its coordination and execution of joint operations with Frontex. Spanish officials played key roles in European agencies charged with the elaboration and implementation of the described policies.
BDecision-making Structures
Spain is uniquely positioned within the complex of migration policy as it is the closest European country to Africa and the only country of the EU with land frontiers with Africa, in Ceuta and Melilla.2358Vox, Spain / Morocco, Africa’s gateway to Europe, https://www.vox.com/a/borders/spain-morocco, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153348/https://www.vox.com/a/borders/spain-morocco]
Spain is a constitutional monarchy in which the monarch is an apolitical Head of State.2359Rodriguez V„ Spain, Britannica, 20/09/2020, https://www.britannica.com/place/Spain, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153103/https://www.britannica.com/place/Spain] The Prime Minister is the Head of Government and forms the executive branch together with the PM’s deputy and the members of cabinet.2360Rodriguez V„ Spain, Britannica, 20/09/2020, https://www.britannica.com/place/Spain, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153103/https://www.britannica.com/place/Spain]
Between 2014 and 2019, there were three Spanish governments. The first two were headed by Mariano Rajoy, leader of the conservative People's Party who became Prime Minister in December 2011 and was re-elected in June 2016.2361ELDRIDGE, A., “Mariano Rajoy,” Britannica, 23/03/2020, https://www.britannica.com/biography/Mariano-Rajoy, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153559/https://www.britannica.com/biography/Mariano-Rajoy] In June 2018, Rajoy was ousted through a vote of no confidence.2362ELDRIDGE, A., “Mariano Rajoy,” Britannica, 23/03/2020, https://www.britannica.com/biography/Mariano-Rajoy, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153559/https://www.britannica.com/biography/Mariano-Rajoy] A new government was formed under the direction of Pedro Sánchez, leader of the Spanish Socialist Workers Party (PSOE).2363JONES, S., “Spain’s ruling socialists strike coalition deal with Podemos,” The Guardian, 12/11/2019, https://www.theguardian.com/world/2019/nov/12/spain-ruling-socialists-strike-coalition-deal-with-podemos-sanchez, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153746/https://www.theguardian.com/world/2019/nov/12/spain-ruling-socialists-strike-coalition-deal-with-podemos-sanchez]
Within Spain’s governmental organization structure, the Ministries of the Interior and of Foreign Affairs have played a crucial role in the crafting and implementation of migration policies.
IThe Ministry of the Interior
The Ministry of the Interior is a central actor in the development of migration policy within Spain and the position it communicates to the EU. Its Ministers participated in all relevant Council meetings mentioned in this Communication. This Ministry is also in charge of Spanish security forces referred to in the following report as well as coordination with Frontex.
Over the relevant period, Ministers of the Interior have changed numerous times. Under Mariano Rajoy, the position was held by Jorge Fernandez Diaz (22 December 2011 – 4 November 2016) and Juan Ignacio Zoido Alvarez (4 November 2016 – 1 June 2018). Under Pedro Sanchez, and since 7 June 2018, Fernando Grande-Marlaska has held the position.
The relevant divisions within the Ministry of the Interior are the Secretariat of State for Security, supported by the General Directorates of the Police, of the Guardia Civil, and for International Relations and Foreigners.2364INOPOL, Ministerio del Interior: Nuevo Esquema, 30/07/2018, https://www.inopol.es/wp-content/uploads/MI-AGOSTO.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200530202901/https://inopol.es/ministerio-del-interior-nuevo-esquema-para-descargar/] The latter oversees the General Sub-Directorate for International Relations, Immigration, and Foreigners.2365INOPOL, Ministerio del Interior: Nuevo Esquema, 30/07/2018, https://www.inopol.es/wp-content/uploads/MI-AGOSTO.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200530202901/https://inopol.es/ministerio-del-interior-nuevo-esquema-para-descargar/] Another relevant body is the Under-Secretariat of the Interior overseeing the General Directorate for Internal Policy. The Office for Asylum and Refuge is grouped under the latter.2366INOPOL, Ministerio del Interior: Nuevo Esquema, 30/07/2018, https://www.inopol.es/wp-content/uploads/MI-AGOSTO.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200530202901/https://inopol.es/ministerio-del-interior-nuevo-esquema-para-descargar/]
The Secretariat of State for Security is tasked with ensuring the protection of fundamental rights, commanding the Spanish security forces as well as coordinating international police cooperation, including the coordination of dispositives against human trafficking.2367Ministerio del Interior, Secretaría de Estado de Seguridad, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154440/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad] They further plan and coordinate security-related missions.2368Ministerio del Interior, Secretaría de Estado de Seguridad, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154440/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad]
The General Directorate of the Guardia Civil organizes, directs, coordinates and executes Guardia Civil missions.2369Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] Its head directly commands the Guardia Civil and reports to the Secretary of State for Security.2370Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] It is further responsible for maintaining relations with foreign information bodies and is in charge of drafting the institutional strategy.2371Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] The Border Command and Maritime Police fall under its command as well.2372Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] Assisting the Director and planning the directorate’s activities is the Operational Deputy Director.2373Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] This person oversees international cooperation and collaboration with foreign police corps, international organizations and agencies.2374Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] Within this Directorate, the General Staff supports and assists the Border Command and Maritime Police2375Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] As part of these duties it provides the necessary expertise.2376Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] Lastly, this Directorate is supported by the Secretariat for International Cooperation.2377Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] The Operations Command carries out the planning and coordination of the operational services of the Guardia Civil.2378Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil]
Highly relevant to this report, the Border Command and Maritime Police is tasked with dealing with “irregular” immigration as well as controlling “irregular” flows.2379Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] It supervises the headquarters of Coasts and Maritime Police including the direction and coordination of the operational activities of Frontex led by the Guardia Civil and the National Coordination Center of Spain in EUROSUR.2380Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil]
Under the General Directorate of the Guardia Civil, the “Jefatura fiscal y de fronteras” is another highly relevant body. Tasked with border control and protection, it also oversees “irregular” migration.2381Ministerio del Interior, Dirección General de la Guardia Civil, http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154626/http://www.interior.gob.es/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-la-guardia-civil] Within the framework of Spain’s cooperation with the EU, the “Jefatura” was the coordinator of the Seahorse Mediterranean program, as described below.2382European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 7.
The General Directorate for International Relations and Foreigners is responsible for coordinating the external action of the Ministry of the Interior.2383Ministerio del Interior, Dirección General de Relaciones Internacionales y Extranjería, https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/ retrieved on 22/09/2020 [https://web.archive.org/web/20250216045505/https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/] It is tasked with monitoring the actions of the European Union affecting the Ministry of the Interior; preparing the Spanish position within EU bodies on relevant matters; coordinating international police cooperation; coordination with Frontex; planning and coordination of migration strategy, especially related to transit countries and the EU; and the negotiation of projects financed by European funds.2384Ministerio del Interior, Dirección General de Relaciones Internacionales y Extranjería, https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/ retrieved on 22/09/2020 [https://web.archive.org/web/20250216045505/https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/]
It further comprises a General Sub-directorate for International Relations, Immigration and Foreigners. This Sub-directorate is responsible for the organization and preparation of international activities within its attributions; monitoring the migratory situation and preparing the corresponding proposals; and the coordination of actions with the Ministry of Foreign Affairs.2385Ministerio del Interior, Dirección General de Relaciones Internacionales y Extranjería, https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/ retrieved on 22/09/2020 [https://web.archive.org/web/20250216045505/https://www.interior.gob.es/opencms/es/el-ministerio/funciones-y-estructura/secretaria-de-estado-de-seguridad/direccion-general-de-relaciones-internacionales-y-extranjeria/]
IIThe Ministry of Foreign Affairs
The Ministry of Foreign Affairs, European Union and Cooperation is responsible for Spain’s external relations, including to the EU.2386Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Estructura, http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922155621/http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx] This includes preparatory work for Spain’s representation at multiple EU levels including the Council, the Coreper, the Political and Security Committee, and the Council’s other preparatory bodies. These were core elements of the development of the policies discussed in this communication.
Over the relevant time period, the Minister of Foreign Affairs changed multiple times. Under Mariano Rajoy, the position was held by José Manuel Garcia-Margallo y Marfil (21 December 2011 – 4 November 2016) and Alfonso Dastis (4 November 2016 – 7 June 2018). Under the Pedro Sanchez governement, the position was held by Joseph Borrell Fontelles (7 June 2018 – 30 November 2019), Margarita Robles (30 November 2019 – 13 January 2020), Arancha Gonzalez Laya (13 January 2020 – 12 July 2021).
The ministry further includes the following relevant bodies:
· The Secretariat of State of Foreign Affairs and for Ibero-America and the Carribean.
◦ The General Directorate for the Maghreb, the Mediterranean and the Middle East.
· The Secretariat of State for the European Union.
◦ The General Directorate for Integration and Coordination of General Affairs of the European Union.
· The Under-secretariat of Foreign Affairs, European Union and Cooperation.
◦ The Technical General Secretariat.
◦ The Directorate-General for the Foreign Service.2387Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Estructura, http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922155621/http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx]
· The Migration Affairs Office.2388Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Estructura, http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922155621/http://www.exteriores.gob.es/Portal/es/Ministerio/FuncionesEstructura/Estructura/Paginas/Inicio.aspx]
The Spanish ambassadors to Libya were, successively, Jose Riera Siquier (- 2014), Francisco de Miguel (October 2017 – July 2020), and Javier Garcia-Larrache (July 2020 –).
IIIThe Secretary of State for Migration
The Secretariat of State for Migrations formulates the Spanish migration policy.2389Ministerio de Política Territorial y Función Pública, Real Decreto 903/2018, de 20 de julio, por el que se desarrolla la estructura orgánica básica del Ministerio de Trabajo, Migraciones y Seguridad Social, 21/07/2018, https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160118/https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244] As such, it functions as an advisor to ministers representing Spain to the EU. The Secretariat of State for Immigration and Emigration was created in 2004 within the Ministry of Labour, Migration, and Social Security. It was initially headed by Consuelo Rumi (2004 – 2010) and Anna Terron (2010 – 2011). It was later replaced, between 2011 and 2018, by the General Secretariat of Immigration and Emigration, headed by Marina del Corral Téllez (2012 – 2018). It then became a department of the newly instated Secretariat of State for Migrations in 2018, which was headed again by Consuelo Rumi (20182390Ministerio de Trabajo, Migraciones y Seguridad Social, Real Decreto 525/2018, de 18 de junio, por el que se nombra Secretaria de Estado de Migraciones a doña María Consuelo Rumí Ibáñez, 19/06/2018, https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-8274, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160351/https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-8274] – 2020) and Hana Jalloul Muro (2020 – 2021).
The General Secretariat for Immigration and Emigration has since 2018 been included under the Secretariat of State for Migrations.2391Ministerio de Política Territorial y Función Pública, Real Decreto 903/2018, de 20 de julio, por el que se desarrolla la estructura orgánica básica del Ministerio de Trabajo, Migraciones y Seguridad Social, 21/07/2018, https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160118/https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244] It consists of four divisions which include a General Directorate for Migrations and a General Sub-directorate for Legal Affairs.2392Ministerio de Inclusión, Seguridad Social y Migraciones, Secretaría de Estado de Migraciones, http://www.mitramiss.gob.es/es/organizacion/missm/organigrama/migraciones/index.htm, retrieved on 15/06/2020 [https://web.archive.org/web/20200615212239/http://www.mitramiss.gob.es/es/organizacion/missm/organigrama/migraciones/index.htm] The General Directorate for Migrations is involved in European migration policies as one of its missions is to offer technical support for participation at the level of the European Union and other international organizations on migration.2393Ministerio de Política Territorial y Función Pública, Real Decreto 903/2018, de 20 de julio, por el que se desarrolla la estructura orgánica básica del Ministerio de Trabajo, Migraciones y Seguridad Social, 21/07/2018, https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160118/https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10244] As for the General Sub-directorate for Legal Affairs, among its missions are “The drafting of regulatory projects and the preparation of reports on matters related to immigration and emigration,” as well as “Technical support for participation in the European Union and other international organisations in the field of migrations.”2394Ministerio de Inclusión, Seguridad Social y Migraciones, Subdirección General de Régimen Juridico, www.inclusion.gob.es/es/organizacion/organigrama/migraciones/contenido/OM73.htm, retrieved on 15/10/2021 [https://web.archive.org/web/20210118203651/https://www.inclusion.gob.es/es/organizacion/organigrama/migraciones/contenido/OM73.htm]
The General Directors were successively Aurelio Miras Portugal (2012 - 2017), Ildefonso de la Campa Montenegro (2017 - 2018), and José Alarcón Hernández (2018 - 2020).
IVPermanent Representation of Spain to the European Union
The Permanent Representation of Spain to the European Union promotes the interests of Spain, defends Spanish policy positions and influences decisions.2395La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/] It reports daily to the ministries on relevant matters in the different European institutions.2396La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/]
The Permanent Representation carries out its mission on two levels. As any other Member State, Spain is represented in the Working Groups by the REPER Councilors (Spanish officials from different ministries), who express and defend its positions and negotiate accordingly.2397La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/] They further prepare the ambassadorial discussions.2398La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/] On the next level, the Ambassador Permanent Representatives meet at least once a week in the COREPER (I and II) meetings.2399La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/] They prepare the ministers’ meetings drawing from the Working Groups and negotiate positions to present draft decisions to the Council of Ministers, which are as finalized as possible on the basis of the issues already debated.2400La Representación Permanente de España ante la Unión Europea, ¿Quiénes somos?, https://es-ue.org/quienes-somos/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160810/https://es-ue.org/quienes-somos/] The Permanent Representation is also composed of an Ambassador Permanent Representative of Spain to the Political and Security Committee, in addition to the main Ambassador Permanent Representative.
The Ambassador Permanent Representatives of Spain were successively Alfonso María Dastis Quecedo (2011 – 2016) and Juan Pablo García-Berdoy y Cerezo (2016 – 2021).
CImplication in Criminal Policies
To understand Spanish participation in the discussed policies, it is necessary to examine its migration policies in the past decades. These reveal a consistent strategy to externalize migration control through third country cooperation. This model built the basis of Spain’s current actions in the Central Mediterranean, following up on years of intent to keep “migrants” from reaching Spanish shores through different means.
Between 2000 and 2010 Spain concluded a series of agreements with, among others, Ghana, Nigeria, Senegal, Mali, Niger, and Gambia.2401GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 131. These agreements fostered key elements later to be replicated by EU policy such as the expansion of diplomatic efforts in Sub-Saharan Africa:
“readmission agreements ; broader migratory cooperation agreements ; the use of both formal and informal agreements ; operational cooperation in the field of information exchange, liaison officers and common patrol operations ; migratory conditionality (linked to development aid, as well as other axes of relations).”2402GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 131.
Spain thus essentially built a blueprint for “outsourcing migration control” which it successfully pushed to be replicated in the broader EU migration control framework from 2013 onwards.2403GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 140. This externalization model was regarded as “an effective and efficient subcontracting model for migratory filtering”2404GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 133. which had stopped “the crossing of vessels to the Canary.”2405GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 133.
Beyond third country cooperation, Frontex has also long been a part of Spanish sea border policy. Frontex has run operations assisting Spain “with border security, identifying possible risks and threats and information exchange.”2406FRONTEX, Focus on Western Mediterreanean route: Frontex in Spain, 03/08/2017, https://web.archive.org/web/20231215052359/http://www.frontex.europa.eu/media-centre/news/focus/focus-on-western-mediterreanean-route-frontex-in-spain-isGpCE, retrieved on 26/08/2024 In a retrospective posted by Frontex in 2017, the Agency referred to one of these operations as aiming to “combat illegal immigration from North Africa and Sub-Sahara.”2407FRONTEX, Joint Operation Indalo 2012, 20/04/2017, https://www.frontex.europa.eu/media-centre/multimedia/photos/joint-operation-indalo-2012-gmP3Mi, retrieved on 23/08/2024 [https://web.archive.org/web/20240828091327/https://www.frontex.europa.eu/media-centre/multimedia/photos/joint-operation-indalo-2012-gmP3Mi]
These actions exerted considerable violence upon “migrants” and caused “collateral effects […] on the rights of migrants […] in transit areas.”2408GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 133. After the closure of this route, migration flows increased between Libya and Italy, “indicat[ing] a reorientation of the routes.”2409GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf], p. 133. Spain’s “successful” migration externalization policies which disregarded the safety of “migrants” thus directly led to an increase of crossings via the Central Mediterranean route.
Italy and the EU replicated these Spanish policies likely in the hopes of achieving the same results, despite their known consequences of causing “intolerable suffering for hundreds of thousands of [migrants], including the loss of life.”2410VARGAS, J., “De la crisis de los cayucos al record de pateras: mismas recetas fallidas para un Viejo problema,” Público, 19/10/2018, https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html, retrieved on 23/10/2020 [https://web.archive.org/web/20201023094051/https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html] These policies’ fallibility has also been demonstrated by the shifting numbers from Italy to Spain in 2016.2411VARGAS, J., “De la crisis de los cayucos al record de pateras: mismas recetas fallidas para un Viejo problema,” Público, 19/10/2018, https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html, retrieved on 23/10/2020 [https://web.archive.org/web/20201023094051/https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html]
As previously mentioned, the Italian-led closure of the Central Mediterranean route shifted the main migration paths back to Spain with the number of arrivals to Spain rising over those of Italy.2412VARGAS, J., “De la crisis de los cayucos al record de pateras: mismas recetas fallidas para un Viejo problema,” Público, 19/10/2018, https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html, retrieved on 23/10/2020 [https://web.archive.org/web/20201023094051/https://www.publico.es/sociedad/migraciones-crisis-cayucos-record-pateras-recetas-fallidas-viejo-problema.html] In the same year, 2018, the “death toll for people crossing the Western Mediterranean to reach the country increased four-fold in a year.”2413UNHCR, Desperate Journeys: Spain now main route to Europe for refugees and migrants, 29/01/2019, https://www.unhcr.org/news/videos/2019/1/5c5017de4/desperate-journeys-spain-now-main-route-to-europe-for-refugees-and-migrants.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161945/https://www.unhcr.org/news/videos/2019/1/5c5017de4/desperate-journeys-spain-now-main-route-to-europe-for-refugees-and-migrants.html]
At first, Pedro Sanchez pursued a different migration policy from his predecessor Rajoy and his Italian counterpart.2414ABGRALL, T., “Spain’s Sanchez welcomes migrants – with an eye on elections,” FRANCE24, 02/08/2018, https://www.france24.com/en/20180802-spain-migrants-policy-sanchez-elections-morocco-rajoy-aquarius, retrieved on 22/09/2020 [https://web.archive.org/web/20250317131918/https://www.france24.com/en/20180802-spain-migrants-policy-sanchez-elections-morocco-rajoy-aquarius] Sanchez presented himself as willing to reverse the strong trend of migration policies in Europe and initiated his mandate with symbolic decisions and statements.2415ABGRALL, T., “Spain’s Sanchez welcomes migrants – with an eye on elections,” FRANCE24, 02/08/2018, https://www.france24.com/en/20180802-spain-migrants-policy-sanchez-elections-morocco-rajoy-aquarius, retrieved on 22/09/2020 [https://web.archive.org/web/20250317131918/https://www.france24.com/en/20180802-spain-migrants-policy-sanchez-elections-morocco-rajoy-aquarius] For instance, in 2018 Spain granted access of its ports to the NGO boats Aquarius and Open Arms, after they had been denied entry by Italian authorities.2416“Spain will accept migrant ship Aquarius after Italy and Malta refuse entry,” DW, 11/06/2018, https://www.dw.com/en/spain-will-accept-migrant-ship-aquarius-after-italy-and-malta-refuse-entry/a-44150793, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162125/https://www.dw.com/en/spain-will-accept-migrant-ship-aquarius-after-italy-and-malta-refuse-entry/a-44150793]
However, these developments were contradicted by measures taken in the following months and the evolutions in the Western route. Despite the European Court of Human Rights decision, pushbacks at the southern border continued and the fences remained in Ceuta and Melilla.2417DOLZ, P., O. and CAÑAS, J., A., “Spain justifies migrant pushback in wake of large-scale jump at Ceuta,” El País, 27/07/2018, https://english.elpais.com/elpais/2018/07/27/inenglish/1532677497_218740.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162414/https://english.elpais.com/elpais/2018/07/27/inenglish/1532677497_218740.html] Sanchez thus eventually returned to the traditional Spanish approach of externalizing border control and took a more conservative stance on the Central Mediterranean route.2418GABRIELLI, L., European Externalisation of migration control, The spanish action as a model?, CIDOB 23/12/2016, https://www.cidob.org/en/publications/european-externalisation-migration-control-spanish-action-model, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161151/https://www.cidob.org/es/content/download/68223/2069639/version/5/file/123-152_LORENZO%20GABRIELLI.pdf]
The support to repressive EU migration policy therefore increased, and soon became similar to the policies adopted under the previous government. As of April 2016, Spain had “contributed to the more than 10 million euros that the EU […] mobilized in 2015 and 2016 to face [the migration crisis] and assist the countries most affected,”2419Cabinete de la Presidencia del Gobierno, La contribución española en la crisis migratoria y de refugiados, 08/04/2016, https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162650/https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados] of which 3 million went to the EUTF, “in whose promotion and creation Spain has actively participated.”2420Cabinete de la Presidencia del Gobierno, La contribución española en la crisis migratoria y de refugiados, 08/04/2016, https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162650/https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados]
Spain had been deeply involved and proactive in EU migration policies and appeared as a role model for the Commission services early on.2421GAREA, F., AND GONZÁLES, M., “Majority of Spanish Congress against EU refugee deal signed by acting PM,” El País, 11/03/2016, https://english.elpais.com/elpais/2016/03/11/inenglish/1457689365_358602.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162845/https://english.elpais.com/elpais/2016/03/11/inenglish/1457689365_358602.html] It is argued that the EU-Turkey deal contributed to closing the land routes, forcing refugees to risk their lives on the Mediterranean Sea. Mariano Rajoy, Spanish acting PM at the time, was found very active in concluding the deal. Indeed, although his own Congress was opposed, he did not hesitate to refuse to appear before Spanish representatives, to explain the deal and negotiate a common Spanish position on the subject. Except for his own Popular Party, all other congressional groups – 227 deputies out of a total of 350 – radically rejected the agreement. As we will see, its participation in and contribution to the following policies and projects established its government as a principal perpetrator of the crimes outlined in the previous and this Communication.
ISpain and Libya: Seahorse Mediterranean Network
Spain’s role in the presently discussed policies must be placed within the context of its preceding efforts to securitize the Spanish border. In the past decade, Spain has increasingly attempted to re-conceptualize its borders and externalize its migration policy.2422CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 4. This was encapsulated in a series of “Seahorse operations” which began in 2006 in collaboration with Frontex and represented “distinct phases […] constituting a progression of one specific model and strategy of border security.2423CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 17. The model consisted of “transnational police coordination operations focused on detecting and stopping irregular migration from African countries.”2424CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 4. Preceded by cooperation between Spanish and Moroccan border control agents, the “Seahorse Project… establish[ed] initial experiments in a multi-partner state series of joint patrols by border and coast guards, police training missions, and donations of equipment.”2425CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 8. These operations were funded through the Commission’s Europe Aid AENEAS funding program.2426CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 6. This was subsequently accompanied by the development of a communication network “via secure satellite networks.”2427CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, p. 6. Eventually, to ensure the sustainability of this system, a number of “Seahorse Cooperation Centres” were built to connect all participating countries.2428CASAS-CORTES, M., COBARRUBIAS, S, and PICKLES, J., “‘Good neighbours make good fences’: Seahorse operations, border externalization and extra-territoriality,” European Urban and Regional Studies, 13/08/2014, https://journals.sagepub.com/doi/10.1177/0969776414541136, retrieved on 01/10/2020, pp. 4, 8, 17.
(a) Seahorse Mediterranean
These “Seahorse Operations” expanded to form the Seahorse Mediterranean in 2013 which was launched simultaneously with the European Border Surveillance System (EUROSUR), paving the way for third country access to a centralized pool of European intelligence (cf. Seahorse Mediterranean; Seahorse Network). The project was officially granted 5.5 million euros and approved by the European Commission 19 September 2013.2429European Parliament, Answer given by High Representative/Vice-President Borrell on behalf of the European Commission, 07/05/2020, https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20240525192848/https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html] It comprised a Steering Group composed, inter alia, of representatives from DG HOME, the EEAS and Frontex and was coordinated by the Spanish Jefatura Fiscal y de Fronteras.2430European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 7. From the end of 2014 until June 2020, the head of the Jefatura Fiscal y de Fronteras was the general Juan Luis Pérez Martín.2431“El general Pérez Martín, nueva autoridad contra la inmigración en el Estrecho y Canarias,” InfoDefensa.com, 02/06/2020, https://www.infodefensa.com/es/2020/06/02/noticia-general-perez-martin-nueva-autoridad-contra-inmigracion-estrecho-canarias.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114527/https://www.infodefensa.com/es/2020/06/02/noticia-general-perez-martin-nueva-autoridad-contra-inmigracion-estrecho-canarias.html]
Seahorse Mediterranean served two crucial functions: to build the capacities of the Libyan coastguard and to realize Libyan access to European maritime surveillance systems in the form of a “Seahorse Mediterranean Network”. Training of the Libyan coastguard within the framework of Seahorse Mediterranean began in 2013.2432European Parliament, Answer given by Mr Avramopoulos on behalf of the European Commission, 21/12/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114833/https://www.europarl.europa.eu/doceo/document/E-8-2018-004603-ASW_EN.html] This formation included “maritime training (rescue and sea operations), border surveillance, repair and maintenance of patrol vessels, police codes of conduct, and respecting migrants’ human rights.”2433European Commission, Seahorse Project Steering Group meets in Brussels, 22/02/2017, https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en, retrieved on 01/10/2020 [https://web.archive.org/web/20201001114711/https://ec.europa.eu/home-affairs/news/seahorse-project-steering-group-meets-brussels_en] Seahorse Mediterranean also trained the General Administration for Coastal Security personnel (‘GACS’).2434European Commission, Action fiche of the EU Trust Fund to be used for the decisions of the Operational Committee, https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf, retrieved on 09/09/2020 [https://web.archive.org/web/20200909120409/https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/t05-eutf-noa-ly-04_fin.pdf], p. 3. 2435Answer given by Mr Avramopoulos on behalf of the European Commission, 08/10/2018, https://www.europarl.europa.eu/doceo/document/E-8-2018-003807-ASW_EN.html, retrieved on 09/03/2021 [https://web.archive.org/web/20230130064115/https://www.europarl.europa.eu/doceo/document/E-8-2018-003807-ASW_EN.html] Spain, Italy, and Malta trained a total of 141 Libyan coastguards.2436European Parliament, Answer given by High Representative/Vice-President Borrell on behalf of the European Commission, 07/05/2020, https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115051/https://www.europarl.europa.eu/doceo/document/E-9-2020-000892-ASW_EN.html]
This project, which explicitly evolved out of Spanish visions of border policy, is likely the first instance in which the LYCG was directly trained by EU entities,[1] providing the basis for the later large-scale training of and material support to Libyan entities, for the purpose of ‘migrant’ interceptions at sea.
In parallel, the main objective of the Seahorse Mediterranean Network was to reinforce and “coordinate” border surveillance systems and specifically improve Libya’s border surveillance by connecting African neighbors to the EUROSUR information network. Libya was supposed to become the first third country to join the hitherto EU-wide network.2437MONROY, M., “A seahorse for the Mediterranean: Border surveillance for Libyan search and rescue zone,” Dissecting Security Architectures, 03/01/2018, https://digit.site36.net/2018/01/03/border-surveillance-technology-for-new-libyan-search-and-rescue-zone/, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115449/https://digit.site36.net/2018/01/03/border-surveillance-technology-for-new-libyan-search-and-rescue-zone/] To achieve this objective, the Spanish Guardia Civil, together with the Italian Coast Guard, subsequently started “to equip and train [Libyans with] new technology, which include[d] radar equipment and drones.”2438MONROY, M., “European border surveillance in Libya,” Dissecting Security Architectures, 23/06/2018, https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/#more-767, retrieved on 01/10/2020 [https://web.archive.org/web/20201001115324/https://digit.site36.net/2018/06/23/european-border-surveillance-in-libya/]
Both the early training of the LYCG and the attempted incorporation of Libya into an EU-led surveillance network demonstrate the long-term and systematic character of the EU’s efforts to deploy the LYCG to intercept and pushback migrants attempting to reach Europe and highlight the central role that Spain assumed in the elaboration of these policies.
[1] While EUBAM Libya was developed around the same time, it is unclear when the first training of the GACS took place.
IIThe Spanish government and Mare Nostrum/Triton
Spain was a member of the previously introduced Task Force Mediterranean which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.2439European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 2. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation, and thus the basis for the later pushback by proxy;2440European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. identified EUBAM as a possible mechanism thereof;2441European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. indirectly alluded to the potential training of the Libyan coastguard;2442European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 10. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”2443European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3.
The Task Force communications also make explicit reference to ensuring compliance with international human rights standards, and, crucially, “the principle of non-refoulement”, as well as putting special emphasis on potential issues regarding third country cooperation, demonstrating the participants’ awareness their suggested actions may amount to serious and grave violations of international law.2444European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 6.
The earliest communication in October 2013, published long before the policies analyzed here were decided and implemented, already mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,”2445European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing - once again - full awareness of the conditions which they subjected tens of thousands of ‘migrants’ to through EU’s policy of ‘pushbacks by proxy’.
Amidst these developments, on 6 March 2014, Spain’s Interior Minister Jorge Fernandez Diaz spoke of “a migratory wave of thousands and thousands of people who want to reach Spain and the EU illegally.”2446MOTTA, C., “Hundreds of thousands migrants ready to cross the Mediterranean. Only a local matter?,” Brussels, The European Sting, 07/05/2014, https://europeansting.com/2014/05/07/hundred-of-thousands-migrants-ready-to-cross-the-mediterranean-only-a-local-matter/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163017/https://europeansting.com/2014/05/07/hundred-of-thousands-migrants-ready-to-cross-the-mediterranean-only-a-local-matter/] He further stated that “the mass influx of immigrants was not just Spain’s problem, but Europe’s and called for more EU cooperation.”2447MOTTA, C., “Hundreds of thousands migrants ready to cross the Mediterranean. Only a local matter?,” Brussels, The European Sting, 07/05/2014, https://europeansting.com/2014/05/07/hundred-of-thousands-migrants-ready-to-cross-the-mediterranean-only-a-local-matter/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163017/https://europeansting.com/2014/05/07/hundred-of-thousands-migrants-ready-to-cross-the-mediterranean-only-a-local-matter/]
A few months later, in late June 2014, the “informal G6 group [meeting] of interior ministers from the 6 largest EU countries” was held.2448UK Government, Written statement to Parliament, G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163154/https://www.gov.uk/government/speeches/g6-barcelona] The Spanish Interior Minister Jorge Fernandez Diaz presided over the meeting which was attended by Thomas De Maizière (Germany), Angelino Alfano (Italy), Theresa May (United Kingdom), Bernard Cazeneuve (France).2449UK Government, Written statement to Parliament, G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163154/https://www.gov.uk/government/speeches/g6-barcelona] James Cole (the Deputy US Attorney General), Alejandro Mayorkas (US Deputy Secretary of Homeland Security), Cecilia Malmstrom (European Commissioner for Home Affairs), and Gil Arias (Executive Director of FRONTEX) were invited as guests.2450UK Government, Written statement to Parliament, G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163154/https://www.gov.uk/government/speeches/g6-barcelona] As discussed, this meeting focused on the fight against “irregular immigration” in Europe, and dealt with the push by Italy to Europeanize Mare Nostrum while decrying its potential function as a “pull factor”.2451UK Government, Written statement to Parliament, G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163154/https://www.gov.uk/government/speeches/g6-barcelona]
On 30 August 2014, during a meeting in Barcelona between Jorge Fernández Diaz and Bernard Cazeneuve, the Interior Ministers of Spain and France both pushed for the quick implementation of the European border surveillance operation “Frontex Plus” that would gradually replace Mare Nostrum.2452“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/08/2014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163531/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/] 2453Ministère de l’Intérieur, Semaine du 25 au 31 août 2014, https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014,retrieved on 22/09/2020 [https://web.archive.org/web/20200922163625/https://www.interieur.gouv.fr/Archives/Archives-ministres-de-l-Interieur/Archives-Bernard-Cazeneuve-avril-2014-decembre-2016/Agenda-du-ministre/Semaine-du-25-au-31-aout-2014]
Jorge Fernández Díaz also declared that the Spanish Government was aware of the appalling situations of civilians attempting to reach Europe, but he emphasized that Spain had to ensure the “inviolability of [its] frontier, for being the external borders of the EU.”2454“Spain and France want an immigration coordinator in the EU,” The Diplomat in Spain, 31/08/2014, https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163531/https://thediplomatinspain.com/en/2014/08/spain-and-france-want-an-immigration-coordinator-in-the-eu/] In line with past Spanish migration policies, the safety of civilians was accordingly disregarded in favor of the maintenance of “strong” borders and deterrence of “migrants”. This culminated in a letter sent to European Commissioner for Home Affairs Cecilia Malmström on 11 September 2014 by multiple EU interior ministers, including Jorge Fernandez Diaz. The letter presented the French plan for immigration, proposed by Cazeneuve to [his] European partners during his ‘tour of Europe’ in August 2014, and asked for the replacement of Mare Nostrum by Triton.”2455Représentation Permanente de la France Auprès de l’Union Européenne, Lettre conjointe de M. Cazeneuve à Mme Malmström, 11/09/2014, https://ec.europa.eu/carol/?fuseaction=download&documentId=090166e599a59e6b&title=2014_09%2011%20-%20lettre%20conjointe%20M.%20Cazeneuve%20%C3%A0%20Mme%20Malmstrom.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917120502/https://webcache.googleusercontent.com/search?q=cache%3ACWOyllh1NwcJ%3Aec.europa.eu%2Fcarol%2F%3Ffuseaction%3Ddownload%26documentId%3D090166e599a59e6b%26title%3D2014_09%252011%2520-%2520lettre%2520conjointe%2520M.%2520Cazeneuve%2520%25C3%25A0%2520Mme%2520Malmstrom.pdf+&cd=1&hl=fr&ct=clnk&gl=fr]
Spain was subsequently among the countries providing resources for Operation Triton.2456B.D. and AFP “Immigration: Huit pays dont la France s’engagent dans l’opération Triton,” 20 Minutes, 14/10/2014, https://www.20minutes.fr/monde/1460579-20141014-immigration-huit-pays-dont-france-engagent-operation-triton, retrieved on 22/09/2020 [https://web.archive.org/web/20200922163913/https://www.20minutes.fr/monde/1460579-20141014-immigration-huit-pays-dont-france-engagent-operation-triton] It further sent “national border control experts to enable effective management of the EU's external borders.”2457Cabinete de la Presidencia del Gobierno, La contribución española en la crisis migratoria y de refugiados, 08/04/2016, https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162650/https://www.dsn.gob.es/es/actualidad/sala-prensa/contribuci%C3%B3n-espa%C3%B1ola-crisis-migratoria-refugiados]
On 12 March 2015, the Council of Ministers of Justice and Home Affairs discussed the eventuality of Frontex “modifying its mandate so as to become a proper save-and-rescue agency.”2458European Parliament, Statements by the Minister Jorge Fernández Díaz on the possibility of Frontex carrying out save-and-rescue missions, 24/03/2015, https://www.europarl.europa.eu/doceo/document//E-8-2015-004626_EN.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164115/https://www.europarl.europa.eu/doceo/document/E-8-2015-004626_EN.html] Jorge Fernández Díaz refused this proposition, arguing it would constitute a “pull effect” for human trafficking mafias.2459European Parliament, Statements by the Minister Jorge Fernández Díaz on the possibility of Frontex carrying out save-and-rescue missions, 24/03/2015, https://www.europarl.europa.eu/doceo/document//E-8-2015-004626_EN.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164115/https://www.europarl.europa.eu/doceo/document/E-8-2015-004626_EN.html] In total contradiction to Frontex’ prior statements regarding Mare Nostrum, Frontex rebuked Diaz’ remarks and stated that “there [had] not in fact been a significant reduction in migratory flows since [Mare Nostrum] was concluded.”2460European Parliament, Statements by the Minister Jorge Fernández Díaz on the possibility of Frontex carrying out save-and-rescue missions, 24/03/2015, https://www.europarl.europa.eu/doceo/document//E-8-2015-004626_EN.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164115/https://www.europarl.europa.eu/doceo/document/E-8-2015-004626_EN.html]
Spain, under the tutelage of its Interior Ministry, conspired with other Member States to move from the large-scale search and rescue operation Mare Nostrum to the devastatingly reduced operation Triton, whose lethal consequences has been well documented in previous sections of this Communication as well as in the first Communication. It is in this context that Spain insisted repeatedly on a narrative framing of search and rescue as a “pull-factor” and hence was among those responsible for the killing by drowning policy and the subsequent border externalization policy. Spain, more than any other EU Member State, had extensive knowledge of the results of such operations: mass deaths as well as grave, widespread and systematic breaches of fundamental human rights and international protection obligations.
IIIOperation Sophia
In September 2014, Spain had organized and hosted the Conference on Stability and Development in Libya, with the participation of the President of the Government of National Accord.2461Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Renouvèlement du mandat de la Mission de soutien des Nations unies en Libye (MANUL), 13/12/2016, http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164335/http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx] Between 2015 and 2016, as a non-permanent member of the United Nations Security Council, it was particularly active on Libya.2462Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Renouvèlement du mandat de la Mission de soutien des Nations unies en Libye (MANUL), 13/12/2016, http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164335/http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx] In a press release issued by its Foreign Ministry, Spain connected this UNSC involvement to Spain’s efforts to “stabilize” Libya and the externalization of EU’s border management to the country,2463Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Renouvèlement du mandat de la Mission de soutien des Nations unies en Libye (MANUL), 13/12/2016, http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164335/http://www.exteriores.gob.es/Portal/fr/SalaDePrensa/Comunicados/Paginas/2016_COMUNICADOS/20161213_COMU357.aspx] efforts that are not inconsistent with previous activities, including trainings, under the Seahorse Mediterranean program.
On 20 April 2015, a joint Foreign Affairs and Justice and Home Affairs Council on migration took place in Luxemburg, involving foreign and interior ministers.2464Council of the European Union, Justice and Home Affairs Council, 20 April 2015, 20/04/2015, https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164518/https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/] Spain was represented by José Manuel García-Margallo, Minister for Foreign Affairs and Cooperation, and by Jorge Fernandez-Diaz, Minister for the Interior.2465Council of the European Union, Justice and Home Affairs Council, 20 April 2015, 20/04/2015, https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164518/https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/] There, Ministers “agreed to reinforce the fight against trafficking of human beings, to strengthen EU action to save lives at sea as well as enhance support for countries on the front line.”2466Council of the European Union, Justice and Home Affairs Council, 20 April 2015, 20/04/2015, https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164518/https://www.consilium.europa.eu/en/meetings/jha/2015/04/20/] Jorge Fernandez-Diaz stated that it was “necessary to [stabilize] Libya […] and to fight against the smugglers.”2467BENACEUR, N., “Drames de l’immigration: une réunion européenne pour les ‘mesures immédiates’,” Algérie 360, 20/04/2015, https://www.algerie360.com/drames-de-limmigration-une-reunion-europeenne-pour-des-mesures-immediates/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164651/https://www.algerie360.com/drames-de-limmigration-une-reunion-europeenne-pour-des-mesures-immediates/] Diaz again already envisioned Libya as a partner in Spain’s well-practiced policy of outsourcing migration “control.”
On 18 May 2015, following the European Council’s 23 April 2015 instructions,2468Council of the European Union, Outcome of the Council Meeting 3389th Council meeting Foreign Affairs, 18/05/2015, https://www.consilium.europa.eu/media/23345/st08966en15.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164822/https://www.consilium.europa.eu/media/23345/st08966en15.pdf] the Foreign Affairs Council decided to set up EUNAVFOR MED. The EU military operation formally aimed at breaking the human traffickers’ business model in the Mediterranean and did not include any effective provision regarding search and rescue.2469Council of the European Union, Timeline - response to migratory pressures, 28/04/2020, https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164934/https://www.consilium.europa.eu/en/policies/migratory-pressures/history-migratory-pressures/]
The Spanish Foreign Affairs Minister José Manuel García-Margallo Marfil did not veto the decision to launch Operation Sophia, despite having the ability to. The Spanish contribution to EUNAVFOR MED was approved by an Agreement of the Spanish Council of Ministers on 10 July 2015 and included “the deployment [of the Spanish Armed force] in the Operation’s Headquarters in Rome and in the Force Headquarters […] and the initial participation of a maritime surveillance aircraft.”2470Presidencia del Gobierno, Referencia del Consejo de Ministros, 10/07/2015, https://www.lamoncloa.gob.es/consejodeministros/referencias/Paginas/2015/refc20150710.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922165142/https://www.lamoncloa.gob.es/consejodeministros/referencias/Paginas/2015/refc20150710.aspx] On 15 July 2015, the Congress of Deputies “authoriz[ed] the participation of Spain in the EUNAVFOR MED mission.”2471Ministerio de Defensa, EUNAVFORMED Sophia, https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200408101258/https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html]
Concretely, Spain contributed a tactical air detachment equipped with a maritime patrol aircraft, a frigate with a crew of 215 members, and a helicopter. Along with these means, Spain deployed a total of 8 people at the OHQ [Operation Headquarters] in Rome and 3 at the FHQ [Frontex Headquarters.2472Gobierno de España, UE-Eunavfor-Med Sophia, https://emad.defensa.gob.es/en/operaciones/historico-de-operaciones/41-UE-EUNAVFOR-MED-Operacion-Sophia/index.html_2063069299.html, retrieved on 31/05/2025 [https://web.archive.org/web/20241104213413/https://emad.defensa.gob.es/en/operaciones/historico-de-operaciones/41-UE-EUNAVFOR-MED-Operacion-Sophia/index.html_2063069299.html]
For six months in 2016, Javier Moreno Susanna was the Head of Operations at Operation Sophia's Headquarters in Rome.2473SUSSANA, J., M., “España ha apostado por esta operación desde el inicio,” Revista Española de Defensa, 12/2017, https://www.defensa.gob.es/Galerias/gabinete/red/2017/red-345-entrevista-sophia.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922165459/https://www.defensa.gob.es/Galerias/gabinete/red/2017/red-345-entrevista-sophia.pdf] On 27 April 2017, Spanish Defense Minister María Dolores de Cospedal “offered that Spain take command of the EU's ‘Sophia’ operation against mafias in the Central Mediterranean from September and train Libyan coastguards in Cartagena, during an informal meeting between EU ministers in La Valletta (Malta).”2474“España se ofrece para asumir el mando de la operación de la UE contra las mafias en el Mediterráneo en septiembre,” Europa Press, 27/04/2017, https://m.europapress.es/internacional/noticia-espana-ofrece-asumir-mando-operacion-ue-contra-mafias-mediterraneo-septiembre-20170427202702.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923072146/https://m.europapress.es/internacional/noticia-espana-ofrece-asumir-mando-operacion-ue-contra-mafias-mediterraneo-septiembre-20170427202702.html] Consequently, Spain assumed command of Operation Sophia in September of that year.2475GROS V., N., ”Operation Sophia comes under Spanish command at seam” Bruxelles2, 31/08/2017, https://www.bruxelles2.eu/en/2017/08/operation-sophia-goes-to-sea-under-spanish-command/, retrieved on 23/08/2024 [https://web.archive.org/web/20240903222820/https://www.bruxelles2.eu/en/2017/08/operation-sophia-goes-to-sea-under-spanish-command/]
On 28 August 2017, the heads of State and government of France, Germany, Spain, and Italy welcomed “the efforts made by the Libyan national government to control its territorial waters […] [and] recognize[d] that it is important to adequately equip and train Libyan coast guards, with an emphasis on the protection of human rights.”2476Elysée, Déclaration Conjointe – Relever le défi de la migration et de l’asile, 28/08/2017, https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200917132418/https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf], pp. 3-4. This paradoxical statement evidences awareness to albeit fails to mention that the contribution to the activities of the Libyan coastguard are part and parcel of crimes against humanity against “migrants”. On 24 October 2017, in Palermo, the Vice Minister of Foreign Affairs and Cooperation of Spain, Ildefonso Castro López, stated that “Spain [was] the second contributor to Operation Sophia.”2477Representación Permanente de España ante la OSCE, Viena, Statement by the Vice Minister of Foreign Affairs and Cooperation of Spain, H.E. Mr. Ildefonso Castro López, http://www.exteriores.gob.es/RepresentacionesPermanentes/OSCE/es/Noticias/Documents/171030%20Statement%20of%20Spain%20at%20the%202017%20OSCE%20Mediterranean%20Concerence.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923072521/http://www.exteriores.gob.es/RepresentacionesPermanentes/OSCE/es/Noticias/Documents/171030%20Statement%20of%20Spain%20at%20the%202017%20OSCE%20Mediterranean%20Concerence.pdf]
On 31 March 2019, “the maritime action ship ‘Rayo’ return[ed] to Las Palmas after the temporary suspension of naval deployment in Operation ‘Sophia’.”2478Ministerio de Defensa, EUNAVFORMED Sophia, https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200408101258/https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html] On 18 September, Colonel Alejandro Garcia Sipois took command over the Spanish Armed Forces serving in Operation Sophia.2479Ministerio de Defensa, EUNAVFORMED Sophia, https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html, retrieved on 22/09/2020 [https://web.archive.org/web/20200408101258/https://www.defensa.gob.es/misiones/en_exterior/actuales/listado/eunavformed.html] On 22 May 2020, the Spanish Foreign Affairs Minister Arancha González Laya and her Italian counterpart Luigi Di Maio, met to discuss the EUNAVFOR MED IRINI operation, launched on 31 March as a successor to Operation EUNAVFOR MED SOPHIA.2480Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Arancha González Laya mantiene una conversación con su homólogo italiano, 22/05/2020, http://www.exteriores.gob.es/Portal/es/SalaDePrensa/ElMinisterioInforma/Paginas/Noticias/20200522_MINISTERIO6.aspx, retrieved on 23/09/2020 [https://web.archive.org/web/20200923072728/http://www.exteriores.gob.es/Portal/es/SalaDePrensa/ElMinisterioInforma/Paginas/Noticias/20200522_MINISTERIO6.aspx] Spain asserted that Operation Irini could play an important role in the “security” and “stability” of the Mediterranean region and therefore intensified its participation in the operation.2481Ministerio de Asuntos Exteriores, Unión Europea y Cooperación, Arancha González Laya mantiene una conversación con su homólogo italiano, 22/05/2020, http://www.exteriores.gob.es/Portal/es/SalaDePrensa/ElMinisterioInforma/Paginas/Noticias/20200522_MINISTERIO6.aspx, retrieved on 23/09/2020 [https://web.archive.org/web/20200923072728/http://www.exteriores.gob.es/Portal/es/SalaDePrensa/ElMinisterioInforma/Paginas/Noticias/20200522_MINISTERIO6.aspx] This operation further scaled-back search and rescue activities, no longer making any mention of SAR in its mandate and intentionally reducing its geographic scope.2482BARIGAZZI, J., “EU launches naval mission to police Libya arms embargo,” POLITICO, 26/03/2020, https://www.politico.eu/article/eu-launches-naval-mission-to-police-libya-arms-embargo/, retrieved on 21/08/2024 [https://web.archive.org/web/20240828105907/https://www.politico.eu/article/eu-launches-naval-mission-to-police-libya-arms-embargo/]
Even before Sophia, the Spanish Foreign Ministry and other public officials were advocating for a Libya-oriented policy. To some extent, Sophia followed the Spanish model of border externalization, including its involvement in the training and equipment of Libyan coastguards under Seahorse Mediterranean. According to its own testimony, Spain was the second-largest contributor to Sophia, in terms of material and human support. Given its provision of both operational expertise and practical support, Spain was presumably a key actor in the implementation of EU’s 2nd policy alongside Italy.
IVLibyan Coastguard Training
On May 23rd 2016, the Spanish Minister of Foreign Affairs, José Manuel García-Margallo, participated in the EU Foreign Affairs Council meeting.2483Council of the European Union, Conseil Affaires étrangères, 23/05/2016, https://www.consilium.europa.eu/media/22894/23-fac-participants.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20181227140528/https://www.consilium.europa.eu/media/22894/23-fac-participants.pdf] 2484Représentation permanente de la France auprès de l’Union européenne, Libye : Accord pour impliquer l’opération navale Sophia dans le contrôle de l’embargo sur les armes, 23/02/2019, https://ue.delegfrance.org/libye-accord-pour-impliquer-l, retrieved on 23/09/2020 [https://web.archive.org/web/20200917130155/https://ue.delegfrance.org/libye-accord-pour-impliquer-l] There, Operation Sophia’s mandate was amended to include “the capacity building and training of, and information sharing with, the Libyan coastguard and Navy, taking into account the need for Libyan ownership.”2485Council of the European Union, Council conclusions on EUNAVFOR MED operation Sophia, 23/05/2016, https://www.consilium.europa.eu/fr/press/press-releases/2016/05/23/fac-eunavfor-sophia/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923073334/https://www.consilium.europa.eu/fr/press/press-releases/2016/05/23/fac-eunavfor-sophia/] 2486Council of the European Union, Outcome of the Council Meeting 3466th Council meeting Foreign Affairs, 23/05/2016, https://ue.delegfrance.org/IMG/pdf/resultats_23_mai.pdf?8289/f5d1331099e0074d65930d2e35231736941749ad, retrieved on 23/09/2020 [https://web.archive.org/web/20200923073602/https://ue.delegfrance.org/IMG/pdf/resultats_23_mai.pdf?8289/f5d1331099e0074d65930d2e35231736941749ad] Just a month earlier, the Foreign Minister had met with Fayez Al-Serraj and declared his support for cooperation between the two countries on the matter of “illegal immigration”.2487“Spain’s Foreign Secretary arrives in Tripoli, discusses boost of relations with Libya,” 28/04/2016, https://www.libyanexpress.com/spains-foreign-secretary-arrives-in-tripoli-discusses-boost-of-relations-with-libya/, retrieved on 22/10/2020 [https://web.archive.org/web/20201022144823/https://www.libyanexpress.com/spains-foreign-secretary-arrives-in-tripoli-discusses-boost-of-relations-with-libya/]
In the same month, Pilar Villanueva from the Spanish Embassy attended one of multiple ShadeMed conferences in May 2016, in which attendees were explicitly warned that European policies foreseeing returning “migrants” to Libya even if it was done by Libya would still breach international law.2488EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf] [Annex 7], pp. 21-22. The attendees of this working group were therefore aware of the deadly and unlawful consequences of the envisioned policy. From 2015 to 2017, Mr. Palma from the Spanish Embassy in Rome was also present at ShadeMed conferences in which the dire “situation faced by migrants in Libyan detention centres and the abuse they suffer”2489EUNAVFOR MED operation SOPHIA, SHADE MED Working Groups on Operations and CIS OUTCOME, 15/03/2016, https://www.operationsophia.eu/wp-content/uploads/2018/03/outcomes-sm-2015.pdf, retrieved on 03/07/2024 [Annex 8], p. 4. as well as the fact that Libya was not a safe country to disembark “migrants” was repeatedly reported.2490EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf] [Annex 7], pp. 16, 22. None of this led Spain to change its course on the policies it was endorsing and advocating for.
The European Heads of state, including Spanish Prime Minister Rajoy, convened in Malta on 3 February 2017 for a meeting on the external aspects of migration in the Central Mediterranean route. In this meeting the Malta Declaration was signed, “affirm[ing] that priority will notably be given to training, equipment, and support to the Libyan national Coast Guard.”2491Council of the European Union, COUNCIL DECISION (CFSP) 2017/1385 of 25 July 2017 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), 26/07/2017, https://www.operationsophia.eu/wp-content/uploads/2018/03/EU-Council-Decision-13852017.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20180719105518/https://www.operationsophia.eu/wp-content/uploads/2018/03/EU-Council-Decision-13852017.pdf]
Hearings of the Committee on Civil Liberties, Justice and Home Affairs in July 2017 concluded that the training of the Libyan coast guards started during the summer in several places in the EU, amongst which was Spain.2492European Parliament, Training of Libyan coast guards on EU territory, 17/07/2017, https://www.europarl.europa.eu/doceo/document/E-8-2017-004910_EN.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923074644/https://www.europarl.europa.eu/doceo/document/E-8-2017-004910_EN.html] Spain’s participation in Operation Sophia, therefore, was not limited to only carrying out surveillance and rescue work, but also training Libyan coastguards itself.2493GONZÁLEZ, M., “España se suma a la formación de la polémica guardia costera libia,” El País, 14/08/2018, https://elpais.com/politica/2018/08/14/actualidad/1534240075_531361.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923074935/https://elpais.com/politica/2018/08/14/actualidad/1534240075_531361.html] In November 2017, Spain was training Libyan coastguards both in Spain and in Libya.2494CAMPBELL, Z., “Europe’s Plan to Close Its Sea Borders Relies on Libya’s Coast Guard Doing Its Dirty Work, Abusing Migrants,” The Intercept, 25/11/2017, https://theintercept.com/2017/11/25/libya-coast-guard-europe-refugees/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923074811/https://theintercept.com/2017/11/25/libya-coast-guard-europe-refugees/] Other reports indicate that on 22 July 2018, the first training course taught by Spanish soldiers at the Marine Corps School “General Albacete y Fúster” in Cartagena (Murcia), was completed.2495EFE, “La Marina de Libia se forma en Cartagena en salvamento marítimo y abordaje,” La Verdad, 09/08/2018, https://www.laverdad.es/murcia/cartagena/marina-libia-forma-20180809134758-nt.html?ref=https:%2F%2Fwww.google.com%2F, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075128/https://www.laverdad.es/murcia/cartagena/marina-libia-forma-20180809134758-nt.html?ref=https%3A%2F%2Fwww.google.com%2F] There were 27 students who had received classes since 25 June 2018.2496CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] There were 13 Spanish troops in charge of instructing them (five from the Marine Corps and eight from the Military Legal Corps), accompanied by an Italian soldier and four civilians, one of them a Spanish national.2497CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/]
The training program, conceived by lieutenant-colonel Miguel Gallardo Fernández-Díez and implemented by commandants Ricardo Noval Martin and Vicente Hernández García, was divided into three phases, beginning with a medical checkup.2498CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] The second consisted of different common teachings, such as human rights and the refugee status.2499CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] In the last phase, the Libyan coastguards were divided into two groups: high-ranking officers attended a course in international maritime law and armed conflict.2500CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] The rest of the officers received classes about ship boarding, registration and requisitioning.2501CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] They were taught “how to equip themselves correctly and to distinguish between the different cases that can be found to proceed in one way or another,” according to 1st Sergeant Manuel Jesús Corbacho, who was implicated in the formation along 1st Sergeant Sergio Azoque.2502CANCION, F., “Curso exprés de la Armada española a guardacostas libios,” La Razón, 30/07/2018, https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075304/https://www.larazon.es/espana/curso-expres-de-la-marina-espanola-a-guardacostas-libios-CN19279209/] The “human rights course” was led by members of the Legal Corps, while the boarding operations course “Visits, Boarding, Search and Capture” was entirely led by professors for the Marine Corps school, as well as Military Health Corps personnel, with extensive experience in this type of mission in the waters of the Mediterranean Sea and the Indian Ocean.2503EFE, “La Marina de Libia se forma en Cartagena en salvamento marítimo y abordaje,” La Verdad, 09/08/2018, https://www.laverdad.es/murcia/cartagena/marina-libia-forma-20180809134758-nt.html?ref=https:%2F%2Fwww.google.com%2F, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075128/https://www.laverdad.es/murcia/cartagena/marina-libia-forma-20180809134758-nt.html?ref=https%3A%2F%2Fwww.google.com%2F]
On 17 August 2018, the Ministry of Defense valued positively the first training course that the Libyan coastguards received in Spain. The Minister of Defense, Margarita Robles, and the director of the Marine Corps School “General Albacete y Fúster”, Enrique Apolo, highlighted that in addition to practical training, the Libyan coastguard received training in international law, maritime security, search and rescue of people, defense of human rights and gender perspective.2504Ministerio de Defensa, Defensa valora positivamente el curso a los guardacostas libios, que incluyó también la perspectiva de género, 17/08/2018, https://www.defensa.gob.es/gabinete/notasPrensa/2018/08/DGC-180817-guardacostas.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075505/https://www.defensa.gob.es/gabinete/notasPrensa/2018/08/DGC-180817-guardacostas.html] In light of the “success” of this initiative, the Ministry considered the possibility of repeating it with other countries.2505Ministerio de Defensa, Defensa valora positivamente el curso a los guardacostas libios, que incluyó también la perspectiva de género, 17/08/2018, https://www.defensa.gob.es/gabinete/notasPrensa/2018/08/DGC-180817-guardacostas.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075505/https://www.defensa.gob.es/gabinete/notasPrensa/2018/08/DGC-180817-guardacostas.html]
By 5 July 2019, more than 350 Libyan military personnel had been trained in Spain under the auspices of Operation Sophia. The countries in charge of carrying out this instruction were Italy, Greece, Malta, Croatia and Spain.2506SANCHEZ, A., P., “La formación de la Guardia Costera y Marina libias en el marco de la Operación Sophia. Un ejemplo práctico de la externalización de las fronteras en el ámbito de la UE,” ieee.es 05/07/2019, http://www.ieee.es/Galerias/fichero/docs_opinion/2019/DIEEEO65_2019ANTPON_Sophia.pdf, retrieved on 23/09/2020 https://web.archive.org/web/20200923075646/http://www.ieee.es/Galerias/fichero/docs_opinion/2019/DIEEEO65_2019ANTPON_Sophia.pdf], p. 9.
On 26 March 2019, audio recordings showed that the Spanish forces had participated in at least one instance of maritime surveillance and Libyan interception operations using planes.2507PAREJA, P., et.al., “Aviones españoles guían a los guardacostas libios para interceptar y devolver pateras en el Mediterráneo,” El Diario, 12/03/2020, https://www.eldiario.es/desalambre/Aviones-militares-guardacostas-interceptar-devolverlos_0_1003349772.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075827/https://www.eldiario.es/desalambre/aviones-militares-guardacostas-interceptar-devolverlos_1_1038863.html] One of their patrolling planes declared: “we are under the coordination of the [Libyan National Coast Guard].”2508PAREJA, P., et.al., “Aviones españoles guían a los guardacostas libios para interceptar y devolver pateras en el Mediterráneo,” El Diario, 12/03/2020, https://www.eldiario.es/desalambre/Aviones-militares-guardacostas-interceptar-devolverlos_0_1003349772.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075827/https://www.eldiario.es/desalambre/aviones-militares-guardacostas-interceptar-devolverlos_1_1038863.html] Once the operation ended, the plane, Cotos, was directed towards Tripoli.2509PAREJA, P., et.al., “Aviones españoles guían a los guardacostas libios para interceptar y devolver pateras en el Mediterráneo,” El Diario, 12/03/2020, https://www.eldiario.es/desalambre/Aviones-militares-guardacostas-interceptar-devolverlos_0_1003349772.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923075827/https://www.eldiario.es/desalambre/aviones-militares-guardacostas-interceptar-devolverlos_1_1038863.html]
Spain’s own efforts to externalize its borders through third-countries’ “collaboration” evolved to active participation in this policy at the European level. Spain extensively contributed to the training of the Libyan coastguard to this end and thus successfully co-orchestrated the capture, forced transfer and subsequent abusive detention in Libya. These activities were undertaken in order to prevent “migrants” from reaching European shores and with full knowledge and acceptance of the crimes against humanity the targeted population is exposed to in Libya.2510BATHKE, B., “When helping hurts – Libya’s controversial coast guard, Europe’s go-to partner to stem migration,” Info Migrants, 24/07/2019, https://www.infomigrants.net/en/post/18196/when-helping-hurts-libya-s-controversial-coast-guard-europe-s-go-to-partner-to-stem-migration, retrieved on 23/10/2020 [https://web.archive.org/web/20201025184517/https://www.infomigrants.net/en/post/18196/when-helping-hurts-libya-s-controversial-coast-guard-europe-s-go-to-partner-to-stem-migration]
i) Criminalization of NGOs
On 28 August 2017, PM Mariano Rajoy and his French and German counterparts welcomed
“the measures taken by Italy […] (in particular) the code of conduct for rescue operations at sea which constitutes a beneficial advance allowing to improve the coordination and the efficiency of the rescues. The heads of state and government call on all NGOs operating in the area to sign and comply with the code of conduct.”2511Elysée, Déclaration Conjointe – Relever le défi de la migration et de l’asile, 28/08/2017, https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200917132418/https://www.elysee.fr/front/pdf/elysee-module-776-fr.pdf], p. 4.
Spain itself also actively prevented NGOs from operating search and rescue operations in the Central Mediterranean by denying clearance to vessels leaving its ports. To do so, “Spanish authorities misused national maritime administrative law regulating the granting of ship clearance to curb rescue operations conducted by NGOs in the Central Mediterranean.”2512Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 75.
On 8 January 2019, for example, Spanish port authorities refused to allow the “Open Arms” to leave Barcelona.2513Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 73. It was due to sail towards the Libyan Search and Rescue Region and was denied departure clearance due to allegedly missing authorizations.2514Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 73. The “Open Arms” was thus prohibited from conducting search and rescue operations and threatened with fines of up to 901,000 euros if it was to violate this prohibition.2515Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 73. It was only allowed to leave on 17 April 2019, to provide humanitarian aid to Greek islands.2516Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 73.
In August 2019, the “Open Arms” rescued 124 people in the Central Mediterranean, leading to further tensions with the Spanish government. Spain refused to assist the ship and its passengers, leaving it stranded for 19 days before Italy allowed the rescuees to be disembarked in Lampedusa.2517Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 74. Over the course of this standoff, tensions arose and then Deputy Prime Minister Carmen Calvo made implicit threats of further legal prosecution.2518“Carmen Calvo recuerda que el Open Arms no tiene permiso para rescatar,” Cadena Ser, 21/08/2019, https://cadenaser.com/programa/2019/08/21/hoy_por_hoy/1566367569_251768.html, retrieved on 23/09/2020 [https://web.archive.org/web/20240828110758/https://cadenaser.com/programa/2019/08/21/hoy_por_hoy/1566367569_251768.html]
On 18 January 2019, the NGO ship Aita Mari was similarly denied authorization to depart from Pasaia (Basque country).2519Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 75. Although it had never conducted any humanitarian activities before, clearance was denied preemptively, on the basis that EU States had not agreed on points of disembarkation for rescued “migrants”, leading authorities to fear “dangers for the rescued people and crew and pollution caused by delays in disembarkation.”2520Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 75. Only in November 2019 the ship was allowed to depart, eventually rescuing 78 individuals which were disembarked in Pozzallo (Sicily, Italy).2521Amnesty International, Europe: Punishing Compassion: Solidarity on Trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF, retrieved on 23/09/2020 [https://web.archive.org/web/20200923080019/https://www.amnesty.org/download/Documents/EUR0118282020ENGLISH.PDF], p. 75.
Spain’s participation in the campaign against SAR NGOs was consistent with its traditional framing of SAR activities as creating a ‘pull-factor’. Its involvement in the ousting of civil society NGOs from the Central Mediterranean, reflect involvement in the deterrence-based EU policies, that is, the mass killings by drowning and the forced transfer of survivors to Libya.
DKey individuals
Suspects
-
Enrique Apolo Ruiz>
2018
SpainDirector of the School of the Marine Infantry of Cartagena
-
Jorge Fernández Diaz>
2011–2016
SpainInterior Minister
-
José Manuel Garcia-Margallo>
2011–2016
SpainMinister of Foreign Affairs
-
Juan Luis Perez Martín>
2014–2020
SpainHead of Seahorse Network
-
Maria del Carmen Calvo>
2019–2024
SpainDeputy Prime Minister
-
Maria Margarita Robles>
2018–Present
SpainMinister of Defence
-
Mariano Rajoy>
2011–2018
SpainPrime Minister
-
Miguel Gallardo Fernández-Díez>
2018
SpainLieutenant Colonel of the Marine Corps
-
Pedro Morenés y Álvarez de Eulate>
2011–2016
SpainDefence Minister
-
Ricardo Noval Martin>
2018
SpainMarine Corps Commander
-
Sergio Azoque>
2018
SpainFirst Sergeant – Marine Corps
-
Vicente Hernandes Garcia>
2018
SpainMarine Corps Brigade
Involved
-
Alejandro García Sipios>
2019
SpainColonel - Commander of the Grappa detachment – 13° contigente
-
Alfonso María Dastis Quecedo>
-
Ángel Mazo Dapena>
2013–2015
SpainRepresentante Militar ante los Comités Militares de la UE
-
Arancha González Laya>
2020–2021
SpainForeign Minister, European Union and Cooperation
-
Carlos Abella y de Arístegui>
2011–2017
SpainGeneral Director of International Relations and Foreigners
-
Elena Garzón Otamendi>
2017–
SpainGeneral Director of International Relations and Foreigners
-
Fernando Grande-Marlaska Gómez>
06/2018–
Council of the European UnionSpainInterior Minister
-
Guillermo Anguera Gual>
2016–2020
SpainCouncil of the European UnionCoordinacíon Coreper II
-
Hana Jalloul>
2020–2021
SpainSecretary of State for Migration
-
Ildefonso De la Campa Montenegro>
2017–2018
SpainGeneral Director for Migration within the Secretary of State for Migration
-
José Alarcón Hernández>
2018–2020
SpainDirector General for Migration within the Secretary of State for Migration
-
Josep Borrell Fontelles>
2019–2019
Council of the European UnionSpainMinister of Foreign Affairs, the European Union and Cooperation
2019–2024
European CommissionCouncil of the European UnionHigh Representative of the European Union for Foreign Affairs and Security Policy and Vice-President of the European Commission
-
Manuel Alhama Orenes>
2016–2022
SpainGeneral Subdirector for International Relations, Immigration and Aliens
-
Manuel Acerete Gómez>
2017–2020
SpainRepresentative Ambassador to the Political and Security Committee
-
Manuel Jesús Corbacho>
2018
Spain1st Sergeant
-
Marco Aguiriano>
2018–2020
SpainSecretary of State for the European Union
-
María Dolores de Cospedal García>
2016–2018
SpainMinister of Defence
-
Pablo García-Berdoy y Cerezo>
2016–2020
SpainCouncil of the European UnionPermanent Representative to the EU
-
Aurelio Miras Portugal>
2012–2017
SpainGeneral Director for Migration within the Secretary of State for Migration
-
Consuelo Rumí>
2018–2020
SpainSecretary of State for Migration
-
Fernando Eguidazu Palacios>
2015–2016
SpainSecretary of State for the European Union
-
General Juan Montenegro Álvarez de Tejera>
2018–2020
SpainRepresentante Militar ante los Comités Militares de la UE
-
Íñigo Méndez de Vigo>
2011–09/2015
SpainSecretary of State for the European Union
-
Javier Moreno Susanna>
2016
SpainEuropean CommissionHead of Operations at Eunavfor Med Sophia's Headquarters in Rome
09/2017–12/2017
SpainEuropean CommissionForce Commander of operation Sophia
-
Jorge Toledo Albiñana>
2016–2018
SpainSecretary of State for the European Union
-
José Luis Urcelay Verdugo>
2015–2018
SpainCouncil of the European UnionRepresentante Militar ante los Comités Militares de la UE
-
Juan Ignacio Zoido Álvarez>
2016–2018
SpainCouncil of the European UnionInterior Minister
-
Magdalena Valerio Cordero >
2018–2020
SpainMinister of Labor, Migration and Social Security
-
María Soraya Sáenz de Santamaría Antón >
-
Nicolas Pascual de la Parte>
2013–2015
SpainEmbajador Representante en el COPS
-
Pedro Sánchez Pérez-Castejón>
2018–
SpainThe European CouncilPresident of the Government
-
Salvador Rueda Rabanal>
2015–2016
SpainCoordinación Coreper II
Related
- 2358Vox, Spain / Morocco, Africa’s gateway to Europe, https://www.vox.com/a/borders/spain-morocco, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153348/https://www.vox.com/a/borders/spain-morocco]
- 2359Rodriguez V„ Spain, Britannica, 20/09/2020, https://www.britannica.com/place/Spain, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153103/https://www.britannica.com/place/Spain]
- 2360Ibid.
- 2361ELDRIDGE, A., “Mariano Rajoy,” Britannica, 23/03/2020, https://www.britannica.com/biography/Mariano-Rajoy, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153559/https://www.britannica.com/biography/Mariano-Rajoy]
- 2362Ibid.
X
Malta
AExecutive Summary
Alongside Italy, Malta was one of the key coastal Member States on which EU migration policy depended and consistently pushed for the most repressive measures against “migrants.” Malta’s positions and own policies regarding migration throughout the relevant time period reveal a persistent policy of attempting to stop “migrants” from reaching Maltese shores at all costs, regardless of legality or consequent suffering of the vulnerable people embarking on the journey to Europe.
As early as 2013, reports indicated that Malta and Italy concluded a secret agreement which saw Italy actively rescuing “migrants” headed to Malta in return for oil exploration rights. Against this backdrop, Malta refused a Europeanization of Mare Nostrum should Malta have to take in the majority of rescued “migrants” alongside Italy because it claimed to lack space to receive more people. From this point onward, its Prime Minister Muscat repeatedly intervened in European Council negotiations to promote the criminalization of “migrants” and close collaboration with Libya. Malta further realized those objectives through unilateral agreements with Italy to redirect “migrants” and through secret agreement with Libya itself for the purpose of illegal interceptions and pushbacks of “migrants.”
From the beginning, PM Muscat considered Libya to be the key partner in “stopping migration to Europe.” Malta accordingly strongly supported the training and funding of the LYCG despite its leadership being fully aware of the horrific conditions “migrants” face in Libya. The widespread torture, abuse, enslavement, and killings of “migrants” in Libya were an acceptable collateral to deter and prevent them from reaching Maltese shores.
Around the time this was formally adopted as EU policy, Malta actively advocated for its inclusion and met with key actors including Italy. In early 2017, Malta presented a non-paper to the Council proposing a coordinated scheme between Malta, Libya, and Frontex to intercept and pushback “migrants” to Libya, in effect suggesting ending the EU’s pretense of a humanitarian migration policy and attempted recusal from responsibility for their ongoing refoulement by proxy practices. Muscat continued to push for the centering of Libya in stopping migration “flows” across the Central Mediterranean and held close relationships with Libyan officials. Beyond material contributions, there are contradicting reports about the concrete contributions to Operation Sophia with one source alleging Malta trained Libyan coastguards and another stating it merely hosted Italian-led trainings on Maltese soil. In the summer of 2018, reports surfaced that Malta had concluded a secret agreement with the LYCG to intercept and pushback “migrants” before reaching Maltese shores.
Beyond its efforts to forcibly return “migrants” attempting to reach Europe to Libyan detention camps, Malta also made efforts to obstruct life-saving civil society search and rescue operations. Malta actively criminalized rescue NGOs and incapacitated multiple ships from conducting search and rescue for months at a time. Muscat further personally advocated for harsher repression of rescue NGOs at the European Council. These decisions were taken within a context of high death tolls in the Mediterranean and in full awareness of the critical gap in search and rescue efforts NGOs were trying to fill.
Inhabiting a key position on the Central Mediterranean route, Malta actively supported and pushed for the criminal policies discussed in this communication. To realize its objective to stop “migrants” from reaching Maltese shores, Malta was willing to subject “migrants” to death, torture, rape and enslavement through its personally re-enforced scheme of instrumentalizing the Libyan coastguard to intercept and pushback “migrants” at sea. Malta actively promoted the end of Mare Nostrum and the lethal shift to the stripped-down Operation Triton, closed its own secret deal with Italy to circumvent disembarkation at its ports, and criminalized rescue NGOs attempting to close these fatal gaps. Malta further pushed for the training and equipment of the LYCG and went so far as to close a separate bilateral deal with Libya to direct their illegal interception and pushback of “migrants” attempting to cross to Malta. Malta willingly accepted and fostered the consequences of its actions which “result[ed] in avoidable deaths, prolonged arbitrary detention and illegal returns [of migrants] to war-torn Libya."2522Amnesty International, “Malta is ramping up despicable and illegal migrant pushbacks,” Press Release, 08/09/2020, https://www.amnesty.org.uk/press-releases/malta-ramping-despicable-and-illegal-migrant-pushbacks-new-report, retrieved on 16/04/2021 [https://web.archive.org/web/20210127014931/https://www.amnesty.org.uk/press-releases/malta-ramping-despicable-and-illegal-migrant-pushbacks-new-report]
BDecision-making Structures
Malta is a Republic in which the President, elected by the House of Representatives, carries a largely ceremonial role. The Government is headed by the Prime Minister, who presides over the Cabinet. Over the relevant time period, the position was held by Joseph Muscat (March 2013 – January 2020). He was advised by his Sherpa Jonathan Cardona (2014-2019).
Joseph Muscat himself described the decision-making process within the Maltese government as policies and positions being discussed by himself, his chief of staff Keith Schembri, the Commander of the Armed Forces of Malta Jeffrey Curmi, and the Interior Minister Carmelo Abela.2523Interviewee I28 Given the familial structures within the Maltese government – Muscat is childhood friends with Schembri2524“Malta PM hands over to colleague after resignation,” France24, 13/01/2020, https://www.france24.com/en/20200113-malta-pm-hands-over-to-colleague-after-resignation, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082127/https://www.france24.com/en/20200113-malta-pm-hands-over-to-colleague-after-resignation] – it appears that Malta’s migration policy evolved out of a collective decision-making process.
Within the scope of the present Communication, the relevant ministries include the Ministry for Home Affairs, National Security and Law Enforcement, and the Ministry for Foreign and European Affairs.
The Ministry for Home Affairs, National Security and Law Enforcement is notably responsible for defense, armed forces, police, immigration, civil protection, and law enforcement.2525Government of Malta, Portfolio Ministry for Home Affairs, National Security and Law Enforcement, https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx, retrieved 10/09/2020 [https://web.archive.org/web/20200928215549/https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx] Within its portfolio, it oversees and appoints the Immigration Appeals Board and Refugee Appeals Board,2526Government of Malta, Portfolio Ministry for Home Affairs, National Security and Law Enforcement, https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx, retrieved 10/09/2020 [https://web.archive.org/web/20200928215549/https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx] placing it at a key position within the decision-making and enforcement process for migration matters. It furthermore directs the Agency for the Welfare of Asylum Seekers which “[implements] national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.”2527Agency for the Welfare of Asylum Seekers, Mission and Functions, https://homeaffairs.gov.mt/en/MHAS-Departments/awas/Pages/Mission-and-Function.aspx, retrieved 10/09/2020 [https://web.archive.org/web/20200910100848/https://homeaffairs.gov.mt/en/MHAS-Departments/awas/Pages/Mission-and-Function.aspx] In practice, it “manages reception facilities, […] and promotes government schemes related to resettlement voluntary returns.”2528Agency for the Welfare of Asylum Seekers, Mission and Functions, https://homeaffairs.gov.mt/en/MHAS-Departments/awas/Pages/Mission-and-Function.aspx, retrieved 10/09/2020 [https://web.archive.org/web/20200910100848/https://homeaffairs.gov.mt/en/MHAS-Departments/awas/Pages/Mission-and-Function.aspx] This position was successively held by Carmelo Abela (December 2014 – June 2017), Michael Farrugia (June 2017 – January 2020), and Byron Camilleri (January 2020 –)
The Ministry for Foreign and European Affairs is charged with “relations with the European Union, relations with International Organizations and Institutions” and, through a Parliamentary Secretariat for European Funds, “EU internal coordination, EU funds and programs, State aid.”2529Government of Malta, Portfolio Ministry for Foreign and European Affairs, https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/foreign.aspx,retrieved 10/09/2020 [https://web.archive.org/web/20200910100332/https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/foreign.aspx] The position of Foreign Minister was held by George Vella (March 2013-June 2017), Carmelo Abela (June 2017-January 2022), Evarist Bartolo (January 2020-2022), and Ian Borg (March 2022 –).
The Maltese ambassadors to Libya were Mannie Galea (2014 – 2019) and Charles Saliba (February 2019 –).
CImplications in Criminal Policies
Prior to the end of Mare Nostrum, Malta was a member of the previously introduced Task Force Mediterranean which was created in October 2013 to “identify short- and medium-term operational actions to be implemented” during the migration “crisis”.2530European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], pp, 2, 8. The two Communications published by this Task Force crucially envisioned stopping “irregular” migration through third country cooperation, and thus were the basis for the later pushback by proxy;2531European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 2. identified EUBAM as a possible mechanism thereof;2532European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. indirectly alluded to the potential training of the Libyan coastguard;2533European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 9-10. and discussed the establishment of the surveillance network EUROSUR and Seahorse Mediterranean as a “secure maritime communication network to combat irregular migration.”2534European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf], p. 3. They also make explicit reference to ensuring compliance with international human rights standards, and, crucially, “the principle of non-refoulement,” as well as putting special emphasis on potential issues regarding third country cooperation, demonstrating the participants’ clear knowledge of their suggested actions easily lending themselves to serious and grave violations of international law.2535European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], pp. 3, 6-7, 9-10, 15-17.
The earliest communication in October 2013, published significantly before any of the criminal policies were decided and implemented, clearly mentions the horrific conditions in Libya, including “the indiscriminate detention of migrants, the mistreatment of migrants within and outside retention centres,"2536European Commission, Communication from the Commission to the European Parliament and the Council, 04/12/2013, https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf, retrieved on 29/06/2024 [https://web.archive.org/web/20240629164831/https://home-affairs.ec.europa.eu/system/files/2020-09/20131204_communication_on_the_work_of_the_task_force_mediterranean_en.pdf], p. 7. establishing Malta’s full awareness of the conditions that the EU would subject thousands of migrants to through orchestrated pushbacks by proxy.
IMalta-Italy Deal
Reports published in early 2016 suggested that Muscat and Renzi had closed a secret deal in which Italy would “pick up Malta’s share of “migrants” rescues in its search and rescue area” in exchange for “Malta surrendering oil exploration rights,” an agreement which continued similar policies secretly adopted since at least 2013.2537“Brussels gives no credence to claims of secret Malta-Italy oil-for-migrants deal,” Independent, 27/03/2016, https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082639/https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434] 2538ORLAND, K., S., “Malta-Italy migration secret deal resurfaces in the international media,” Independent, 09/04/2016, https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082936/https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026] Interior Minister Carmelo Abela had initially talked about a deal between Italy and Malta and later retracted this statement, alluding to merely a “close collaboration” between the two countries.2539“Brussels gives no credence to claims of secret Malta-Italy oil-for-migrants deal,” Independent, 27/03/2016, https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082639/https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434] 2540ORLAND, K., S., “Malta-Italy migration secret deal resurfaces in the international media,” Independent, 09/04/2016, https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082936/https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026] Noticeably, despite Malta’s exceptionally large search and rescue zone, from 2015 to early 2016, 142 000 people fled from the North-African coast but only 100 reached Malta, which was described as a highly odd number.2541“Brussels gives no credence to claims of secret Malta-Italy oil-for-migrants deal,” Independent, 27/03/2016, https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082639/https://www.independent.com.mt/articles/2016-03-27/local-news/Brussels-gives-no-credence-to-claims-of-secret-Malta-Italy-oil-for-migrants-deal-6736155434] 2542ORLAND, K., S., “Malta-Italy migration secret deal resurfaces in the international media,” Independent, 09/04/2016, https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082936/https://www.independent.com.mt/articles/2016-04-09/local-news/Malta-Italy-migration-secret-deal-resurfaces-in-the-international-media-6736156026]
Amnesty International described the consequences of the Italy-Malta deal in the following terms: a systematization of the “illegal refoulement of migrants towards Libya, diversion of vessels towards Italy rather than the rescue of individuals at risk and the illegal detention of individuals in ill-equipped ferries near Maltese waters.”2543“Amnesty International dénonce les ‘tactiques illégales’ de Malte envers les migrants,” Le Monde, 08/09/2020, https://www.lemonde.fr/international/article/2020/09/08/amnesty-denonce-les-tactiques-illegales-de-malte-envers-les-migrants_6051346_3210.html, retrieved 10/09/2020 [https://web.archive.org/web/20200910090922/https://www.lemonde.fr/international/article/2020/09/08/amnesty-denonce-les-tactiques-illegales-de-malte-envers-les-migrants_6051346_3210.html]
In 2014, Malta supported Italy’s threat to suspend Mare Nostrum if the EU refused to Europeanize the mission.2544DALLI, M., “Malta to support Italy’s threat to suspend Mare Nostrum operation,” Malta Today, 24/06/2014, https://www.maltatoday.com.mt/news/national/40397/malta_to_support_italys_threat_to_suspend_mare_nostrum_operation, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082344/https://www.maltatoday.com.mt/news/national/40397/malta_to_support_italys_threat_to_suspend_mare_nostrum_operation] Muscat himself alleged that Malta was generally against ending Mare Nostrum, yet later stated that Malta would be against a Europeanization of Mare Nostrum if it didn’t receive a previous guarantee that Malta would not have to take in the majority of rescued “migrants” alongside Italy because of an alleged lack of space.2545Interviewee I28
In a move that characterizes Muscat’s role in the European Council for years to come, Muscat insisted on – and managed to – insert a phrase about “smuggling of migrants” in the European Council Conclusions of March 2014.2546LUDLOW P., “Preliminary Evaluation 2014/2,” Eurocomment, Leuven University Press, 05/2014, p. 43.
IIBorder Externalization
Throughout the years, Malta, and specifically Muscat himself consistently pushed for stopping “migrants” from crossing over at all costs. Muscat asked for and obtained the integration of two amendments in the Council Conclusions of March 2015. In paragraph 15, he pushed not only for the EU “standing ready” to work with a Government of National Unity in Libya, but to declare that it was prepared to “make use of all its instruments,” implicitly pointing to the CSDP mission advocated by Mogherini, which would be concretized with Operation Sophia.2547LUDLOW, P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published, p. 36. In paragraph 16, he managed to add to the objectives of the Commission’s new Agenda for Migration “the fight against and the prevention of illegal migration.”2548LUDLOW, P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published, p. 36. This orientation had not emerged as such from the FAC, although Mogherini seemed favorable to it. This angle was critical in the further approach of the Council and of the EU as a whole, which makes Muscat largely responsible in this respect.2549LUDLOW, P., “Preliminary Evaluation 2015/2,” Eurocomment, Leuven University Press (never published Muscat also imposed Libya-specific Conclusions on the April 2015 European Council meetings.2550LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, pp. 4, 9.
Malta’s public policy objectives were to stop “migrants” from crossing the Mediterranean while also targeting root causes (in African countries).2551“Amnesty International dénonce les ‘tactiques illégales’ de Malte envers les migrants,” Le Monde, 08/09/2020, https://www.lemonde.fr/international/article/2020/09/08/amnesty-denonce-les-tactiques-illegales-de-malte-envers-les-migrants_6051346_3210.html, retrieved 10/09/2020 [https://web.archive.org/web/20200910090922/https://www.lemonde.fr/international/article/2020/09/08/amnesty-denonce-les-tactiques-illegales-de-malte-envers-les-migrants_6051346_3210.html] According to Muscat, it was him who specifically pushed for African leaders to be invited to the Valletta Summit.2552Interviewee I28 Malta was primarily concerned by the lack of stability in Libya which Muscat feared could undermine EU migration policy.2553Interviewee I28 For this reason, Muscat deemed Libya essential in helping to “properly manage migration” and Malta’s position was consequently very Libya-centric.2554Interviewee I28 This was reflected in reports that the first semester of 2017 saw Malta and the European Commission take charge of European policies.2555LUDLOW, P., “European Council Briefing Note 2017/2,” Eurocomment, Leuven University Press, 9-10/03/2017 Malta specifically advocated to train and fund the Libyan coastguard and Muscat went as far as describing the Libyan coastguard as “one of the parts of state that functions.”2556Interviewee I28
To justify this operation regardless of the human rights conditions in Libya, which he was well aware of, Muscat said that “what happens to people in Libya is a big issue but since its their territory, we let them do their job."2557Interviewee I28 The situations of “migrants” in Libya was thus an acceptable collateral for the attempted limitation of migration inflows because it ostensibly could not be traced “directly” to the European Union.
This argument is further supported by Malta’s participation in ShadeMed Conferences. Keith Mizzi from the Armed Forces of Malta attended a ShadeMed meeting in April 2016 where it was made clear that “migrants” suffer abuse in Libyan detention center and that Libya is considered unsafe under international law.2558EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], pp. 4, 6. Clear reports of the horrific situation faced by “migrants” in Libya and a general consensus that Libya could not be considered a “safe country” were explicitly communicated at this conference. From 2015 to 2017, Keith Mizzi was present at ShadeMed conferences in which the dire “situation faced by migrants in Libyan detention centres and the abuse they suffer” as well as the fact that Libya was not a safe country to disembark migrants was repeatedly reported and discussed.2559EUNAVFOR MED operations SOPHIA, SHADE MED Working Groups on Operations and CIS Outcome, 15/03/2016, https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf, retrieved on 02/07/2024 [https://web.archive.org/web/20240702154406/https://www.marina.difesa.it/EN/operations/shade_med/Documents/SHADE_MED_WGs-March_2016_Outcomes.pdf] [Annex 8], pp. 4, 6. 2560EUNAVFOR MED, SHADE MED Working Group, 12/05/2016, https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf, retrieved on 03/07/2024 [https://web.archive.org/web/20240703102025/https://eeas.europa.eu/archives/csdp/missions-and-operations/eunavfor-med/shade/pdf/2016/2016_working_group_minutes.pdf], p. 16.
In January 2017, Interior Minister Carmelo Abela met with Italian Interior Minister Minniti agreeing to produce a common solution to migration “issues” shortly before Minniti negotiated the Memorandum of Understanding with Libya.2561“EU migrant solution needed say Minniti and Abela in Malta,” ANSA med, 04/01/2017, http://www.ansamed.info/ansamed/en/news/sections/politics/2017/01/04/eu-migrant-solution-needed-say-minniti-abela_22e1f5d2-1e00-43b1-a9b3-889f05f89d9b.html, retrieved on 10/09/2020 [https://web.archive.org/web/20200910083257/http://www.ansamed.info/ansamed/en/news/sections/politics/2017/01/04/eu-migrant-solution-needed-say-minniti-abela_22e1f5d2-1e00-43b1-a9b3-889f05f89d9b.html] Malta’s later secret deal with Libya could have likely been discussed. Around the same time, Malta presented a non-paper on migration control at the Justice and Home Affairs Council. The paper suggested a border-crossing patrol on Libya’s coast in which Maltese and Libyan ships as well as Frontex were supposed to “take intercepted migrant boats back to Libyan shores.”2562VELLA, M., “Malta wants EU-Libyan patrols to stop boat migrants,” Malta Today, 18/01/2017, https://www.maltatoday.com.mt/news/europe/73547/malta_wants_eulibyan_patrols_to_stop_boat_migrants, retrieved on 10/09/2020 [https://web.archive.org/web/20240929105347/https://www.maltatoday.com.mt/news/europe/73547/malta_wants_eulibyan_patrols_to_stop_boat_migrants] It appears that Foreign Minister George Vella pushed back on this idea, stating that Libya would have to be stabilized first.2563VELLA, M., “Malta wants EU-Libyan patrols to stop boat migrants,” Malta Today, 18/01/2017, https://www.maltatoday.com.mt/news/europe/73547/malta_wants_eulibyan_patrols_to_stop_boat_migrants, retrieved on 10/09/2020 [https://web.archive.org/web/20240929105347/https://www.maltatoday.com.mt/news/europe/73547/malta_wants_eulibyan_patrols_to_stop_boat_migrants] Vella left his office a few months later.
Shortly after the non-paper, in February 2017, Muscat hosted the summit at which the Malta Declaration was signed. The declaration reaffirmed the policy of training and funding the Libyan coastguard. Leading up to the conference, Malta expressed its desire for a Turkey-style deal with Libya.2564BACZYNSKA, G., “EU needs Turkish-style migration deal on Libya: Maltese PM,” Reuters, 18/01/2017, https://www.reuters.com/article/us-europe-migrants-libya/eu-needs-turkish-style-migration-deal-on-libya-maltese-pm-idUSKBN152304, retrieved on 10/09/2020 [https://web.archive.org/web/20200910083725/https://www.reuters.com/article/us-europe-migrants-libya/eu-needs-turkish-style-migration-deal-on-libya-maltese-pm-idUSKBN152304] A Maltese document also proposed to move Sophia closer to the European shores. Libyan forces were supposed to take the lead but with “strong and lasting EU support.”2565BACZYNSKA, G., “EU needs Turkish-style migration deal on Libya: Maltese PM,” Reuters, 18/01/2017, https://www.reuters.com/article/us-europe-migrants-libya/eu-needs-turkish-style-migration-deal-on-libya-maltese-pm-idUSKBN152304, retrieved on 10/09/2020 [https://web.archive.org/web/20200910083725/https://www.reuters.com/article/us-europe-migrants-libya/eu-needs-turkish-style-migration-deal-on-libya-maltese-pm-idUSKBN152304] With regards to Muscat’s relation with Libyan officials, he stated that he was personally in contact with Libyan officials about managing migration flows after the GNA’s formation.2566Interviewee I76
IIIMalta-Libya Deal
In summer 2018, Malta closed a secret agreement with the Libyan coastguard which provided that the Armed Forces of Malta were to coordinate with the Libyan coastguard to intercept “migrants” headed towards Malta.2567MARTIN, I., “Exposed: Malta’s secret migrant deal with Libya,” Times of Malta, 10/11/2019, https://timesofmalta.com/articles/view/exposed-maltas-secret-migrant-deal-with-libya.748800, retrieved 10/09/2020 [https://web.archive.org/web/20200910084533/https://timesofmalta.com/articles/view/exposed-maltas-secret-migrant-deal-with-libya.748800] The central figure negotiating this deal was Neville Gafa, a childhood friend of Muscat and his chief of staff Keith Schembri.2568CILIA, J., “Somehow, nearly half of Malta’s modern Prime Ministers have come from this one Birkirkara College,” Lovin Malta, 28/01/2020, https://lovinmalta.com/news/news-politics/somehow-nearly-half-of-maltas-modern-prime-ministers-have-come-from-this-one-birkirkara-college/, retrieved 10/09/2020 [https://web.archive.org/web/20200910084623/https://lovinmalta.com/news/news-politics/somehow-nearly-half-of-maltas-modern-prime-ministers-have-come-from-this-one-birkirkara-college/] Gafa covertly worked as a “person of trust” within the Office of the Prime Minister.2569BORG, J., “How Joseph Muscat and Neville Gafa played a game of hide and seek,” Times of Malta, 11/06/2019, https://timesofmalta.com/articles/view/how-joseph-muscat-and-neville-gafa-played-a-game-of-hide-and-seek.720988, retrieved 10/09/2020 [https://web.archive.org/web/20200910084709/https://timesofmalta.com/articles/view/how-joseph-muscat-and-neville-gafa-played-a-game-of-hide-and-seek.720988] Initial claims that Gafa merely went on “personal trips” to Libya were contradicted by first a leaked invitation bearing an official Maltese letterhead and more recently an admission by Gafa himself. Under oath, Gafa testified that he acted as the Maltese government’s go-between in dealing with the Libyan authorities on migration issues.2570BONNICI, J., “Confirmed: Neville Gafa held a diplomatic passport and went to Libya for a covert meeting along with infamous Kenneth from Castille,” Lovin Malta, 19/02/2020, https://lovinmalta.com/news/confirmed-neville-gafa-held-a-diplomatic-passport-and-went-to-libya-for-a-covert-meeting-along-with-infamous-kenneth-from-castille/, retrieved 10/09/2020 [https://web.archive.org/web/20200910084750/https://lovinmalta.com/news/confirmed-neville-gafa-held-a-diplomatic-passport-and-went-to-libya-for-a-covert-meeting-along-with-infamous-kenneth-from-castille/] On Facebook, Gafa has repeatedly posted that he would meet with the Libyan Interior Minister regularly to coordinate migration control.2571GAFA, N., Facebook Post, 15/05/2020 [Annex 16] He admitted to having direct contacts with the Libyan coastguard, saying:
“I used to receive information of boats departing from Libya and their coordinates from the Armed Forces of Malta and would relay this directly to the Libyan coastguard. My work was to cover Libyan waters only. […] These were operations that would last for hours on end. I would be calling every 15 minutes, relaying new coordinates and tapping different contacts in the Libyan coastguard. We did not have red carpet treatment and it took a lot of patience and many hours of convincing.”2572SANSON, K., “Neville Gafà: Muscat’s loyal servant and the secret Libya migration deal,” Malta Today, 24/02/2020, https://www.maltatoday.com.mt/news/national/100536/nevile_gafa_2loyal_servent_migration_deal_libya, retrieved 10/09/2020 [https://web.archive.org/web/20200910084857/https://www.maltatoday.com.mt/news/national/100536/nevile_gafa_2loyal_servent_migration_deal_libya]
Other reports indicated that he met with militia leaders as well.2573CAMILLERI, I., “Neville Gafa again refuses to explain his role in delegation to Libya,” Times of Malta, 25/06/2019, https://timesofmalta.com/articles/view/neville-gafa-again-refuses-to-explain-his-role-in-delegation-to-libya.716592, retrieved 10/09/2020 [https://web.archive.org/web/20200910084937/https://timesofmalta.com/articles/view/neville-gafa-again-refuses-to-explain-his-role-in-delegation-to-libya.716592] Muscat denies the existence of such an agreement.2574Interviewee I76 Initially, he even refused to recognize that Gafa was working for him until admitting it became inevitable.2575BORG, J., “How Joseph Muscat and Neville Gafa played a game of hide and seek,” Times of Malta, 11/06/2019, https://timesofmalta.com/articles/view/how-joseph-muscat-and-neville-gafa-played-a-game-of-hide-and-seek.720988, retrieved 10/09/2020 [https://web.archive.org/web/20200910084709/https://timesofmalta.com/articles/view/how-joseph-muscat-and-neville-gafa-played-a-game-of-hide-and-seek.720988]
The ‘Easter Push-Back’ however removed any doubt, at least with respect to Gafa’s individual criminal liability. In the night of 9 to 10 April 2020, a boat on which a group of people were fleeing on from Libya was left adrift for at least three days at sea without any assistance. The fishing vessel ‘Dar al Salam 1’ was later contracted to take the asylum seekers on board before transferring them to Libya. As per Alarm-phone, “[t]welve people have lost their lives due to European action and inaction in the Mediterranean Sea. Authorities in Malta, Italy, Libya, Portugal, Germany, as well as the EU border agency Frontex were informed about a group of 55 [eventually 63 people] in distress at sea but chose to let twelve of them die of thirst and drowning, while orchestrating the forced return of the survivors back to… a place of war, torture, and rape.”2576Alarmphone, “Twelve Deaths and a Secret Push-Back to Libya,” 16/04/2020, https://alarmphone.org/en/2020/04/16/twelve-deaths-and-a-secret-push-back-to-libya/, retrieved on 19/05/2024 [https://web.archive.org/web/20230127233420/https://alarmphone.org/en/2020/04/16/twelve-deaths-and-a-secret-push-back-to-libya/] Gafa testified under oath and admitted his involvement in this incident:
“I confirm that on Easter night and the days that followed I was involved in a mission in which a boat with 51 irregular migrants including 8 women and 3 minors were taken to port in Tripoli. On the same boat were five corpses.”2577CARABOTT, S., “Anger as Neville Gafà says he Coordinated Libya Pushback on OPM orders,” Times of Malta, 30/04/2020, https://timesofmalta.com/article/neville-gafa-says-he-coordinated-libya-pushback-on-opm-orders.788951, retrieved on 16/05/204 [https://web.archive.org/web/20240425015658/https://timesofmalta.com/article/neville-gafa-says-he-coordinated-libya-pushback-on-opm-orders.788951]
“Former OPM official Neville Gafá has claimed that he was ‘operating under Libyan jurisdiction’ when he coordinated a pushback of migrants at Malta’s request on Easter Sunday last year… Gafá said his role was to relay coordinates to the coastguard and home affairs minister in Libya… For that purpose he kept ‘continuous direct contact’ with former OPM chief of staff, now Finance Minister Clyde Caruana, as well as with the AFM Commander, saying they had saved ‘hundreds if not thousands of migrants,’ by working together over the years.”2578BRINCAT, E., “Neville Gafà says he coordinated migrant pushback ‘under Libyan jurisdiction’,” Times of Malta, 19/05/2021, https://timesofmalta.com/articles/view/neville-gafa-says-he-coordinated-migrant-pushback-under-libyan.873103, retrieved on 19/05/2024 [https://web.archive.org/web/20240425104649/https://timesofmalta.com/article/neville-gafa-says-he-coordinated-migrant-pushback-under-libyan.873103]
Yet to date Gafa has never been punished, convicted or indicted for this incident and more broadly his role in the execution of EU’s 2nd policy.
IVThe Criminalization of NGOs
In 2018, Malta opened four criminal investigations into NGO rescue ships which at times disabled vessels from conducting SAR missions for several months.2579SOS MEDITERANEE, “Ambulances of the Sea’ are being targeted - and thousands in the Med will die because of it,” Euronews, 27/12/18 https://www.euronews.com/my-europe/2018/12/27/ambulances-of-the-sea-are-being-targeted-and-thousands-will-die-in-the-med-because-of-it, retrieved 31/05/2025 [https://web.archive.org/web/20200910085432/https://webcache.googleusercontent.com/search?q=cache%3Av5Y_sStZdVEJ%3Ahttps%3A%2F%2Fwww.euronews.com%2F2018%2F12%2F27%2Fambulances-of-the-sea-are-being-targeted-and-thousands-will-die-in-the-med-because-of-it+&cd=1&hl=fr&ct=clnk&gl=fr] 2580European Union Agency for Fundamental Rights, Fundamental Rights Considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations, 01/10/2018, https://fra.europa.eu/en/publication/2019/fundamental-rights-considerations-ngo-ships-involved-search-and-rescue, retrieved 10/09/2020 [https://web.archive.org/web/20200910085039/https://fra.europa.eu/en/publication/2019/fundamental-rights-considerations-ngo-ships-involved-search-and-rescue] On 4 August 2020, a vessel having rescued 30 “migrants” at sea was prevented from disembarking in Malta, despite requests from the United Nations High Commissioner for Refugees, the International Organization for Migration and the International Chamber of Shipping. Muscat has repeatedly stated that NGO boats are a pull factor for smugglers,2581Interviewee I28 further affirming that NGOs were politicizing SAR operations by attempting to reach “migrants” before the Libyan coastguard, therefore “facilitating” smuggler activity.2582Interviewee I28
Muscat further personally pushed for the criminalization of NGOs during European Council meetings: In one instance during a discussion surrounding the criminalization of NGOs and the warning issued to not obstruct “rescue” operations by the LYCG during the June 2018 Council meeting, Muscat pushed for even more aggressive language, demanding the extra addition of these sentences: “Vessels should abide by the instructions given by the appropriate Search and Rescue authorities, the Libyan coastguard being the official competent Search and Rescue authority in the Libyan Search and Rescue Region. Member states should take all necessary measures in case of violations.”2583LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 21. During REV 3, Muscat’s amendment was rejected, mostly thanks to Sanchez’s efforts, to come back to the Franco-Italian amendment as a point of consensus.2584LUDLOW P., “European Council Briefing Note 2018/4,” Eurocomment, Leuven University Press, p. 17.
DKey individuals
Suspects
-
Neville Gafa>
2013–2020
MaltaCoordinator of the Office of PM
-
Michael Farrugia>
2017–2020
MaltaInterior Minister
-
Keith Schembri>
2013–2019
MaltaChief of Staff
-
Joseph Muscat>
2013–2020
MaltaPrime Minister
-
Jeffrey Curmi>
2013–2022
MaltaCommander of Armed Forces
-
Carmelo Abela>
Involved
-
Jonathan Cardona>
2014–2019
MaltaSherpa
-
George Vella>
03/2013–06/2017
MaltaCouncil of the European UnionForeign Minister
- 2522Amnesty International, “Malta is ramping up despicable and illegal migrant pushbacks,” Press Release, 08/09/2020, https://www.amnesty.org.uk/press-releases/malta-ramping-despicable-and-illegal-migrant-pushbacks-new-report, retrieved on 16/04/2021 [https://web.archive.org/web/20210127014931/https://www.amnesty.org.uk/press-releases/malta-ramping-despicable-and-illegal-migrant-pushbacks-new-report]
- 2523Interviewee I28
- 2524“Malta PM hands over to colleague after resignation,” France24, 13/01/2020, https://www.france24.com/en/20200113-malta-pm-hands-over-to-colleague-after-resignation, retrieved on 10/09/2020 [https://web.archive.org/web/20200910082127/https://www.france24.com/en/20200113-malta-pm-hands-over-to-colleague-after-resignation]
- 2525Government of Malta, Portfolio Ministry for Home Affairs, National Security and Law Enforcement, https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx, retrieved 10/09/2020 [https://web.archive.org/web/20200928215549/https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Pages/Ministries%202020/homeaffairs.aspx]
- 2526Ibid.
XI
Austria
AExecutive Summary
During the relevant period, the Austrian government underwent multiple political changes, its migration policy became progressively stricter. While Chancellor Faymann had coordinated an acceptance of refugees stranded in Hungary into Austria and was relatively distant from the Mediterranean question, Foreign Minister and later Chancellor Kurz pushed for closing the Mediterranean route, claiming that rescue NGOs are a “pull factor” and opposing the inclusion of search and rescue in EU operations’ mandates. Although the extent to which Austria influenced the EU decision-making is yet to be assessed, its hard stance became increasingly majoritarian in EU institutions.
In 2015, Foreign Minister Kurz called to replicate Australia’s model of systematic interception and return of “migrants” as well as the country’s offshore detention model. Kurz continued to advocate for this policy despite critics’ repeated clarifications that such a policy would constitute a serious breach of international law given the undisputed reports on the grave crimes being committed against “migrants” in Libya.
Kurz doubled down on this position in 2017, pushing for similar tactics with respect to the Western Balkan route which were widely considered to perpetrate violence against “migrants”. This was accompanied by Austrian support for Italy’s coordination with the LYCG. Austria similarly denounced rescue NGOs for alleged criminal activity. In essence, under Kurz and SPÖ rule, Austria advocated for systematic refoulement of vulnerable “migrants” attempting to cross the Mediterranean, recurrently lauding Frontex’s work in the pursuit of this objective.
Upon its assumption of the Council Presidency in the second half of 2018, Austria saw its chance to expand the EU’s devastating migration policy. One of its main objectives was to strengthen Frontex. According to Kurz himself, he had been pushing for “stopping illegal migration” and a code of conduct for NGOs for years. These policy visions formed the basis for Austria’s presidency. Third country cooperation was a key element of this policy. The June 2018 European Council Conclusions which Kurz credited Austria for proposed to reinforce Frontex and called for unobstructed work of the LYCG. After the end of Austria’s Presidency, the Vice President praised the decreasing arrival numbers. All these developments and statements of “successful” reorientation of migration policy unfolded against a backdrop of record-breaking death tolls and reports of the grave crimes committed against “migrants” in Libya. Despite the already extreme EU policies in the Mediterranean, aimed at intercepting and pulling back “migrants” to Libya, Austria was still not “satisfied” and pushed for further measures to effectively close the Mediterranean route at the cost of systematically subjecting “migrants” to deportations, enforced disappearances, torture, slavery and rape.
Austria’s coordination and alliance with the Visegrad group resulted in a critical weight in the reorientation of Europe’s policy position.
BDecision-Making Structures
The Austrian government is formed by the Chancellor, Federal Ministers, and Secretaries-General. Migration policy specifically is part of the portfolio of the Office of the Chancellor, the Interior Ministry, and the Foreign Ministry (for Europe, Integration and External Affairs). The Foreign Ministry is tasked with relations with third countries and development policy. Migration policy, “irregular migration”, and border control are part of the Interior Ministry’s portfolio.2585International Organization for Migration European Migration Network, Die Gestaltung der Asyl- und Migrationspolitik in Österreich, 2016, https://www.emn.at/wp-content/uploads/2017/01/Organisationsstudie_AT-EMN-NCP_2016.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185325/https://www.emn.at/wp-content/uploads/2017/01/Organisationsstudie_AT-EMN-NCP_2016.pdf]
The Austrian Chancellorship was marked by repeated changes throughout the relevant period. Werner Fayman (social democratic party SPÖ) assumed this position until May 2016, followed by his former Vice Chancellor Reinhold Mitterlehner (Christian Democratic Party ÖVP) who only stayed in office for a month. Christian Kern (SPÖ) became Chancellor until December 2017 and was succeeded by Sebastian Kurz (ÖVP) who stayed in office the longest and was certainly the most notorious opponent to migration among the cited Chancellors. Due to an internal political scandal involving his Vice Chancellor Heinz-Christian Strache (right-wing populist party FPÖ), Kurz resigned in May 2019. He was replaced by Hartwig Löser (2019) and Brigitte Bierlein (2019 – 2020). Kurz was reelected in January 2020.
IOffice of the Chancellor
The Chancellor is assisted by a Secretary General who oversees multiple divisions, including one on the European Union. This division is tasked with coordination of Austrian representation at the European Union, external relations, and security policy. The Office of the Chancellor also comprises two ministers, one of whom is the Minister for the European Union and the Constitution. This position is a particular feature of the Austrian government and does not entail the leadership of a Ministry. While the position of an Office of the Chancellor-tied minister has always existed, this specific EU portfolio was reassigned in June 2019, moving parts of “European Policy” coordination to the Office of the Chancellor.2586Bundeskanzleramt Austria, Europapolitik, https://www.bundeskanzleramt.gv.at/agenda/europapolitik.html, retrieved on 29/09/2020 [https://web.archive.org/web/20200908062124/https://www.bundeskanzleramt.gv.at/agenda/europapolitik.html] This position was assumed by Alexander Schallenberg from 2019 until 2025.2587Austrian Foreign Ministry, The Federal Minister for European and International Affairs, https://www.bmeia.gv.at/en/the-ministry/the-minister/, retrieved on 29/09/2020 [https://web.archive.org/web/20201002214504/https://www.bmeia.gv.at/en/the-ministry/the-minister/]
IIInterior Ministry
The Interior Ministry was led successively by Johanna Mikl-Leitner (2011- April 2016), Wolfgang Sobotka (April 2016 – December 2017), Herbert Kickl (December 2017 – May 2019), and Eckart Ratz (May 2019 – June 2019) The minister is directly supported by a cabinet and a Secretary General. Relevant units within the Interior Ministry include the division for International Affairs and the European Union; National and International Migration Strategy, Border Management, and Asylum and Return.2588Austrian Interior Ministry, BMI Organigrammm, 06/2020, https://bmi.gv.at/103/Organigramme/files/BMI_Organigramm_Stand_06_2020_A0.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201002214617/https://bmi.gv.at/103/Organigramme/files/BMI_Organigramm_Stand_06_2020_A0.pdf]
Within the Interior Ministry the Office for International Affairs, the Unit for National and International Migration Strategy, the Unit for Border Management and Police, and the Unit for Asylum and Return are key in devising and implementing Austrian migration policy.
The Office for International Affairs is tasked with coordinating all units concerned with international affairs, including the development and implementation of the International Strategy of the Interior Ministry.2589Austrian Interior Ministry, Abteilung I/4 (Internationale Angelegenheiten), https://bmi.gv.at/103/Sektion_I/Gruppe_B/Abteilung_I_04/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185030/https://bmi.gv.at/103/Sektion_I/Gruppe_B/Abteilung_I_04/start.aspx]
The Unit for National and International Migration Strategy monitors and coordinates migration-related matters in coordination with relevant units on the national, European, and international level.2590Austrian Interior Ministry, Abteilung V/5 (Nationale und internationale Migrationsstrategie), https://bmi.gv.at/103/Sektion_V/Gruppe_A/Abteilung_V_5/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201002214859/https://bmi.gv.at/103/Sektion_V/Gruppe_A/Abteilung_V_5/start.aspx] It is responsible for the development of the Migration Strategy.2591Austrian Interior Ministry, Abteilung V/5 (Nationale und internationale Migrationsstrategie), https://bmi.gv.at/103/Sektion_V/Gruppe_A/Abteilung_V_5/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201002214859/https://bmi.gv.at/103/Sektion_V/Gruppe_A/Abteilung_V_5/start.aspx]
The Unit for Border Management and Police oversees border management and surveillance, including strategic direction and decisions concerning Austrian participation in bilateral and multilateral border police operations outside of Austria.2592Austrian Interior Ministry, Abteilung V/6 (Integriertes Grenzmanagement), https://bmi.gv.at/103/Sektion_V/Gruppe_B/Abteilung_V_6/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201004184753/https://bmi.gv.at/103/Sektion_V/Gruppe_B/Abteilung_V_6/start.aspx] It is accordingly the primary Frontex contact within the Austrian government and supervises border police cooperation with neighboring and third countries.2593Austrian Interior Ministry, Abteilung V/6 (Integriertes Grenzmanagement), https://bmi.gv.at/103/Sektion_V/Gruppe_B/Abteilung_V_6/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201004184753/https://bmi.gv.at/103/Sektion_V/Gruppe_B/Abteilung_V_6/start.aspx]
The Unit for Asylum and Return is, among other things, responsible for fundamental matters relating to asylum and migration including within international and European affairs.2594Austrian Interior Ministry, Abteilung V/8 (Asyl), https://bmi.gv.at/103/Sektion_V/Gruppe_C/Abteilung_V_8/start.aspx,retrieved on 20/09/2020 [https://web.archive.org/web/20190725171459/https://bmi.gv.at/103/Sektion_V/Gruppe_C/Abteilung_V_8/start.aspx] As such, it coordinates the overall Migration and Asylum Strategy.2595Austrian Interior Ministry, Abteilung V/8 (Asyl), https://bmi.gv.at/103/Sektion_V/Gruppe_C/Abteilung_V_8/start.aspx,retrieved on 20/09/2020 [https://web.archive.org/web/20190725171459/https://bmi.gv.at/103/Sektion_V/Gruppe_C/Abteilung_V_8/start.aspx]
IIIForeign Ministry
The position of Foreign Minister was held by Sebastian Kurz (2014 – 2017) and Karin Kneissl (2017-2019). The Minister is directly supported by a cabinet and a Secretary-General. Relevant departments include the offices for Central Affairs, International Affairs, Europe, and Development.2596Austrian Interior Ministry, Das Aussenministerium, 07/2015, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185505/https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf]
The Austrian ambassadors to Libya were Franz Hoerlberger (2012- February 2015), Ronald Sturm (February 2015 – 2019), and Christoph Meyenburg (2019 – 2024).
In the Foreign Ministry the Offices for central Affairs, for Political Affairs, for Europe and for development were key in devising and approving the international and European aspects of Austria’s and European migration policy.
The Office for Central Affairs includes the following divisions: International Law; European Law; and Human Rights.2597Austrian Interior Ministry, Das Aussenministerium, 07/2015, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185505/https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf] These units are in charge of matters relating to human rights, International law and European Union law, including the examination and evaluation of legislative proposals.2598Austrian Interior Ministry, Geschäftseinteilung – Abteilung I.5, https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-i5/, retrieved on 20/09/2020 [https://web.archive.org/web/20150905222936/http://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-i5/] For the EU specifically, the European law division is responsible for advising Austria in its development of Austrian positions within the EU.2599Austrian Interior Ministry, Geschäftseinteilung – Abteilung I.6, https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-i6/, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185901/https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-i6/]
Formerly the Office for International Affairs now named Political Affairs, this office comprises units for Common Foreign and Security Policy, Common Security & Defence Policy, and European Southern Neighborhood Policy.2600Austrian Interior Ministry, Das Aussenministerium, 07/2015, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185505/https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf] This office works on the European Union’s Common Foreign and Security Policy as well as the Common Security and Defence Policy.2601Austrian Interior Ministry, Geschäftseinteilung – Abteilung II.1, https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-ii1/, retrieved on 20/09/2020 [https://web.archive.org/web/20201004190217/https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-ii1/] It further works on the EU’s Southern Neighborhood Policy.
The Office for Europe assumes a coordinative function and coordinates and assists with the Austrian position at the EU and specifically the Coreper, the European Council, and the Council of the European Union.2602Austrian Interior Ministry, Geschäftseinteilung – Abteilung III.2, https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-iii2/, retrieved on 20/09/2020 [https://web.archive.org/web/20150905221111/http://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-iii2/]
The Office for Development includes divisions on Multilateral Development Cooperation, and Development Policy, Strategy & Evaluation.2603Austrian Interior Ministry, Das Aussenministerium, 07/2015, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185505/https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Ministerium/Organigramm_Juli_2015.pdf] It includes a unit specifically designated to administer and expand development projects within an EU framework.2604Austrian Interior Ministry, Geschäftseinteilung – Abteilung VII.1, https://www.bmeia.gv.at/das-ministerium/geschaeftseinteilung/organisation/show/abteilung-vii1/, retrieved on 20/09/2020 [https://web.archive.org/web/20210903135214/https://www.bmeia.gv.at/ministerium/geschaeftseinteilung/organisation/show/abteilung-vii1/]
CImplication in Criminal Policies
The Austrian government underwent various changes throughout the relevant time period. Nonetheless, the main protagonists with a relevant period of governance and most documented actions on migration policy can be identified as Werner Faymann and Sebastian Kurz. Faymann was implicated in Germany’s “border opening” in 2015, permitting refugees from Hungary to be admitted to Austria as well as cross to Germany for a temporary time period.2605GROTTE, J., “Die veränderte Fluchtmigration in den Jahren 2014 bis 2016: Reaktionen und Maßnahmen in Deutschland,” Bundesamt für Migration und Flüchtlinge, European Migration Network, 2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/11b_germany_changing_influx_final_de_0.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004190730/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/11b_germany_changing_influx_final_de_0.pdf], pp. 22-24. Like Germany, Faymann later supported the closure of the Balkan route.2606Amnesty International, Amnesty International Report 2016/17, 2017, https://reliefweb.int/sites/reliefweb.int/files/resources/POL1048002017ENGLISH.PDF, retrieved on 20/09/2020 [https://web.archive.org/web/20170505100005/http://reliefweb.int/sites/reliefweb.int/files/resources/POL1048002017ENGLISH.PDF], p. 41. Kurz was an avid advocate for closing the Mediterranean route and preventing “migrants” from reaching Europe, and thus was the central Austrian figure in migration policy as first Foreign Minister and then Chancellor.
Austria pushed for strict border control and propagated the argument of search and rescue (SAR) creating a pull factor, similar to Hungary and at times Italy. The discussions surrounding Operation Irini illustrated this position, when Austria alongside Hungary opposed the SAR aspects of the mission because they were “really upset that any of these boats would have to rescue people in distress and thought this would create a new pull factor.”2607Interviewee I57 2608Interviewee I51
As a Member State, Austria was of course generally a co-perpetrator of the criminal policies discussed here, more specific details available on its proactive involvement therein are elaborated on in the following sections.
ISuggestion of Australian Model (2015 – 2016)
First in May 2015 and later in June 2016, Austrian politicians – Strache and Kurz – advocated for a migration policy modeled after Australia’s policy. The proposal was to intercept “migrants” and either return them immediately or detain them on islands such as Lesbos,2609“Kurz will Flüchtlinge auf Mittelmeerinseln sammeln und internieren,” Der Standard, 05/06/2016, https://www.derstandard.at/story/2000038263249/kurz-will-migranten-zurueckschicken-oder-internieren, retrieved on 20/09/20 a position which was regularly repeated. Kurz has called for the EU to take tougher action against “illegal” immigrants: "We must stop them at the external border…reception camps run by international organizations in Libya… should be set up… The Mediterranean route must be closed now”.2610“Die Mittelmeerroute muss jetzt geschlossen werden,” Zeit Online, 20/08/2017, https://www.zeit.de/politik/ausland/2017-08/sebastian-kurz-oesterreich-fluechtlinge-eu-aussengrenzen, retrieved on 30/05/2025 [https://web.archive.org/web/20201004191748/https://www.zeit.de/zustimmung?url=https%3A%2F%2Fwww.zeit.de%2Fpolitik%2Fausland%2F2017-08%2Fsebastian-kurz-oesterreich-fluechtlinge-eu-aussengrenzen]
II“Closing the Mediterranean Route” (2017)
In a December 2017 Op-Ed by newly instated Chancellor Kurz, the latter expressed dissatisfaction with the 2016 failure to close the Mediterranean route as they had “managed to… [with] the Western Balkans route.”2611KURZ, S., “Only by regaining control can we solve the migration and refugee crisis,” TIME, 18/12/2017, https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/, retrieved on 20/09/2020 [https://web.archive.org/save/https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/] This lauded closure has drawn criticism for the practice of violating due process rights, executing pushbacks, and violence against “migrants”.2612Belgrade Centre for Human Rights, Macedonian Young Lawyers Association and Oxfam, A dangerous ‘Game’, April 2017, https://www-cdn.oxfam.org/s3fs-public/file_attachments/bp-dangerous-game-pushback-migrants-refugees-060417-en_0.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004192038/https://www-cdn.oxfam.org/s3fs-public/file_attachments/bp-dangerous-game-pushback-migrants-refugees-060417-en_0.pdf] He went on to praise Italy’s actions which led to an “improve[ment]” of the situation, especially the NGO code of conduct and the overall “cooperation with the Libyan coastguard” which has “considerably contributed to preventing people from undertaking the often deadly journey.”2613KURZ, S., “Only by regaining control can we solve the migration and refugee crisis,” TIME, 18/12/2017, https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/, retrieved on 20/09/2020 [https://web.archive.org/save/https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/] This positive depiction is again contrasted by condemnation from civil society actors for violating international law and impeding SAR by criminalizing NGOs.2614Amnesty International, Europe: Punishing compassion: Solidarity on trial in Fortress Europe, 03/03/2020, https://www.amnesty.org/en/documents/eur01/1828/2020/en/, retrieved on 21/08/2024 [https://web.archive.org/web/20240829071913/https://www.amnesty.org/en/documents/eur01/1828/2020/en/], pp. 73-74. Kurz subsequently called for a reinforcement of the “increasingly… more effective Frontex” and pondered to intercept and return “migrants” to their origin countries as having to become “standard procedure.”2615KURZ, S., “Only by regaining control can we solve the migration and refugee crisis,” TIME, 18/12/2017, https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/, retrieved on 20/09/2020 [https://web.archive.org/save/https://time.com/5068561/sebastian-kurz-austria-chancellor-migrant-crisis/] That year, Austria’s Interior Minister was also part of the Contact Group for the Central Mediterranean Migration Route which was set up in 2017 as an information exchange network between European and African countries.2616Interviewee I66
IIIAustrian Council Presidency (2018)
Austria assumed presidency of the Council of the European Union in the second half of 2018 (July – December). Its motto was “A Europe that protects” and supposed to concentrate on migration as the primary focus.2617MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 20/09/2020 [https://web.archive.org/web/20201004192514/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435?reduced=true] Two main goals were articulated by Austria ahead of its term: the creation of disembarkation platforms outside of Europe and the reinforcement of Frontex.2618MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 20/09/2020 [https://web.archive.org/web/20201004192514/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435?reduced=true] The latter was supported by Czech Prime Minister Babis at a Visegrad group meeting at which Kurz was present.2619“Visegrad countries urge stronger EU border defense,” DW, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 20/09/2020 [https://web.archive.org/web/20201008145544/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264] Overall, Austria’s Presidency announced its intention to develop “a new, better protection system under which no applications for asylum are filed on EU territory.”2620PEEL, M. and POLITI, J., “Austria to push hardline migration policy in EU presidency,” Financial Times, https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d, retrieved on 20/09/2020 [https://web.archive.org/web/20200930091413/https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d] One of the voiced proposals suggested the creation of “camps in Northern Africa to send migrants saved at sea,” which was rejected by Libya.2621PEEL, M. and POLITI, J., “Austria to push hardline migration policy in EU presidency,” Financial Times, https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d, retrieved on 20/09/2020 [https://web.archive.org/web/20200930091413/https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d] The European Commission cautioned shortly after that this “might” violate international law.2622PEEL, M. and POLITI, J., “Austria to push hardline migration policy in EU presidency,” Financial Times, https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d, retrieved on 20/09/2020 [https://web.archive.org/web/20200930091413/https://www.ft.com/content/6a856100-7860-11e8-bc55-50daf11b720d] At a press conference at the beginning of Austria’s presidency, Kurz expressed that he had been advocating for a stricter course on migration and had pushed for stopping “illegal” migration and a code of conduct for NGOs for years.2623“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” die Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 20/09/2020 [https://web.archive.org/web/20201004193543/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] On a separate occasion, he also proposed an “axis of the willing against illegal migration among Austria, Italy… and Germany [specifically Seehofer].”2624TIEKSTRA, W., “The future of the European Migration System: unlikely partners?,” July 2018, Clingendael, https://www.clingendael.org/sites/default/files/2018-07/Strategic_Alert_Migration_Security_July2018.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20200930091814/https://www.clingendael.org/sites/default/files/2018-07/Strategic_Alert_Migration_Security_July2018.pdf] He did not put forward a specific agenda other than a tough position on “illegal migration.” It is unclear if anything ever resulted out of this initiative.
The Austrian rhetoric adopted under Kurz’ government displayed an apparent lack of understanding of the principle of non-refoulement and a complete disregard for the safety of “migrants” themselves.
Shortly into Austria’s presidency term, Kurz was already describing a “palpable change of mindset” among Member States.2625“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” die Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 20/09/2020 [https://web.archive.org/web/20201004193543/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] According to him, the 28 June 2018 decision by the European Council, proposing to reinforce Frontex and removing obstacles to the LYCG’s “work”, was the first one to actually prioritize “protection” of the external borders.2626“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” die Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 20/09/2020 [https://web.archive.org/web/20201004193543/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] In its presidency function, Austria itself had again called for a strengthening of Frontex, cooperation with third countries and a code of conduct for NGOs. His Vice Chancellor Strache further stated that “the political mandate for Frontex needs to be changed and must clearly include defense against illegal migration and to return rescued refugees instead of bringing them to Europe.”2627“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” die Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 20/09/2020 [https://web.archive.org/web/20201004193543/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] Through its rhetorical framing and systematic insistence on hard-line policies, in particular in diplomatic and public forums, Austria fostered the criminalization and dehumanization of “migrants”, therefore fueling the criminal policies adopted by the European Union.
After Austria’s Council Presidency conclusion, Interior Minister Kickl boasted about Austria being responsible for the change of paradigm in migration policy present in the European Council Conclusions.2628“Kurz, Strache und Kickl äußern sich zur deutschen Asylpolitik,” die Welt, 03/07/2018, https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html#Comments, retrieved on 20/09/2020 [https://web.archive.org/web/20201004193543/https://www.welt.de/politik/ausland/video178690506/Bundeskanzleramt-in-Wien-Kurz-Strache-und-Kickl-aeussern-sich-zur-deutschen-Asylpolitik.html] This change was specifically credited to the informal 20 September 2018 meeting of heads of state in Salzburg and the Council meetings in October and December.2629Austrian Presidency of the Council of the European Union, The 2018 Austrian Presidency of the Council of the European Union at a glance, 31/12/2018, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 23/08/2024 [https://web.archive.org/web/20240829085708/https://www.eu2018.at/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html] In its presidency report, Austria states that “the settlement question is no longer the primary issue but the protection of the external borders… and the fight against smugglers. The Mediterranean route is now de facto closed for illegal migration and the numbers of arrival of illegal migrants has decreased by 95% since 2015.”2630Austrian Presidency of the Council of the European Union, The 2018 Austrian Presidency of the Council of the European Union at a glance, 31/12/2018, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 23/08/2024 [https://web.archive.org/web/20240829085708/https://www.eu2018.at/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html] It went on to say that the Austrian Presidency had achieved this result by concentrating on border “protection” and cooperation with African states as well as achieving a strengthening of Frontex’s mandate on cooperation with transit countries.2631Austrian Presidency of the Council of the European Union, The 2018 Austrian Presidency of the Council of the European Union at a glance, 31/12/2018, https://www.eu2018.at/de/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html, retrieved on 23/08/2024 [https://web.archive.org/web/20240829085708/https://www.eu2018.at/latest-news/news/01-04-2019-The-2018-Austrian-Presidency—of-the-Council-of-the-European-Union-at-a-glance-.html] The latter had been advocated by Kurz many times. During that time Austria also declined to sign the UN Global Compact for Migration.2632MÜNCH, P., “Österreich auf dem Boden der Tatsachen,” Süddeutsche Zeitung, 26/12/2018, https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435, retrieved on 20/09/2020 [https://web.archive.org/web/20201004192514/https://www.sueddeutsche.de/politik/oesterreich-eu-migration-1.4264435?reduced=true]
Austria “failed,” however, to realize its initially set objectives of external disembarkation platforms and a tangible reinforcement of Frontex. The disembarkation platforms were successfully included in the June 2018 Conclusions but were ultimately rejected by African partners.2633BOFFEY, D., “African Union seeks to kill EU plan to process migrants in Africa,” 24/02/2019, https://www.theguardian.com/world/2019/feb/24/african-union-seeks-to-kill-eu-plan-to-process-migrants-in-africa, retrieved on 23/08/2024 [https://web.archive.org/web/20240829093226/https://www.theguardian.com/world/2019/feb/24/african-union-seeks-to-kill-eu-plan-to-process-migrants-in-africa] The planned addition of 10 000 border officers to Frontex was also postponed until 2027 because of Member State’s concerns about infringement on sovereignty.2634Council of the European Union, Proposal for Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action n 98/700/JHA, Regulation (EU) n 1052/2013 of the European Parliament and of the Council and Regulation (EU) n 2016/1624 of the European Parliament and of the Council, 18/01/2019, https://www.statewatch.org/media/documents/news/2019/jan/eu-council-frontex-proposal-standing-corps-exec-powers-5358-19.pdf, retrieved on 23/08/2024 [https://web.archive.org/web/20240829094312/https://www.statewatch.org/media/documents/news/2019/jan/eu-council-frontex-proposal-standing-corps-exec-powers-5358-19.pdf], p. 2.
IVAustria and the Visegrad Group
Throughout the years, Austria has allied itself quite often with the Visegrad group on migration policy. As such, it participated in the Visegrad Group’s introduction of the Migration Crisis Response Mechanism in November 2016, aimed at exchanging information on migration “control”.2635Polish Presidency of the Visegrad Group, “Report on the Polish Presidency of the Visegrad Group 1 July 2016 – 30 June 2017,” 2017, http://www.visegradgroup.eu/documents/annual-reports/polish-presidency-report-180809, retrieved on 20/09/2020 [https://web.archive.org/web/20201008150437/http://www.visegradgroup.eu/download.php?docID=361], p. 9. Austrian government officials, including the Chancellor, attended a number of Visegrad group meetings and summits on migration and aligned on policy objectives very often.2636“Visegrad countries urge stronger EU border defense,” DW, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 20/09/2020 [https://web.archive.org/web/20201008145544/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264]
VLibya Involvement
Austria was actively advocating for increasing the support of the Libyan coastguard. In January 2019, Kurz met Fayez al-Sarraj in Vienna.2637“Migration: Hilfszusagen für Libyens Premier,” Die Presse, 28/01/2019, https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier, retrieved on 20/09/2020 [https://web.archive.org/web/20201004194659/https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier] At this meeting, he praised the “very positive role” of the Libyan coastguard and offered “full support” for the Libyan government.2638“Migration: Hilfszusagen für Libyens Premier,” Die Presse, 28/01/2019, https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier, retrieved on 20/09/2020 [https://web.archive.org/web/20201004194659/https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier] Most notably, it was stated that they discussed further possibilities for training and technical assistance to the Libyan coastguard by Austria through the EU.2639“Migration: Hilfszusagen für Libyens Premier,” Die Presse, 28/01/2019, https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier, retrieved on 20/09/2020 [https://web.archive.org/web/20201004194659/https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier] Contradicting this enthusiastic support by Kurz, his President Van der Bellen said that “refugees […] should not be sent back to Libya” in light of the horrible conditions in the camps.2640“Migration: Hilfszusagen für Libyens Premier,” Die Presse, 28/01/2019, https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier, retrieved on 20/09/2020 [https://web.archive.org/web/20201004194659/https://www.diepresse.com/5570203/migration-hilfszusagen-fur-libyens-premier] This acknowledgement sharply contrasts Austria’s and the EU’s migration policy of returning “migrants” to Libya via the Libyan coastguard as their proxy and underlines their full acceptance of the conditions their system was returning “migrants” to.
VICriminalization of NGOs
Austria has repeatedly promoted the criminalization of NGOs and supported Member States’ legal proceedings in these matters. In July 2017, Interior Minister Wolfgang Sobotka called for the legal punishment of NGO workers rescuing “migrants” in the Mediterranean and accused them of being “in cahoots with human traffickers.”2641SHATZ, O., BRANCO, J., et al., Communication to the Office of the Prosecutor of the Internationql Criminal Court Pursuant to the Article 15 of the Rome Statute, 2019, https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf, retrieved on 03/09/2024 [https://web.archive.org/web/20240903194200/https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf] As described earlier, Austria pushed this position and specifically a code of conduct for NGOs in EU institutions.
DKey individuals
Suspects
-
Heinz-Christian Strache>
2017–2019
AustriaVice Chancellor
-
Herbert Kickl>
2017–2019
AustriaMinister of Interior
-
Sebastian Kurz>
-
Wolfgang Sobotka>
2016–2017
AustriaMinister of Interior
Involved
-
Alexander Kmentt>
03/2016–07/2019
Council of the European UnionEuropean External Action Service (EEAS)AustriaPermanent Representative to the PSC
-
Barbara Kaudel-Jensen>
2017–2020
AustriaForeign & European Advisor to the Chancellor
-
Bernhard Bonelli>
2018–2019
AustriaHead of the Office of the Chancellor
-
Brigitte Bierlein>
06/2019–01/2020
AustriaChancellor
-
Christina Kokkinakis>
08/2019–2021
Council of the European UnionEuropean External Action Service (EEAS)AustriaPermanent Representative to the PSC
-
Christian Kern>
05/2017–12/2017
AustriaChancellor
-
Christopher Berka>
10/2016–2017
AustriaHead of the Office of the Chancellor
-
Gernot Blümel>
12/2017–2019
AustriaEU Minister within the office of the Chancellor
-
Karin Kneissl>
12/2017–06/2019
Council of the European UnionAustriaForeign Minister
-
Alexander Marschik>
2014–2016
Council of the European UnionEuropean External Action Service (EEAS)AustriaPermanent Representative to the PSC
-
Bernd Brünner>
2017–2018
AustriaHead of the Office of the Chancellor
-
Hartwig Löger>
05/2018–06/2019
AustriaChancellor
-
Johanna Mikl-Leitner>
2011–04/2016
AustriaCouncil of the European UnionInterior Minister
-
Raphael Sternfeld>
2011–2016
AustriaForeign & European Advisor to the Chancellor
-
Reinhold Mitterlehner>
05/2016–06/2016
The European CouncilAustriaChancellor
-
Susanne Schnopfhagen-Metzger>
2014–05/2016
AustriaHead of the Office of the Chancellor
-
Thomas Oberreiter>
2019–2020
AustriaHead of the Office of the Chancellor
-
Werner Faymann>
12/2008–05/2016
AustriaChancellor
Related
- 2585International Organization for Migration European Migration Network, Die Gestaltung der Asyl- und Migrationspolitik in Österreich, 2016, https://www.emn.at/wp-content/uploads/2017/01/Organisationsstudie_AT-EMN-NCP_2016.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185325/https://www.emn.at/wp-content/uploads/2017/01/Organisationsstudie_AT-EMN-NCP_2016.pdf]
- 2586Bundeskanzleramt Austria, Europapolitik, https://www.bundeskanzleramt.gv.at/agenda/europapolitik.html, retrieved on 29/09/2020 [https://web.archive.org/web/20200908062124/https://www.bundeskanzleramt.gv.at/agenda/europapolitik.html]
- 2587Austrian Foreign Ministry, The Federal Minister for European and International Affairs, https://www.bmeia.gv.at/en/the-ministry/the-minister/, retrieved on 29/09/2020 [https://web.archive.org/web/20201002214504/https://www.bmeia.gv.at/en/the-ministry/the-minister/]
- 2588Austrian Interior Ministry, BMI Organigrammm, 06/2020, https://bmi.gv.at/103/Organigramme/files/BMI_Organigramm_Stand_06_2020_A0.pdf, retrieved on 20/09/2020 [https://web.archive.org/web/20201002214617/https://bmi.gv.at/103/Organigramme/files/BMI_Organigramm_Stand_06_2020_A0.pdf]
- 2589Austrian Interior Ministry, Abteilung I/4 (Internationale Angelegenheiten), https://bmi.gv.at/103/Sektion_I/Gruppe_B/Abteilung_I_04/start.aspx, retrieved on 20/09/2020 [https://web.archive.org/web/20201004185030/https://bmi.gv.at/103/Sektion_I/Gruppe_B/Abteilung_I_04/start.aspx]
XII
United Kingdom
AExecutive Summary
The United Kingdom has assumed a peculiar position with respect to the European Union’s migration policy. It did not participate in all EU instruments through which policies were being implemented as it kept the right to opt in or out of different policies following the Amsterdam Treaty. Moreover, the 2016 referendum to leave the European Union impacted both the UK-EU relationships and the political climate within the UK. This shaped the UK’s role in the formation and implementation of EU’s migration policies.
Theresa May and Philip Hammond nonetheless played an important role in bringing Mare Nostrum to an end, and both promoted the framing of search and rescue operations as an “unintended pull factor.” Theresa May was subsequently described as having led this “let them drown” approach. This was reflected in the UK’s initial assertion that they would not provide any support for search and rescue with regard to Operation Triton, and continued opposition to the increase of search and rescue capacities throughout the years. The UK later supplied two vessels to the operation, apparently satisfied that the conduct of search and rescue was so minimal as to not interfere with their concerns about being a ‘pull-factor’. It appears that this change in policy was prompted by the UK using its contribution of naval assets as both a bargaining chip with the EU amidst exit negotiations and to ensure that the UK could enforce its interest in securitizing borders. Throughout all subsequent European naval operations that would replace Mare Nostrum, it thus contributed significantly in terms of assets and financing.
Later, the UK actively supported and advocated for the establishment of Operation Sophia and its later mandate expansion to train the Libyan coastguard, providing funding, personnel, vessels, and equipment. During this time Theresa May and Philip Hammond continued to criticize any search and rescue features.
Then Prime Minister David Cameron and Deputy Prime Minister Nick Clegg later explicitly admitted to the deadly consequences of this policy. However, no subsequent efforts were made to lobby for an increase in search and rescue. A 2017 assessment of the failure of Operation Sophia to stop smugglers or even limit migration flows, as well as the human rights abuses committed by the Libyan coastguard, neither prompted a change in policy.
Foreign Minister Hammond met with the Libyan Prime Minister of the GNA ahead of Sophia’s mandate expansion to pledge the UK’s support and earmark 1.5 million pounds of its contributions for stopping “illegal” migration. It also provided support for the Libyan coastguard via the Department for International Development (DFID).
BDecision-making Structures
The United Kingdom is a parliamentary monarchy, where the monarch is an apolitical Head of State. The government is in turn led by a Prime Minister. This person takes responsibility for all government policies and positions.2642Government of the UK, How government works, https://www.gov.uk/government/how-government-works, retrieved on 17/09/2020 [https://web.archive.org/web/20200916231457/https://www.gov.uk/government/how-government-works] They are supported by a cabinet of a varying number of Ministers. The Ministers oversee respective portfolios, sometimes within the same departments.
The Prime Ministers in the relevant period were successively David Cameron (May 2010 – July 2016); Theresa May (July 2016 – July 2019); and Boris Johnson (July 2019-2022). On matters relevant to domestic and European migration policies, the relevant bodies are the Cabinet Office, the Foreign, Commonwealth and Development Office, the Home Office, and the Ministry of Defence. These are complemented by an Inter-institutional coordination group, the EU Subcommittee.
ICabinet Office
The Cabinet Office assists the Prime Minister. Its tasks are to “establish, implement and communicate the Government’s strategic priorities.2643Cabinet Office, Annual Report and Accounts 2015-16, 07/07/2016, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/536577/Cabinet-Office-annual-report-2015-2016.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101059/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/536577/Cabinet-Office-annual-report-2015-2016.pdf], p. 14.
Richard Heaton was the Permanent Secretary of this office until August 2015 and was succeeded by John Manzoni.2644Cabinet Office, Annual Report and Accounts 2014-15, 17/09/2015, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101440/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf] Alex Chisholm took over in April 2020. The Prime Minister’s primary policy advisor was Sir Jeremy Heywood until 2015.2645Cabinet Office, Annual Report and Accounts 2014-15, 17/09/2015, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101440/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf] This position no longer appeared in the 2016 annual report. It is unclear which position replaced it.
IIForeign, Commonwealth and Development Office
The Foreign, Commonwealth and Development Office (Foreign Affairs Office) oversees British diplomacy and foreign affairs policy,2646Foreign, Commonwealth & Development Office, About Us, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200915044417/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about] including the Minister for Middle East and North Africa, the Minister for European Neighborhood and the Americas, and the Minister for the Overseas Territories and Sustainable Development. The Foreign Secretary directs this Office.2647Government of the UK, Ministers, https://www.gov.uk/government/ministers, retrieved on 17/09/2020 [https://web.archive.org/web/20200821070601/https://www.gov.uk/government/ministers]
The Office comprises a Supervisory Board – chaired by the Foreign Secretary – which coordinates and harmonizes policies and activities within the department and keeps them on track with regards to “clear objectives and key performance indicators.”2648Foreign, Commonwealth & Development Office, Our Governance, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200915052653/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance] The Management Board further “ensures the organisation delivers departmental priorities and objectives set by Ministers.”2649Foreign, Commonwealth & Development Office, Our Governance, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200915052653/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance] Imperatively, it is responsible for “mak[ing] strategic choices” on “cross-departmental” issues.2650Foreign, Commonwealth & Development Office, Our Governance, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200915052653/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance] Its chairperson is the Permanent Under-Secretary and Head of the Diplomatic Service.2651Foreign, Commonwealth & Development Office, Our Governance, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200915052653/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about/our-governance] Finally, the Executive Committee is in charge of taking “sensitive or time-bound” decisions on cross-departmental issues.
The Secretary of State for Foreign, Commonwealth and Development Affairs (Foreign Secretary) directs the Office and gives strategic policy direction. Their portfolio includes Europe. The Foreign Secretary position was successively held by Philip Hammond (July 2014 – July 2016), Boris Johnson (July 2016 – July 2018), Jeremy Hunt (July 2018 – July 2019), Dominic Raab (July 2019 – September 2021), Liz Truss (September 2021 – September 2022).
The Minister for Middle East and North Africa directs activities relating to North Africa, “conflict, humanitarian issues, [and] human security.”2652Government of the UK, Minister of State (Minister for Middle East and North Africa), https://www.gov.uk/government/ministers/minister-of-state—87, retrieved on 17/09/2020 [https://web.archive.org/web/20200807134140/https://www.gov.uk/government/ministers/minister-of-state—87] Issues relating to Libya fall under the responsibility of this department.2653Government of the UK, Minister of State (Minister for Middle East and North Africa), https://www.gov.uk/government/ministers/minister-of-state—87, retrieved on 17/09/2020 [https://web.archive.org/web/20200807134140/https://www.gov.uk/government/ministers/minister-of-state—87] This position was created in February 2020 as a result of a portfolio modification and was then held by James Cleverly.2654Government of the UK, The Rt Hon James Cleverly MP, https://www.gov.uk/government/people/james-cleverly, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110434/https://www.gov.uk/government/people/james-cleverly]
The Minister for European Neighborhood and the Americas is responsible for matters with the European Union.2655Government of the UK, The Rt Hon James Cleverly MP, https://www.gov.uk/government/people/james-cleverly, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110434/https://www.gov.uk/government/people/james-cleverly] Prior to 2020, the office was titled the “Ministry of State for Europe and the Americas” and “Ministry of State for Europe.”2656Government of the UK, The Rt Hon James Cleverly MP, https://www.gov.uk/government/people/james-cleverly, retrieved on 17/09/2020 [https://web.archive.org/web/20200917110434/https://www.gov.uk/government/people/james-cleverly] It was successively led by David Lidington (May 2010 – July 2016), Alan Duncan (July 2016 – July 2019), Christopher Pincher (July 2019 – February 2020) and Wendy Morton (February 2020 – December 2021).
IIIHome Office
The Home Office is responsible for the safety of the country and specifically for “securing the UK border and controlling immigration; considering applications to enter and stay in the UK; issuing passports and visas”; it also lists “controlling migration” as one of its priorities.2657Home Office, About Us, https://www.gov.uk/government/organisations/home-office/about, retrieved on 17/09/2020, https://web.archive.org/web/20200917111435/https://www.gov.uk/government/organisations/home-office/about The Home Secretaries were successively Theresa May (May 2010 – July 2016), Amber Rudd (July 2016 – April 2018), Sajid Javid (April 2018 – July 2019), and Priti Patel (July 2019 – September 2022).
Under it, the Ministers for ‘Future Borders and Immigration’ and for ‘Immigration Compliance and the Courts’ are relevant to the formulation and implementation of migration policies. The Minister for Future Borders and Immigration oversees all matters related to border and immigration control. It is specifically in charge of “counting in and counting out (e.g. numbers-based border policy assessment); immigration rules; the Immigration Bill ; and the EU Settlement Scheme.”2658Government of the UK, Parliamentary Under Secretary of State (Minister for Future Borders and Immigration), https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state-minister-for-future-borders-and-immigration, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111609/https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state-minister-for-future-borders-and-immigration] Over the relevant time period, this position has been held by: James Brokenshire (February 2014 – July 2016), Robert Goodwill (July 2016 – June 2017), Brandon Lewis (June 2017 – January 2018), Caroline Nokes (January 2018 – July 2019), Seema Kennedy (July 2019 – December 2019), and Kevin Foster (December 2019 – September 2022).
Finally, the Minister for Immigration Compliance and the Courts is in charge of “compliance environment; detention; returns; foreign national offenders; illegal immigration strategy; overseas development; aid; Immigration Enforcement; asylum; resettlement; nationality.”2659Government of the UK, Parliamentary Under Secretary of State (Minister for Immigration Compliance and the Courts), https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—122, retrieved on 17/09/2020 [https://web.archive.org/web/20200917111902/https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—122] This position was created in 2020 and was then held by Chris Philp.2660MAGISTRATES ASSOCIATION, “New justice minister Chris Philp announced,” 24/09/2019, https://www.magistrates-association.org.uk/News-and-Comments/new-justice-minister-chris-philp-announced, retrieved 17/09/2020 [https://web.archive.org/web/20200917112312/https://www.magistrates-association.org.uk/News-and-Comments/new-justice-minister-chris-philp-announced]
Of the agencies and bodies affiliated with the Home Office, two are of particular interest to migration policies. The Border Force, which is responsible for immigration and customs checks carried out at ports and airports, along with patrolling UK coasts and searching vessels;2661Border Force, About us, https://www.gov.uk/government/organisations/border-force/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113121/https://www.gov.uk/government/organisations/border-force/about] and Immigration Enforcement, which works both domestically and abroad to “reduce the size of the illegal population and the harm it causes.”2662Immigration Enforcement, About us, https://www.gov.uk/government/organisations/immigration-enforcement/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200922133255/https://www.gov.uk/government/organisations/immigration-enforcement/about] Concretely, it “prevent[s] migrants from entering the UK illegally and overstaying; and encourage[s] and enforces the return of illegal migrants from the UK.”2663Immigration Enforcement, About us, https://www.gov.uk/government/organisations/immigration-enforcement/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200922133255/https://www.gov.uk/government/organisations/immigration-enforcement/about]
IVMinistry of Defence
The Ministry of Defence is responsible for the armed forces of the United Kingdom. It is headed by the Secretary of State for Defence and includes both civilian and military staff. Its tasks include: “defence, security and resilience of the UK; influence through international defence engagement; overseas defence activity; promote UK prosperity and civil society.”2664Ministry of Defence, About us, https://www.gov.uk/government/organisations/ministry-of-defence/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113616/https://www.gov.uk/government/organisations/ministry-of-defence/about]
It is directed by the Defence Board, “responsible for top level leadership and management across defence,”2665Ministry of Defence, Our Governance, https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113907/https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance] chaired by the Secretary of State. The Defence Board furthermore defines the strategic direction, establishes priorities and targets.2666Ministry of Defence, Our Governance, https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113907/https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance] The Department also includes the Defence Council, a formal body whose work is done by the aforementioned Defence Board. The Council is comprised of the Secretary of State and other ministers, and “provides the formal legal basis for the conduct of defence in the UK.”2667Ministry of Defence, Our Governance, https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113907/https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance] Finally, an Executive Committee “considers the major managerial and strategic policy issues.”2668Ministry of Defence, Our Governance, https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance, retrieved on 17/09/2020 [https://web.archive.org/web/20200917113907/https://www.gov.uk/government/organisations/ministry-of-defence/about/our-governance]
The Minister of State is responsible for “relations with the European Union; arms control and counter-proliferation; and Statutory Instrument programme.”2669Government of the UK, Minister of State, https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—20, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114017/https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—20] This position was held by Lord Astor of Hever (2010 – 2015), Earl Howe (2015 – 2019) and Baroness Goldie (2019 – 2023).2670Government of the UK, Minister of State, https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—20, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114017/https://www.gov.uk/government/ministers/parliamentary-under-secretary-of-state—20]
The Minister for the Armed Forces is in charge of “international defence engagement strategy; lead for defence engagement in Africa and Latin America; human security.”2671Government of the UK, Parliamentary Under Secretary of State (Minister for the Armed Forces) , https://www.gov.uk/government/ministers/minister-of-state-minister-for-the-armed-forces, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114138/https://www.gov.uk/government/ministers/minister-of-state-minister-for-the-armed-forces] This post has been occupied by: Mark Francois (2013 – 2015), Penny Mordaunt (2015 – 2016), Mike Penning (2016 – 2017), Mark Lancaster (2017 – 2019), Anne-Marie Trevelyan (2019 – 2020), James Heappey (2020 – 2022).2672Government of the UK, Parliamentary Under Secretary of State (Minister for the Armed Forces) , https://www.gov.uk/government/ministers/minister-of-state-minister-for-the-armed-forces, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114138/https://www.gov.uk/government/ministers/minister-of-state-minister-for-the-armed-forces]
On the military side, the Secretary of State for Defence is assisted and advised by the Chief of the Defence Staff. It is responsible for “leading defence; setting strategy for defence; and the conduct of current operations”2673Government of the UK, General Sir Nick Carter GCB CBE DSO ADC Gen, https://www.gov.uk/government/people/nicholas-patrick-carter, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114328/https://www.gov.uk/government/people/nicholas-patrick-carter] This position has been held by Nicholas Houghton (July 2013 – July 2016), Stuart Peach (July 2016 – June 2018), and Nicholas Carter (June 2018 – December 2021).
VCabinet Committees
Within the British Cabinet, specific ministers can be reunited on particular matters and topics in order to take binding decisions for the UK Government. These formations are called “Cabinet Committees.” They are chaired by a Cabinet member and comprised of different ministers, based on their portfolios. The list and members of each cabinet committee is published each year and may evolve depending on the situation. They are freely modified by Prime Ministers.
(a) European Affairs Committee
On matters pertinent to EU policy-making, the European Affairs Committee includes all relevant ministers. It aims at reducing the burden on the full cabinet, by allowing smaller groups of ministers to take decisions on specific policy areas.2674“Cabinet committees,” INSTITUTE FOR GOVERNMENT, 01/07/2020, https://www.instituteforgovernment.org.uk/explainers/cabinet-committees, retrieved on 17/09/2020 [https://web.archive.org/web/20200917114727/https://www.instituteforgovernment.org.uk/explainers/cabinet-committees] For instance, in 2016 it was chaired by the Secretary of State for Foreign and Commonwealth Affairs and included, inter alia, the Home Secretary, the Justice Secretary, and the Minister of State for Europe.2675Government of the UK, Cabinet Committees, 11/04/2016, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515673/2016-04-11_Cabinet_Committees_final_arp.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917115025/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/515673/2016-04-11_Cabinet_Committees_final_arp.pdf], p. 6.
In the past, the European Affairs Committee used to be chaired by the deputy Prime Minister. Usually, justice and home affairs matters would be the responsibility of the Home Secretary or, in case of legal matters, the Justice Secretary.2676Government of the UK, Cabinet Committee Membership Lists, http://www.cabinetoffice.gov.uk/sites/default/files/resources/Cabinet_Committee_Membership_Lists_15_12_11.pdf, retrieved on 05/03/2012 [https://web.archive.org/web/20120305171806/http://www.cabinetoffice.gov.uk/sites/default/files/resources/Cabinet_Committee_Membership_Lists_15_12_11.pdf], p. 8. 2677Interviewee I39
(b) NSC (Libya) Subcommittee
For two years, between 2011 and 2012, the National Security Council held a subcommittee dedicated to Libyan affairs, more specifically “to consider matters relating to the implementation of United Nations Security Council Resolution (UNSCR) 1973 (2011).”2678Government of the UK, Cabinet Committee Membership Lists, http://www.cabinetoffice.gov.uk/sites/default/files/resources/Cabinet_Committee_Membership_Lists_15_12_11.pdf, retrieved on 05/03/2012 [https://web.archive.org/web/20120305171806/http://www.cabinetoffice.gov.uk/sites/default/files/resources/Cabinet_Committee_Membership_Lists_15_12_11.pdf], p. 5. This Subcommittee included, inter alia, the Defence Secretary, International Development Secretary, and the Chief of Defence Staff.
VIPolicy-making process
Most of the decisions within the EU Subcommittee are commonly uncontroversial.2679Interviewee I39 There have been incidents, however, which involved highly politicized discussions.2680Interviewee I39 In this case, the Parliament would get involved and a statutory instrument would be passed through both Houses of Parliament. To stop it, Member of Parliament or members of the House of Lords would have to “pray” against it, by introducing a motion to annul such an instrument. In order for the instrument to be annulled, a prayer must be tabled and passed within 40 days of the instrument being laid.2681PRIDDY, S., “Prayers against Statutory Instruments in the House of Commons since 1997,” London, House of Commons Library, 05/12/2016, http://researchbriefings.files.parliament.uk/documents/SN02569/SN02569.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917120112/https://researchbriefings.files.parliament.uk/documents/SN02569/SN02569.pdf], p. 1.
VIILegal Framework: The UK’s opt-in approach with regards to Justice and Home Affairs
Since the 1997 Amsterdam treaty “opt-out” from EU immigration and asylum matters, the UK has chosen on a case-by-case basis whether to participate in EU rules on visa, asylum and immigration policies. Accordingly, the UK is not bound by EU JHA measures if it does not choose to opt in.2682TRAVIS, A., “On asylum and refugees, Britain left Europe years ago,” The Guardian, 01/03/2017, https://www.theguardian.com/uk-news/2017/mar/01/how-britain-hard-stance-refugees-reshaping-european-policy, retrieved on 17/09/2020 [https://web.archive.org/web/20200917124051/https://www.theguardian.com/uk-news/2017/mar/01/how-britain-hard-stance-refugees-reshaping-european-policy] 2683HM Government, The UK’s cooperation with the EU on justice and home affairs, and on foreign policy and security issues, 09/05/2016, https://assets.publishing.service.gov.uk/media/5a81ba13e5274a2e87dbf2f7/The_UK_s_cooperation_with_the_EU_on_justice_and_home_affairs__and_on_foreign_policy_and_security_issues.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200805212208/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/521926/The_UK_s_cooperation_with_the_EU_on_justice_and_home_affairs__and_on_foreign_policy_and_security_issues.pdf] When David Cameron spoke at an EU summit with Turkey, he said that the UK had an “absolutely rock-solid opt out” in justice and home affairs.((UK 029}}
In practical terms, when a new policy is presented, the UK has three months to decide if it wants to participate.2684NIELSEN, N., “Opt-outs to poke holes in EU migration policy,” EUObserver, 12/05/2015, https://euobserver.com/justice/128689, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125444/https://euobserver.com/justice/128689] Accordingly, the UK has opted-out of the EU refugee emergency relocation scheme, which aimed to redistribute asylum seekers arriving in Greece and Italy.2685“UK not bound by EU quota plan for housing migrants,” BBC, 12/05/2015, https://www.bbc.co.uk/news/world-europe-32705615, retrieved on 03/05/2020 [https://web.archive.org/web/20200917125842/https://www.bbc.com/news/world-europe-32705615] The UK Home Office went as far as saying that it would “oppose any EU commission proposals to introduce a non-voluntary quota.”2686NIELSEN, N., “Opt-outs to poke holes in EU migration policy,” EUObserver, 12/05/2015, https://euobserver.com/justice/128689, retrieved on 17/09/2020 [https://web.archive.org/web/20200917125444/https://euobserver.com/justice/128689] Thus, the UK has been allowed to cherry-pick the areas it wants to participate in. Since the introduction of this opt in and opt out possibility, the UK has opted out of nearly all proposals which concern border, legal migration and visas, but has opted in on all proposals concerning “illegal” immigration, civil law and asylum. This has given the UK “the best of both worlds”, according to Tony Blair.2687EL-ENANY, N., Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law, (Cheltenham, Edward Elgar Publishing, 2017) in print Below is a list of relevant policies related to migration policies in which the UK has opted-in or out.
Opt-in:
Common Security and Defence Policy (CSDP): The UK has participated in the CSDP, through which member states have pooled funding and resources in order to achieve common goals including crisis management, humanitarian and rescue missions etc. For instance, Operation Sophia is a CSDP operation.2688WRIGHT, G., “UK-EU future relationship: defence and security co-operation,” Institute for Government, 25/02/2020, https://www.instituteforgovernment.org.uk/explainers/future-relationship-defence-security-cooperation, retrieved on 17/09/2020 [https://web.archive.org/web/20200917133721/https://www.instituteforgovernment.org.uk/explainers/future-relationship-defence-security-cooperation]
Opt-out:
Open borders within Schengen: The UK did not participate fully in Schengen. It took part in judicial co-operation and police elements of the system, but not in those which concern border control. As a non-member of Schengen and given its geographic location, the UK was therefore hardly accessible for asylum seekers through legal pathways.2689ZAUN, N., “Taking back control? The impact of Brexit on the immigration of third country nationals and asylum seekers,” LSE, 11/05/2018, https://blogs.lse.ac.uk/brexit/2018/05/11/taking-back-control-the-impact-of-brexit-on-the-immigration-of-third-country-nationals-and-asylum-seekers/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917132907/https://blogs.lse.ac.uk/brexit/2018/05/11/taking-back-control-the-impact-of-brexit-on-the-immigration-of-third-country-nationals-and-asylum-seekers/]
Migration policies: The UK had a general opt-out in this area. It did not participate in common policies. When European leaders were discussing solutions to the 2015 political impasse, Britain had a right to lean back and let the issue be handled by other member states.2690EL-ENANY, N., Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law, (Cheltenham, Edward Elgar Publishing, 2017) in print
Permanent Structured Cooperation (PESCO): The UK, Denmark and Malta chose not to participate in the Permanent Structured Cooperation.2691MILLS, C., “EU Defence: the realization of Permanent Structured Cooperation (PESCO),” House of Commons Library, 23/09/2019, http://researchbriefings.files.parliament.uk/documents/CBP-8149/CBP-8149.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200715042344/https://researchbriefings.files.parliament.uk/documents/CBP-8149/CBP-8149.pdf], p. 3. The UK was able to participate on a case-by-case basis before Brexit due to the third-party participation mechanism.2692BARRIE, D., “The EU’s PESCO: here to stay?,” International Institute for Strategic Studies, 19/12/2019, https://www.iiss.org/blogs/military-balance/2019/12/eu-pesco-hurdles, retrieved on 17/09/2020 [https://web.archive.org/web/20200917134412/https://www.iiss.org/blogs/military-balance/2019/12/eu-pesco-hurdles]
It appears that the decision to opt in or out was usually made by the EU-subcommittee of the cabinet of the Prime Minister, which was usually chaired by a senior minister.2693Interviewee I39 The fact that the UK could opt-out of certain polices did not affect the UK’s leverage during negotiations.2694Interviewee I39 On the contrary, through often minor elements, like UK’s belonging to the Five Eyes network - an intelligence sharing network between the UK, Canada, New Zealand, US and Australia - and the access it granted to extensive databases on criminal and asylum matters, the UK was particularly well placed in negotiations as it often provided the relevant data to make decisions in matters of justice and home affairs.2695Interviewee I39
VIIIUK Participation in EU Institutions
(a) Reduced participation ahead of Brexit
The UK was a member of European institutions until it left the EU on 31 January 2020. After the referendum of 23 June 2016, under Theresa May, the government continued to participate in EU meetings. However, it did step back from being an active participant, especially where policies were unlikely to affect the UK after Brexit.2696ELGOT, J. and RANKIN, J., “UK officials to skip most EU meetings from next month.,” The Guardian, 20/08/2019, https://www.theguardian.com/politics/2019/aug/20/uk-officials-skip-eu-meetings-brexit, retrieved on 17/09/2020 [https://web.archive.org/web/20200917134822/https://www.theguardian.com/politics/2019/aug/20/uk-officials-skip-eu-meetings-brexit] Since May 2019, giving in to French demands of President Macron, the Council was able to hold meetings without the UK, despite it still being a Member State.2697GOTEV, G., “EU27 is now free to hold summits without the UK,” Euractiv, 11/04/2019, https://www.euractiv.com/section/future-eu/news/eu27-is-now-free-to-hold-summits-without-the-uk/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917135040/https://www.euractiv.com/section/future-eu/news/eu27-is-now-free-to-hold-summits-without-the-uk/]
Under Boris Johnson’s mandate, the UK government ordered its officials to stop attending most EU meetings as of 1 September 2019 to focus efforts on Brexit’s preparation. Therefore, British officials only attended EU level meetings where the UK had a significant national interest such as security, international relations and Brexit.2698MORGAN, S., “UK yields voting rights to Finland, officials to skip meetings,” Euractiv, 20/08/2019, https://www.euractiv.com/section/uk-europe/news/uk-yields-voting-rights-to-finland-officials-to-skip-meetings/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917135335/https://www.euractiv.com/section/uk-europe/news/uk-yields-voting-rights-to-finland-officials-to-skip-meetings/] In a statement, Brexit Secretary Steve Barclay announced that “from now on, we will only go to the meetings that really matter, reducing attendance by over half and saving hundreds of hours. This will free up time for Ministers and their officials to get on with preparing for our departure […].”2699DICKSON, A., “UK officials to withdraw from EU meetings from September 1,” Politico, 20/08/2019, https://www.politico.eu/article/uk-officials-to-withdraw-from-eu-meetings-from-september-1/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917135727/https://www.politico.eu/article/uk-officials-to-withdraw-from-eu-meetings-from-september-1/]
(b) The UK and Frontex
Because it did not participate in the Schengen agreement, the UK was not able to join Frontex.2700TAYLOR, B., “Leaving the European Union: Frontex and UK Border Security Cooperation Within Europe,” House of Lords, 24/04/2017, https://researchbriefings.files.parliament.uk/documents/LIF-2017-0039/LIF-2017-0039.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917140755/https://researchbriefings.files.parliament.uk/documents/LIF-2017-0039/LIF-2017-0039.pdf] The UK challenged the respective Council decision before the Court of Justice of the European Union but lost.2701CROSBIE, J., “UK asks Court for full access to Frontex border agency,” Politico 14/03/2007, https://www.politico.eu/article/uk-asks-court-for-full-access-to-frontex-border-agency/, retrieved on 23/08/2024 [https://web.archive.org/web/20240829111231/https://www.politico.eu/article/uk-asks-court-for-full-access-to-frontex-border-agency/] It only achieved an observer status on the Management Board.2702House of Lords, EU police and criminal justice measures: The UK’s 2014 opt-out decision, 13th Report of Session 2012-2013, 23/04/2013, https://publications.parliament.uk/pa/ld201213/ldselect/ldeucom/159/15902.htm, retrieved on 17/09/2020 [https://web.archive.org/web/20200917140526/https://publications.parliament.uk/pa/ld201213/ldselect/ldeucom/159/15902.htm] Under such a status, it could attend meetings of the Board without having the right to vote.2703TAYLOR, B., “Leaving the European Union: Frontex and UK Border Security Cooperation Within Europe,” House of Lords, 24/04/2017, https://researchbriefings.files.parliament.uk/documents/LIF-2017-0039/LIF-2017-0039.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917140755/https://researchbriefings.files.parliament.uk/documents/LIF-2017-0039/LIF-2017-0039.pdf] While the UK was not a full de jure member, it was not prevented from contributing to and participating in Frontex operations, given its extensive capabilities and experience in border control and military systems. Participation in operations was decided on a case-by-case basis by an absolute majority of the Frontex Management Board. This mechanism for instance enabled the UK to join Operation Triton in summer 2015 deploying its ship HMS Bulwark which eventually rescued 4 747 “migrants” at sea.2704EL-ENANY, N., Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law, (Cheltenham, Edward Elgar Publishing, 2017) in print 2705GANZLE, S., LERUTH, B. and TRONDAL, J., Differentiated Integration and Disintegration in a Post-Brexit Era, (London, Routledge, 03/12/2019) in print
CImplication in Criminal Policies
IEnd of Mare Nostrum
Like all Member States, the UK was a member of the Task Force Mediterranean in 2013 and therefore worked on the border externalization blueprint drafted in this forum.2706European Commission, Commission Staff Working Document Implementation of the Communication on the Work of the Task Force Mediterranean, 22/05/2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf, retrieved on 24/09/2020 [https://web.archive.org/web/20200924155229/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/general/docs/sdw_implementation_of_the_communication_on_the_work_of_the_task_force_mediterranean_part_1_en.pdf] When Italy’s request for the Europeanization of Mare Nostrum came up on the agenda of the European Council a year later in 2014, the UK declined to support it.2707FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025
On 25 and 26 June 2014, an informal G6 group of Interior ministers from the 6 largest European Union countries including the UK’s Theresa May, plus representatives from the United States of America, the European Commission and FRONTEX, held a meeting in Barcelona discussing the end of Mare Nostrum.2708Government of the UK, Written Statement to the Parliament – G6: Barcelona, 07/07/2014, https://www.gov.uk/government/speeches/g6-barcelona, retrieved on 17/09/2020 [https://web.archive.org/web/20200917141540/https://www.gov.uk/government/speeches/g6-barcelona]
On 11 September 2014, May was one of the five Interior Ministers who signed the letter sent to Commissioner Cecilia Malmstrom, asking for the replacement of Mare Nostrum by Triton. On 9 October 2014, a month later, Europe’s interior ministers officially decided to replace Mare Nostrum.2709Représentation Permanente de la France auprès de l’Union Européenne, Lettre à Cecilia MALMSTRÖM, 11/09/2014 https://web.archive.org/web/20200917141907/http://webcache.googleusercontent.com/search?q=cache%3ACWOyllh1NwcJ%3Aec.europa.eu%2Fcarol%2F%3Ffuseaction%3Ddownload%26documentId%3D090166e599a59e6b%26title%3D2014_09%252011%2520-%2520lettre%2520conjointe%2520M.%2520Cazeneuve%2520%25C3%25A0%2520Mme%2520Malmstrom.pdf+&cd=1&hl=de&ct=clnk&gl=pt&client=firefox-b-d, retrieved on 17/09/2020
May’s only public communication came in the form of a written statement to the Commons, which said that the withdrawal of Mare Nostrum was welcomed by all EU member states, and “compl[ied] with their obligations under EU migration and asylum laws.”2710TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission]
Junior Foreign Office Minister Baroness Anelay specified that Search and Rescue operations would not be supported.2711TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission] Anelay wrote: “We do not support planned search and rescue operations in the Mediterranean,” adding that the government believed this was “an unintended ‘pull factor’, encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more traffic and unnecessary deaths.”2712TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission] Immigration Minister James Brokenshire further argued that it should also be publicized in North Africa and the Middle East that no rescue patrols were going to save the “migrants” at sea.2713TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission]
According to multiple sources, this approach, which the British press coined as the “let them drown” approach, is believed to have been a product of then Home-Secretary Theresa May.2714FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, pp. 1-, 14-15. 2715TRAVIS, A., “Migrant rescue operations must be stopped at earliest opportunity – minister,” The Guardian, 30/10/2014, https://www.theguardian.com/uk-news/2014/oct/30/home-office-minister-rescue-migrants-must-be-stopped-mediterranean,retrieved on 17/09/2020 [https://web.archive.org/web/20200917142350/https://www.theguardian.com/uk-news/2014/oct/30/home-office-minister-rescue-migrants-must-be-stopped-mediterranean]
IIOperation Triton
Mare Nostrum ended on 1 November 2014 and was replaced by the drastically stripped-down Triton. As previously shown, Theresa May, then Home Secretary, was a key figure in the decision to end Mare Nostrum and replace it with Triton.
At first, the UK was against providing support for search and rescue, claiming that this would encourage more people to attempt the dangerous sea crossing. The British Immigration Minister, James Brokenshire, told The Guardian that the Home Office would only send one “debriefer”, an immigration officer which would gather intelligence about the “migrants” who continued to make the journey to Italy.2716TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission] This number was later increased to four debriefers and one screening expert.2717TRAVIS, A., “Mediterranean migrant deaths: UK sends just five workers to assist EU,” The Guardian, 20/04/2015, https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission, retrieved on 17/09/2020 [https://web.archive.org/web/20200917142702/https://www.theguardian.com/world/2015/apr/20/mediterranean-migrant-deaths-uk-eu-mission]
Later, the UK was amongst countries providing assets to Triton. It sent the vessels HMC Protector and HMC Seeker which were stationed at Catania, Sicily and Taranto during their five-month deployment.2718Home Office, Border Force cutters return from Mediterranean search and rescue operations, 13/10/2015, https://www.gov.uk/government/news/border-force-cutters-return-from-mediterranean-search-and-rescue-operations, retrieved on 17/09/2020 [https://web.archive.org/web/20200917143013/https://www.gov.uk/government/news/border-force-cutters-return-from-mediterranean-search-and-rescue-operations] During this time, they went on to rescue 1650 “migrants” and intercepted 26 suspected smuggler boats.2719Home Office, Border Force cutters return from Mediterranean search and rescue operations, 13/10/2015, https://www.gov.uk/government/news/border-force-cutters-return-from-mediterranean-search-and-rescue-operations, retrieved on 17/09/2020 [https://web.archive.org/web/20200917143013/https://www.gov.uk/government/news/border-force-cutters-return-from-mediterranean-search-and-rescue-operations]
A source from the European Parliament argued that this apparent shift in policy stemmed from the UK openly using its contribution of naval assets as both a bargaining chip with the EU amidst exit negotiations as well as working to ensure that the UK could enforce its interest in securitizing borders.2720Interviewee I59 Multiple newspapers such as The Guardian and The Telegraph have confirmed that the UK was following this strategy under Theresa May as well as Boris Johnson.2721RAYNER, G., “Britain hopes promise of defence and security cooperation will persuade EU to start trade talks.,” The Telegraph, 11/09/2017, https://www.telegraph.co.uk/news/2017/09/11/britain-hopes-promise-defence-security-cooperation-will-persuade/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917143236/https://www.telegraph.co.uk/news/2017/09/11/britain-hopes-promise-defence-security-cooperation-will-persuade/] 2722GUTTERIDGE, N., COLE, H. and Dunn, N., T., “Brussel’s hardline Brexit position and securing a bumper trade deal,” The Sun, 22/01/2018, https://www.thesun.co.uk/news/5394450/britain-military-bumper-trade-deal-brexit/, retrieved on 17/09/2020 [https://web.archive.org/web/20200917143729/https://www.thesun.co.uk/news/5394450/britain-military-bumper-trade-deal-brexit/] 2723BOFFEY, D. and TOWNSEND, M., “Boris Johnson ‘is turning security into Brexit trade talks bargaining chip’,” The Guardian, 01/03/2020, https://www.theguardian.com/politics/2020/feb/29/uk-turning-security-into-eu-trade-talks-bargaining-chip, retrieved on 17/09/2020 [https://web.archive.org/web/20200917143837/https://www.theguardian.com/politics/2020/feb/29/uk-turning-security-into-eu-trade-talks-bargaining-chip] 2724MACASKILL, E., “Using security as Brexit bargaining chip is reckless and lacks credibility,” The Guardian, 30/03/2017, https://www.theguardian.com/politics/2017/mar/30/using-security-as-brexit-bargaining-chip-is-reckless-and-lacks-credibility, retrieved on 17/09/2020 [https://web.archive.org/web/20200917144037/https://www.theguardian.com/politics/2017/mar/30/using-security-as-brexit-bargaining-chip-is-reckless-and-lacks-credibility] This affected the following UK contributions to naval missions in the Mediterranean as well.
During the discussions of the April 2015 special Council meeting, the UK argued against an increase of search and rescue capacities, claiming this would simply increase refugees’ crossings.2725LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 2. Theresa May, then British home affairs minister, further renewed her opposition to any enhancement of the “pull” factor at the special JHA Council of April 20th 2015.2726LUDLOW, P., “Pre-summit Briefing 2015/3,” Eurocomment, Leuven University Press, p. 2.
IIIOperation Sophia
The UK played a central role in the establishment of Operation Sophia, pushing for its establishment and subsequently providing funding, personnel, and equipment. Foreign Secretary Philip Hammond and Defence Secretary Michael Fallon reportedly spoke in favor of the operation at a European Council meeting on 18 May 2015.2727GOWER, M. and SMITH, B., “Migration pressures in Europe,” House of Commons Library, 2015, http://researchbriefings.files.parliament.uk/documents/CBP-7210/CBP-7210.pdf, retrieved on 08/03/2017 [https://web.archive.org/web/20170308110106/http://researchbriefings.files.parliament.uk/documents/CBP-7210/CBP-7210.pdf], pp. 13-14. However, according to scholar Karolina Follis, David Cameron did make sure that none of the persons rescued by the Royal Navy would be allowed to apply for asylum in the UK.2728FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, pp. 2, 16.
Faced with criticism of the British “go home”- and “let them drown” approach, David Cameron started backpedaling.2729FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, p. 16. Whereas Home Secretary Theresa May and the Foreign Secretary Philip Hammond said that rescue operations created a “pull factor” and lead to more deaths at sea as they encouraged migration, David Cameron prevailed.2730FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, p. 16. On 23 April 2015, David Cameron thus agreed at a special EU Council summit in Luxembourg to deploy the military ship HMS Bulwark in support of Sophia.2731FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, p. 16. Three months later, on 1 July 2015, David Lidington, Minister of State for Europe reported to the Commons that the UK would participate in the EU naval force.2732GOWER, M. and SMITH, B., “Migration pressures in Europe,” House of Commons Library, 2015, http://researchbriefings.files.parliament.uk/documents/CBP-7210/CBP-7210.pdf, retrieved on 08/03/2017 [https://web.archive.org/web/20170308110106/http://researchbriefings.files.parliament.uk/documents/CBP-7210/CBP-7210.pdf], p. 14.
Consequently, HMS Bulwark was sent to patrol the area between the Italian and Libyan coasts together with three Royal Navy Merlin helicopters where it rescued over 2700 “migrants” who were disembarked in Italy.2733ZAIOTTI, R., Externalizing Migration Management – Europe, North America and the spread of ‘remote control’ practices, (London, Routledge, 2016) in print; PRESS ASSOCIATION, “HMS Bulwark rescues more than 1’000 migrants off Libyan coast,” The Guardian, 07/06/2015, https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya, retrieved on 17/09/2020 [https://web.archive.org/web/20200917144751/https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya] 2734PRESS ASSOCIATION, “HMS Bulwark rescues more than 1’000 migrants off Libyan coast,” The Guardian, 07/06/2015, https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya, retrieved on 17/09/2020 [https://web.archive.org/web/20200917144751/https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya] However, then Prime Minister David Cameron and Deputy Prime Minister Nick Clegg themselves acknowledged that the EU decision they had taken to scale back search and rescue operations in the Mediterranean did not work, after two boats with hundreds of “migrants” drowned in 2015.2735MASON, R, “Cameron and Clegg admit axing search and rescue in the Mediterranean has failed,” The Guardian, 22/04/2015, https://www.theguardian.com/uk-news/2015/apr/22/cameron-and-clegg-admit-axeing-search-and-rescue-in-mediterranean-has-failed, retrieved on 17/09/2020 [https://web.archive.org/web/20200917145026/https://www.theguardian.com/uk-news/2015/apr/22/cameron-and-clegg-admit-axeing-search-and-rescue-in-mediterranean-has-failed] Despite this explicit acknowledgement of this intentionally created fatal rescue gap, the UK made no efforts to lobby for increased search and rescue. Instead, when the mission of HMS Bulwark expired, a vessel a fifth of its size called HMS Enterprise was sent to the area with the principal aim of stopping smugglers, not saving lives.2736ZAIOTTI, R., Externalizing Migration Management – Europe, North America and the spread of ‘remote control’ practices, (London, Routledge, 2016) in print; PRESS ASSOCIATION, “HMS Bulwark rescues more than 1’000 migrants off Libyan coast,” The Guardian, 07/06/2015, https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya, retrieved on 17/09/2020 [https://web.archive.org/web/20200917144751/https://www.theguardian.com/uk-news/2015/jun/07/royal-navy-hms-bulwark-mission-rescue-migrants-libya] 2737TRAVIS, A., “Migrant rescue operations must be stopped at earliest opportunity – minister,” The Guardian, 30/10/2014, https://www.theguardian.com/uk-news/2014/oct/30/home-office-minister-rescue-migrants-must-be-stopped-mediterranean,retrieved on 17/09/2020 [https://web.archive.org/web/20200917142350/https://www.theguardian.com/uk-news/2014/oct/30/home-office-minister-rescue-migrants-must-be-stopped-mediterranean]
Throughout its duration, the UK significantly contributed to the operation by providing four Royal Navy Ships: Type 45 destroyer HMS Diamond, Type 23 frigate HMS Richmond and two Echo-class survey ships called HMS Echo and HMS Enterprise.2738The Royal Navy, Operation Sophia, https://www.royalnavy.mod.uk/news-and-latest-activity/operations/mediterranean-and-black-sea/operation-sophia, retrieved on 17/09/2020 [https://web.archive.org/web/20200917145208/https://www.royalnavy.mod.uk/news-and-latest-activity/operations/mediterranean-and-black-sea/operation-sophia] Moreover, the UK sent military planners to the Rome headquarters of Operation Sophia in 2016.2739NELSON, E., “Cameron: It’s In Britain’s Interest To Support Libyan Government,” Forces.net, 27/05/2016, https://www.forces.net/news/tri-service/cameron-its-britains-interest-support-libyan-government, retrieved on 17/09/2020 [https://web.archive.org/web/20200917145824/https://www.forces.net/news/tri-service/cameron-its-britains-interest-support-libyan-government] 2740DEARDEN, L., “UK to send warship to Mediterranean to stop refugee boats and cut off Isis arms supplies in Libya,” The Independent, 27/05/2020, https://www.independent.co.uk/news/world/europe/royal-navy-warship-to-be-sent-to-libya-to-battle-people-and-arms-trafficking-a7051226.html, retrieved on 17/09/2020 [https://web.archive.org/web/20200917150124/https://www.independent.co.uk/news/world/europe/royal-navy-warship-be-sent-libya-battle-people-and-arms-trafficking-a7051226.html] The UK Foreign Office itself described the UK as having been a “very strong, indeed leading, contributor to Operation Sophia to date.”2741Travis, A., “EU-UK naval mission on people-smuggling led to more deaths, report says,” the Guardian, 11/07/2017, https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says, retrieved on 12/07/2023 [https://web.archive.org/web/20220423192257/https://www.theguardian.com/world/2017/jul/11/eu-naval-tactics-operation-sophia-stop-people-smuggling-cause-more-deaths-report-says]
The UK’s approach to EU migration policy has to be understood in its domestic political context at the time. The rise of the far-right and staunchly anti-immigrant UKIP in 2015 and 2016 exerted considerable pressure on Cameron and May, with UKIP and the tabloid media portraying Cameron as having “failed” to prioritize this external aspect of migration policy and erroneously treated it as a European rather than a British issue.2742Interviewee I39 2743Interviewee I18 Following the Valletta Summit in November 2015, however, Cameron started being proactive on EU migration policy and supported cooperation with African countries.2744Interviewee I18 As Sophia unfolded, the UK voted to leave the European Union on 23 June 2016. Then former Home Secretary Theresa May became Prime Minister and formed a new government. This was a crucial step, as Theresa May was committed to drive down immigration numbers at any cost, considering that the tough stance against immigration was one of the main features of the “leave” campaign.2745FOLLIS, K., “Maritime Migration, Brexit and the Future of European Borders: Anthropological Previews,” 2017, Česky Lid, 104(1), https://www.jstor.org/stable/26426236, retrieved on 06/06/2025, pp. 9-10. May therefore steered the UK towards an even harder line on migration.
In 2017, roughly two years into the operation, a report titled “Operation Sophia: A Failed Mission” by the Lords Select Committee determined that Operation Sophia had not stopped people smuggling or deterred the flow of “migrants.”2746House of Lords, European Union Committee, Operation Sophia: a failed mission, 2nd Report of Session 2017-2019, 12/07/2017, https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf, retrieved on 18/08/2020 [https://web.archive.org/web/20200818085750/https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf] It assessed that a naval mission was not the right tool to “tackle” migration in the Central Mediterranean and that there were cheaper and more suitable ships to continue the essential task of Search and Rescue.2747House of Lords, European Union Committee, Operation Sophia: a failed mission, 2nd Report of Session 2017-2019, 12/07/2017, https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf, retrieved on 18/08/2020 [https://web.archive.org/web/20200818085750/https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf], p. 5. The House further expressed its concerns with the reports of human rights abuses committed by the Libyan coastguard.2748House of Lords, European Union Committee, Operation Sophia: a failed mission, 2nd Report of Session 2017-2019, 12/07/2017, https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf, retrieved on 18/08/2020 [https://web.archive.org/web/20200818085750/https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf], pp. 12-13. It therefore asked the Government to provide them with an assessment of the extent to which the human rights elements of Operation Sophia’s training packages were likely to improve the treatment of “migrants” by the coastguard.2749House of Lords, European Union Committee, Operation Sophia: a failed mission, 2nd Report of Session 2017-2019, 12/07/2017, https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf, retrieved on 18/08/2020 [https://web.archive.org/web/20200818085750/https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/5/5.pdf], pp. 12-13.
IVLibyan coastguard support
In the context of the anticipated expansion of Sophia’s mandate vis-à-vis Libya, the UK sought to stabilize the GNA early on. To this end, Foreign Minister Hammond met with the new Prime Minister of the GNA Fayez al Serraj in April 2016.2750House of Lords, European Union Committee, Operation Sophia, the EU’s naval mission in the Mediterranean; an impossible challenge, 13/05/2016, https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf, retrieved on 23/08/2024 [https://web.archive.org/web/20240830143845/https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf], p. 21. The UK pledged its support for the GNA with 10 million pounds, of which 1.5 million pounds were specifically earmarked “for tackling illegal migration, smuggling and organised crime.”2751House of Lords, European Union Committee, Operation Sophia, the EU’s naval mission in the Mediterranean; an impossible challenge, 13/05/2016, https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf, retrieved on 23/08/2024 [https://web.archive.org/web/20240830143845/https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf], p. 21. A report issued by the House of Lords European Union Committee on Operation Sophia a month after, cites two experts on migration issues stating that “forcing people… back to Libya… would merely expose many already severely abused people back into the hands of those who abused them” and voicing concerns that doing so would violate international law.2752House of Lords, European Union Committee, Operation Sophia, the EU’s naval mission in the Mediterranean; an impossible challenge, 13/05/2016, https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf, retrieved on 23/08/2024 [https://web.archive.org/web/20240830143845/https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/144/144.pdf], p. 22. Despite this very clear warning of the consequences a policy of orchestrated pushback to Libya would incur, the UK went ahead with its support for the expansion of Sophia’s mandate to train the Libyan coastguard.
As a report of the Independent Commission for Aid Impact notes, there have been substantial transparency issues with projects which were implemented in Libya with UK aid.2753The Parliament, The bigger picture: ensuring a joined-up approach across Government, 05/03/2019, https://publications.parliament.uk/pa/cm201719/cmselect/cmintdev/1433/143308.htm, retrieved on 17/09/2020 [https://web.archive.org/web/20200917151222/https://publications.parliament.uk/pa/cm201719/cmselect/cmintdev/1433/143308.htm] para 143. In a letter dated September 25th, 2017, the Foreign and Commonwealth Office stated that the UK had given “humanitarian assistance” to Libya through the Department for International Development (DFID) and “direct migration programming” through the cross government Conflict, Stability and Security Fund (CSSF) since 2015.2754Foreign & Commonwealth Office, North Africa Joint Unit, Freedom of Information Act 2000 Request Ref: 0716-17, 25/03/2017, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917151417/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf], p. 1. The UK supported the training of the Libyan coastguard and Navy through the CSSF.2755Foreign & Commonwealth Office, North Africa Joint Unit, Freedom of Information Act 2000 Request Ref: 0716-17, 25/03/2017, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917151417/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf], p. 1.
As previously referenced, the UK had provided 695 000 euros in voluntary financial contributions specifically to the training of the Libyan coastguard and Navy since 2015, as well as supplied an 8-person Royal Marine team since November 2016.2756Foreign & Commonwealth Office, North Africa Joint Unit, Freedom of Information Act 2000 Request Ref: 0716-17, 25/03/2017, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917151417/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf], p. 1. No direct contribution to the EUTF Window for North Africa was made.2757Foreign & Commonwealth Office, North Africa Joint Unit, Freedom of Information Act 2000 Request Ref: 0716-17, 25/03/2017, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917151417/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651588/FOI_0716-17_-_Letter.pdf], p. 2. However, funds from the UK Official Development Assistance have been allocated indirectly, from the EU contributions to the EUTF.
Broadly speaking, there was a steady increase in support of migration-related programs addressed by UK aid during the presented period. In 2015, the UK created a Migration Department within DFID, and capacity was added in the Foreign Office, Home Office and Cabinet Office in order to address the challenges of “irregular migration.” Moreover, a cross-government Migration Steering Group was established, co-chaired by the National Security Adviser and the Home Office.2758Independent Commission for Aid Impact, The UK’s aid response to irregular migration in the central Mediterranean, March 2017, https://icai.independent.gov.uk/wp-content/uploads/Migration-ICAI-review-EMBARGOED-00.01-10-March-2017.pdf, retrieved on 13/07/2020 [https://web.archive.org/web20200713063524/https://icai.independent.gov.uk/wp-content/uploads/Migration-ICAI-review-EMBARGOED-00.01-10-March-2017.pdf], p. 5.
DKey individuals
Suspects
-
Philip Hammond>
2014–2016
United KingdomUK Minister for Foreign Affairs
-
Theresa May>
2010–2016
United KingdomHome Secretary
2016–2019
United KingdomPrime Minister
Involved
-
Alan Duncan>
06/2016–07/2019
United KingdomMinister for European Neighborhood and the Americas
-
Baroness Goldie>
2019–2023
United KingdomMinister of State
-
Boris Johnson>
07/2016–07/2018
Council of the European UnionUnited KingdomForeign Minister
2019–2022
The European CouncilUnited KingdomPrime Minister
-
Lewis Brandon>
06/2017–01/2018
United KingdomMinister for future borders and immigration
-
David Cameron>
05/2010–07/2016
United KingdomPrime Minister
-
Earl Howe>
2015–2019
United KingdomMinister of State
-
James Brokenshire>
02/2014–07/2017
United KingdomMinister for Future Borders and Immigration
-
James Cleverly>
02/2020–2022
United KingdomMinister for Middle East & North Africa
-
James Heappey>
2020–2024
United KingdomMinister for the Armed Forces
-
Jeremy Hunt>
07/2018–07/2019
United KingdomCouncil of the European UnionForeign Minister
-
Lord Astor of Hever>
2010–2015
United KingdomMinister of State
-
Mark Lancaster>
2017–2019
United KingdomMinister for the Armed Forces
-
Nicolas Carter>
06/2018–2021
United KingdomDefence Minister
-
Nicholas Houghton>
2013–07/2016
United KingdomDefence Minister
-
Richard Heaton>
08/2012008/2015
United KingdomPermanent Secretary of the Prime Minister's Cabinet
-
Robert Goodwill>
07/2016–06/2017
United KingdomMinister for future borders and immigration
-
Sajid Javid>
04/2018–07/2019
United KingdomInterior Minister
-
Seema Kennedy>
07/2019–12/2019
United KingdomMinister for future borders and immigration
-
Sir Jeremy Heywood>
2008–2018
United KingdomPolicy Advisor to the Prime Minister
-
Amber Rudd>
06/2016–04/2018
United KingdomCouncil of the European UnionInterior Minister
-
Anne-Marie Trevelyan>
2019–2020
United KingdomMinister for the Armed Forces
-
Caroline Nokes>
01/2018–07/2019
United KingdomMinister for Future Borders and Immigration
-
Chris Philp>
2020–2021
United KingdomMinister for Immigration Compliance
-
Mark François>
2013–2015
United KingdomMinister for the Armed Forces
-
Mike Penning>
2016–2017
United KingdomMinister for the Armed Forces
-
Penny Mordaunt>
2015–2016
United KingdomCouncil of the European UnionMinister for the Armed Forces
-
Priti Patel>
07/2019–2022
Council of the European UnionUnited KingdomInterior Minister
-
Stuart Peach>
07/2016–06/2018
United KingdomChief of Defence Staff
-
Wendy Morton>
02/2020–
United KingdomMinister for European Neighborhood and the Americas
Related
- 2642Government of the UK, How government works, https://www.gov.uk/government/how-government-works, retrieved on 17/09/2020 [https://web.archive.org/web/20200916231457/https://www.gov.uk/government/how-government-works]
- 2643Cabinet Office, Annual Report and Accounts 2015-16, 07/07/2016, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/536577/Cabinet-Office-annual-report-2015-2016.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101059/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/536577/Cabinet-Office-annual-report-2015-2016.pdf], p. 14.
- 2644Cabinet Office, Annual Report and Accounts 2014-15, 17/09/2015, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf, retrieved on 17/09/2020 [https://web.archive.org/web/20200917101440/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465137/Cabinet_Office_Annual_Report_and_Accounts_2014-15_-_Web_Accessible_Version.pdf]
- 2645Ibid.
- 2646Foreign, Commonwealth & Development Office, About Us, https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about, retrieved on 17/09/2020 [https://web.archive.org/web/20200915044417/https://www.gov.uk/government/organisations/foreign-commonwealth-development-office/about]
XIII
Visegrad Group (V4)
AExecutive Summary
The Visegrad Group (V4) was established in 2004 to push for the admission of Hungary, Poland, Slovakia, and the Czech Republic to the EU. After their admission, the Visegrad group sustained their alliance to put forward a common political agenda.
Since 2014, the stance of the group with respect to EU migration policies was consistently oriented around the so-called “migratory crisis”, portraying “migrants” as the “enemy”. During the successive EU Council presidencies of the group, the countries regularly met to delineate ways to implement their objectives, one of which was to block policies at the Commission level so other Member States had to make concessions regarding migration policy.
From 2015, the V4 started regularly blocking propositions put forward by the Commission, pushed for repressive migration policies, and considered search and rescue to be a pull-factor that must be avoided. Through their successive Council presidencies, the V4 advocated for the securitization of the EU’s external borders and were reportedly substantial contributors to the policies implemented during that time, including but not limited to Operation Sophia. This approach led to the V4’s contribution of 35 million euros to the EUTF. The goal of this funding initiative was inter alia to finance and support the ‘pull-back’ policy. The money provided by the V4 made up the largest part of the funds allocated to the training of the Libyan coastguards.
Throughout the years, the V4 have claimed to have significantly influenced the direction of EU migration policy towards its vision of stopping migration across the Mediterranean at all costs. Members of the V4 such as Hungary repeatedly made statements about the need to prevent “migrants” from leaving Libya, regardless of the lethal consequences and the horrific conditions inside Libyan detention camps. The V4 also endorsed and advocated for the criminalization of rescue NGOs, obstructing crucial search and rescue missions that were attempting to fill the lethal gap left by the withdrawal of EU vessels.
BDecision-making Structures
The Visegrad Group (V4) is an alliance between Hungary, Poland, Slovakia and the Czech Republic. Its initial purpose served to attain membership of the European Union. Once this goal was achieved in 2004, the V4 continued functioning as an association of countries with common objectives and values within the EU structure. Their official aim is to “contribute towards building the European security architecture.”2759The Visegrad Group, About the Visegrad Group, http://www.visegradgroup.eu/about, retrieved on 22/09/2020 [https://web.archive.org/web/20200922132845/http://www.visegradgroup.eu/about] This includes regular meetings between heads of state, ministers, and government employees, to coordinate common policy objectives and strategies not only within their region but within the EU as a whole. Generally, the V4 alliance is marked by a “high level of socialization.”2760NIC, M., “The Visegrád Group in the EU: 2016 as a turning-point?,” 2016, European View 15, https://link.springer.com/article/10.1007/s12290-016-0422-6, p. 284. As such, they form a voting bloc in the EU Councils and Working Groups. Similarly to the European Council, the V4 agenda is influenced by rotating presidencies which last 12 months. The relevant time period was administered by the following presidencies: Hungary (2013-14), Slovakia (2014-15), Czech Republic (2015-16), Poland (2016-17), Hungary (2017-18), and Slovakia (2018-19).
IPolitical Context
During the relevant period, the governments of the V4 focused their discourse on what they very early on described as a “migratory crisis”, producing a series of talking points systematically criminalizing and dehumanizing “migrants.”2761PACHOCKA, M., “Understanding the Visegrad Group States’ Response to the Migrant and Refugee Crises 2014+ in the European Union,” 13th IMISCOE Annual Conference, 30/06/2016, https://doi.org/10.13140/RG.2.1.3952.7920, p. 27ff. This discourse, popularized through the massive use of governmental and state tools, spread over the continent, which soon would accept the presentation of “migrants” as a reified category and a threat to security, common values, and culture instruments,2762GIGITASHVILI, G. and SIDLO K., W., “Merchants of Fear. Discursive securitization of the refugee crisis in the Visegrad Group countries,” Euromesco, 07/01/2019, https://www.euromesco.net/wp-content/uploads/2018/12/Brief89_Merchants-of-fear.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922135020/https://www.euromesco.net/wp-content/uploads/2018/12/Brief89_Merchants-of-fear.pdf] thus participating in the adoption of aggressive policies against this vulnerable group and the violent degradation of the living conditions of “migrant” populations. This discourse was used as a lever to impose Visegrad perspectives on European institutions and harden European Union policies, thus directly nourishing the commission of the alleged crimes. It was accompanied by symbolic decisions that falls outside the scope of this Communication but nonetheless weighed on the overall situation, such as the staging of a collective refusal to sign the Global Compact on Migration, which was accompanied by a discursive distortion of the content of the agreement.2763FINE, S., “All at sea: Europe’s crisis of solidarity on migration,” European Council on Foreign Relations, 14/10/2019, https://www.ecfr.eu/publications/summary/all_at_sea_europes_crisis_of_solidarity_on_migration, retrieved on 22/09/2020 [https://web.archive.org/web/20200909133538/https://www.ecfr.eu/publications/summary/all_at_sea_europes_crisis_of_solidarity_on_migration] 2764Interviewee I38
These discursive strategies allowed for a better acceptance of repressive policies in domestic contexts and served as bargaining tools to retain or obtain power at the EU level.2765ZACHOVA, A., et. al., “Visegrád and migration: Few prospects for a change in position,” Euractiv, 16/01/2017, https://www.euractiv.com/section/global-europe/news/visegrad-and-migration-few-prospects-for-a-change-in-position/, retrieved on 22/09/2020 [https://web.archive.org/web/20191019123858/https://www.euractiv.com/section/global-europe/news/visegrad-and-migration-few-prospects-for-a-change-in-position/] Visegrad’s economic importance, and therefore political influence, especially towards Germany, is not to be underestimated. The group, which was described in 2017 as “Germany’s most important trade partner,”2766HARPER, J., “Visegrad Group: A new economic heart of Europe?.” Deutsche Welle, 05/07/2019, https://www.dw.com/en/visegrad-group-a-new-economic-heart-of-europe/a-49483505, retrieved on 22/09/2020 [https://web.archive.org/web/20200922141136/https://www.dw.com/en/visegrad-group-a-new-economic-heart-of-europe/a-49483505] represents the 5th largest economy in the EU, and the 12th internationally.2767HARPER, J., “Visegrad Group: A new economic heart of Europe?.” Deutsche Welle, 05/07/2019, https://www.dw.com/en/visegrad-group-a-new-economic-heart-of-europe/a-49483505, retrieved on 22/09/2020 [https://web.archive.org/web/20200922141136/https://www.dw.com/en/visegrad-group-a-new-economic-heart-of-europe/a-49483505]
IIHungary
Hungary is a parliamentary democracy. The executive power is held by its government with a Prime Minister at its head, assisted by a Deputy Prime Minister. The government is composed of the Prime Minister, ministers with and without portfolio. The ministry in charge of migration policy, including at EU level, is the Ministry of the Interior.2768European Migration Network, Annual Policy Report 2014 on Migration and Asylum Policy in Hungary, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/13a_hungary_apr_part2_final.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922141556/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/13a_hungary_apr_part2_final.pdf], p. 4. Other relevant ministries are the Ministry of Foreign Affairs and Trade, the Ministry of Justice, and the Ministry of Defense.2769European Migration Network, Annual Policy Report 2014 on Migration and Asylum Policy in Hungary, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/13a_hungary_apr_part2_final.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922141556/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/13a_hungary_apr_part2_final.pdf], p. 4. The Ministry of the Interior executes its work through two bodies, the Office of Immigration and Nationality and the police, who is responsible for border protection.2770International Centre for Migration Policy Development, Prague Process, Hungary Migration Profile Light 2014, 07/12/2018, https://www.pragueprocess.eu/documents/repo/26/PPTI_Migration_Profile_Light_EN%20Hungary_FINAL.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922142020/https://www.pragueprocess.eu/documents/repo/26/PPTI_Migration_Profile_Light_EN%20Hungary_FINAL.pdf], p. 3.
IIICzech Republic
The Czech Republic is a unitary parliamentary republic. The President, head of state, appoints the Prime Minister, head of the government. The government is composed by the Prime Minister, several deputy Prime Minister and Ministers.2771Government of the Czech Republic, Members of the Government, https://www.vlada.cz/en/vlada/, retrieved on 22/09/2020 [https://web.archive.org/web/20200801120757/https://www.vlada.cz/en/vlada/] However, the President still assumes a certain level of power and does not act as a mere figurehead.2772Prague Castle, Presidential Powers, https://www.hrad.cz/en/president-of-the-cr/current-president-of-the-cr/presidential-powers, retrieved on 22/09/2020 [https://web.archive.org/web/20200702024018/https://www.hrad.cz/en/president-of-the-cr/current-president-of-the-cr/presidential-powers]
The Minister of the Interior has a legislative and strategic competence over the field of migration and asylum.2773European Migration Network, Annual Policy Report 2014 on Asylum and Migration Czech Republic, 2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143021/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf], p. 11 (p. 13 of pdf). Within the Ministry of the Interior, a unit called the Department for Asylum and Migration Policy is responsible for the “field[s] of international protection, refugees, entry and residence of foreign nationals, the integration of foreigner’s concept, the State Integration Programme and Schengen cooperation.”2774European Migration Network, Annual Policy Report 2014 on Asylum and Migration Czech Republic, 2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143021/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf], p. 11 (p. 13 of pdf). There is also an interministerial body called the Coordinating Body for the Management of State Border Protection and Migration. Its activities are led by the Minster of the Interior but chaired by the First Deputy Minister of the Interior for Internal Security.2775Ministerstvo vnitra České republiky, Meziresortní orgány, https://www.mvcr.cz/migrace/clanek/meziresortni-organy.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143439/https://www.mvcr.cz/migrace/clanek/meziresortni-organy.aspx] This body discusses the general direction of Czech migration policy, meaning that all the ministries present in this body are part of the decision-making processes relating to migration policies.2776Ministerstvo vnitra České republiky, Meziresortní orgány, https://www.mvcr.cz/migrace/clanek/meziresortni-organy.aspx, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143439/https://www.mvcr.cz/migrace/clanek/meziresortni-organy.aspx]
The Ministry of Foreign Affairs is also of relative importance. It is in charge of the creation and implementation of the Czech Republic’s foreign policy.2777European Migration Network, Annual Policy Report 2014 on Asylum and Migration Czech Republic, 2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143021/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf], p. 13 (p. 15 of pdf). It participates in the establishment of EU related policy and is in charge of foreign development aid.2778European Migration Network, Annual Policy Report 2014 on Asylum and Migration Czech Republic, 2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143021/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/06a_czech_rep_apr_2014_part2_en_version.pdf], p. 13 (p. 15 of pdf).
IVPoland
Poland is a semi-presidential republic. The President is elected directly and therefore holds certain important powers, such as dissolving the Parliament or representing Poland internationally.2779Global Edge, Poland:Government, https://globaledge.msu.edu/countries/poland/government, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143806/https://globaledge.msu.edu/countries/poland/government] The head of the executive is the Prime Minister. With Ministers, the PM forms a government that sets an executive political agenda.2780Global Edge, Poland:Government, https://globaledge.msu.edu/countries/poland/government, retrieved on 22/09/2020 [https://web.archive.org/web/20200922143806/https://globaledge.msu.edu/countries/poland/government] The Ministry of the Interior and Administration oversees migration policy, including overseeing border control.2781International Centre for Migration Policy Development, Poland Extended Migration Profile, 2010, https://www.pragueprocess.eu/en/migration-observatory/publications?task=document.download&id=15, retrieved on 22/09/2020, [https://web.archive.org/web/20200922144139/https://www.pragueprocess.eu/en/migration-observatory/publications?task=document.download&id=15], p. 57.
The Minister of Foreign Affairs advances the Polish foreign policy objectives within the EU, with other Member States and internationally.2782The Republic of Poland, Ministry of Foreign Affairs, Basic Information, https://www.gov.pl/web/diplomacy/basic-information, retrieved on 22/09/2020 [https://web.archive.org/web/20200918131708/https://www.gov.pl/web/diplomacy/basic-information]
VSlovakia
Slovakia is a parliamentary democracy where the Prime Minister is the head of the executive.2783Government Office of the Slovak Republic, Government of the Slovak Republic, https://www.vlada.gov.sk//government-of-the-slovak-republic/#:~:text=The%20Government%20of%20the%20Slovak,recommendation%20of%20the%20Prime%20Minister, retrieved on 22/09/2020 [https://web.archive.org/web/20201005155733/https://www.vlada.gov.sk/government-of-the-slovak-republic/] Its government is composed of Deputies and Government Ministers and is responsible to the Slovak Parliament.2784Government Office of the Slovak Republic, Government of the Slovak Republic, https://www.vlada.gov.sk//government-of-the-slovak-republic/#:~:text=The%20Government%20of%20the%20Slovak,recommendation%20of%20the%20Prime%20Minister, retrieved on 22/09/2020 [https://web.archive.org/web/20201005155733/https://www.vlada.gov.sk/government-of-the-slovak-republic/] The Slovak migration policy is primarily in the hands of the Minister of the Interior who is “responsible for regular and irregular migration issues and for asylum and integration of persons granted asylum, i.e. issues relating to the entry and stay of aliens […] the protection and management of state borders and the population register.”2785European Migration Network, Annual Report on Migration and Asylum Policies 2013 Slovak Republic, 2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922145148/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf], p. 11. The Interior Ministry is in charge of the Migration Office and the Bureau of the Border and Aliens Police,2786European Migration Network, Annual Report on Migration and Asylum Policies 2013 Slovak Republic, 2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922145148/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf], p. 11. while the Foreign Affairs Ministry heads Slovak foreign policy development and international development aids funds.2787European Migration Network, Annual Report on Migration and Asylum Policies 2013 Slovak Republic, 2014, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922145148/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2013/24a.slovak_republic_national_policy_report_migration_asylum_2013_en_version_final.pdf], p. 12.
CImplication in Criminal Policies
In early 2014, the V4 meetings and activities mainly focused on the Ukraine crisis and did not decisively coordinate on migration policies.2788Interviewee I44 The V4’s coordinated pressure campaign on EU migration policies began with the September 2015 Commission decision to impose “migrant” quotas despite previous opposition from the V4.2789LOPEZ-DORIGA, E., “Refugee crisis: The divergence between the European Union and the Visegrad Group,” Universidad de Navarra, 12/06/2018, https://www.unav.edu/web/global-affairs/detalle/-/blogs/refugee-crisis-the-divergence-between-the-european-union-and-the-visegrad-group, retrieved on 22/09/2020 [https://web.archive.org/web/20200922145858/https://www.unav.edu/web/global-affairs/detalle/-/blogs/refugee-crisis-the-divergence-between-the-european-union-and-the-visegrad-group] 2790ALMASSY, F., “The European Court ruled against Hungary and Slovakia on the migrant quotas case,” Visegrad Post, 06/09/2017, https://visegradpost.com/en/2017/09/06/the-european-court-ruled-against-hungary-and-slovakia-on-the-migrant-quotas-case/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922150442/https://visegradpost.com/en/2017/09/06/the-european-court-ruled-against-hungary-and-slovakia-on-the-migrant-quotas-case/] Hungary and Slovakia later challenged the decision at the Court of Justice of the European Union, which rejected it in 2017.2791ALMASSY, F., “The European Court ruled against Hungary and Slovakia on the migrant quotas case,” Visegrad Post, 06/09/2017, https://visegradpost.com/en/2017/09/06/the-european-court-ruled-against-hungary-and-slovakia-on-the-migrant-quotas-case/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922150442/https://visegradpost.com/en/2017/09/06/the-european-court-ruled-against-hungary-and-slovakia-on-the-migrant-quotas-case/]
From 2015, the V4 started blocking migration-related propositions put forward by the Commission.2792Interviewee I41 The V4’s stance during this period was generally described by their partners as destructive at every EU meeting on all levels of migration policy.2793Interviewee I42 2794Interviewee I40 2795Interviewee I41 France and Germany made multiple concessions to the V4 in order to achieve consensus that would allow for a continental policy.2796Interviewee I41 2797“Visegrad countries urge stronger EU border defense,” Deutsche Welle, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 22/09/2020 [https://web.archive.org/web/20190814091824/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264]
For example, the discussions on EUNAVFOR MED Operation Irini, officially aimed at enforcing the UN embargo on arms in Libya, were an opportunity for Hungary to insist on its imposed requirement to exclude any search and rescue responsibilities,2798Interviewee I45 expressing its “high preoccupation” regarding the possibility that the operation would create a new pull factor.2799Interviewee I35 2800Interviewee I45 The idea of “too many boats in the Mediterranean” creating a pull factor was central to Hungarian authorities’ stance on migration policy throughout the relevant time period.2801Interviewee I35
As Member States, the V4 were formally involved in the policies pursuant to which the alleged crimes were committed. Information on some of their concrete involvement is provided below.
ISuccessive Presidencies
(a) Slovak Presidency July 2014 – June 2015
According to the 2015 Annual Report of Visegrad, the Slovak Presidency during the 2014/15 cycle actively coordinated numerous multi-level meetings on forming a common position among the V4 to present at the EU on migration policies.2802Ministry of Foreign and European Affairs of the Slovak Republic, Report of the Slovak presidency of the Visegrad Group July 2014 – June 2015, http://www.visegradgroup.eu/documents/annual-reports/annual-report-sk-v4-pres, retrieved on 22/09/2020 [https://web.archive.org/web/20200226010716/http://www.visegradgroup.eu/download.php?docID=285] This comprised regular meetings of heads of state, foreign ministers, advisors, and even operational officers.2803Ministry of Foreign and European Affairs of the Slovak Republic, Report of the Slovak presidency of the Visegrad Group July 2014 – June 2015, http://www.visegradgroup.eu/documents/annual-reports/annual-report-sk-v4-pres, retrieved on 22/09/2020 [https://web.archive.org/web/20200226010716/http://www.visegradgroup.eu/download.php?docID=285], pp. 5-6. Accordingly, the voice of the V4 countries was specifically reflected in the European Council.2804Ministry of Foreign and European Affairs of the Slovak Republic, Report of the Slovak presidency of the Visegrad Group July 2014 – June 2015, http://www.visegradgroup.eu/documents/annual-reports/annual-report-sk-v4-pres, retrieved on 22/09/2020 [https://web.archive.org/web/20200226010716/http://www.visegradgroup.eu/download.php?docID=285], p. 5. The European Council’s Conclusions of June 2015 came shortly after the launch of EUNAVFOR MED Sophia and highlighted the need to “better contain the growing flows of illegal migration […] [and] reinforce […] overall cooperation with countries of origin and transit […] on stemming the flows of irregular migrants and on tackling the root causes of migration so as to reduce the incentives for illegal migration.”2805European Council, European Council meeting (25 and 26 June 2015) – Conclusions, 26/06/2015, https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200917095507/https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf] The Conclusions further mentioned the upcoming Valletta Summit to implement these objectives.2806European Council, European Council meeting (25 and 26 June 2015) – Conclusions, 26/06/2015, https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200917095507/https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf]
(b) Czech Presidency July 2015 – June 2016
Under the 2015/16 Czech Presidency migration issues increasingly took center stage and were the main topic at all V4 Prime Minister summits (4 September 2015, 15 February 2016, 8 June 2016).2807Visegrad Group, Annual Report of the Czech V4 Presidency 2015–2016, http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the, retrieved on 22/09/2020 [https://web.archive.org/web/20200922152450/http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the] During an extraordinary summit on the topic, the V4 stated their intention to “further contribute to providing experts and technical equipment for EU external border protection (including Frontex and bilaterally to most exposed Member States)… and CSDP policy missions against traffickers and smuggler networks.”2808Visegrad Group, Joint Statement of the Heads of Government of the Visegrad Group Countries, 04/09/2014 http://www.visegradgroup.eu/calendar/2015/joint-statement-of-the-150904, retrieved on 22/09/2020 [https://web.archive.org/web/20200922152824/http://www.visegradgroup.eu/calendar/2015/joint-statement-of-the-150904] Special emphasis was placed on the importance to prioritize “effective control and protection of EU external borders” and on Frontex.2809Visegrad Group, Joint Statement of the Heads of Government of the Visegrad Group Countries, 04/09/2014 http://www.visegradgroup.eu/calendar/2015/joint-statement-of-the-150904, retrieved on 22/09/2020 [https://web.archive.org/web/20200922152824/http://www.visegradgroup.eu/calendar/2015/joint-statement-of-the-150904] This point was reiterated by the V4 at the December 2015 European Council meeting.2810Visegrad Group, Annual Report of the Czech V4 Presidency 2015–2016, http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the, retrieved on 22/09/2020 [https://web.archive.org/web/20200922152450/http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the] The annual report credits the V4 with having “substantial[ly] contribut[ed] to EU measures” and having engaged in bilateral assistance on external border protection. On 11 September 2015, the V4 held a meeting with the German Foreign Minister, Frank Walter Steinmeier, and the Luxembourg Foreign Minister, Jean Asselborn, on the topic of migration,2811Visegrad Group, Annual Report of the Czech V4 Presidency 2015–2016, http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the, retrieved on 22/09/2020 [https://web.archive.org/web/20200922152450/http://www.visegradgroup.eu/documents/annual-reports/annual-report-of-the] they issued a Joint Communiqué putting forward several points, notably a call for a reinforcement of Operation Sophia,2812Visegrad Group, Joint Communiqué of the Visegrad Group Ministers of Foreign Affairs, http://www.visegradgroup.eu/calendar/2015/joint-communique-of-the-150911, retrieved 22/09/2020 [https://web.archive.org/web/20200922153438/http://www.visegradgroup.eu/calendar/2015/joint-communique-of-the-150911] and, by 2016 all four Member States were part of Frontex Joint Operation Triton.2813“A Triton-művelet és Poszeidon-művelet helyett a szerb határra figyelünk,” Index, 17/08/2015, https://index.hu/kulfold/2015/08/17/a_triton-muvelet_es_poszeidon-muvelet_helyett_a_szerb_hatarra_figyelunk/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922153747/https://index.hu/kulfold/2015/08/17/a_triton-muvelet_es_poszeidon-muvelet_helyett_a_szerb_hatarra_figyelunk/ 2814FRONTEX, Joint Operation Triton (Italy), 10/10/2016, https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes, retrieved on 22/09/2020 [https://web.archive.org/web/20200903160931/https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy—ekKaes]
Although the Polish government under Ewa Kopacz also argued against the “migrant-quota” implementation like its V4 counterparts, the government finally voted in favor of them in 2015 under European pressure.2815BACHMAN, B., “Diminishing Solidarity: Polish Attitudes toward the European Migration and Refugee Crisis,” Migration Policy Institute, 16/06/2016, https://www.migrationpolicy.org/article/diminishing-solidarity-polish-attitudes-toward-european-migration-and-refugee-crisis, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154459/https://www.migrationpolicy.org/article/diminishing-solidarity-polish-attitudes-toward-european-migration-and-refugee-crisis] After the next election, a right-wing party took the lead and the official stance on migration policy became harsher and more in line with the other V4 states. In 2016, PM Beata Szydlo made a declaration that contradicted the plan her predecessor had voted for: “I say very clearly that I see no possibility at this time of immigrants coming to Poland.”2816BACHMAN, B., “Diminishing Solidarity: Polish Attitudes toward the European Migration and Refugee Crisis,” Migration Policy Institute, 16/06/2016, https://www.migrationpolicy.org/article/diminishing-solidarity-polish-attitudes-toward-european-migration-and-refugee-crisis, retrieved on 22/09/2020 [https://web.archive.org/web/20200922154459/https://www.migrationpolicy.org/article/diminishing-solidarity-polish-attitudes-toward-european-migration-and-refugee-crisis]
(c) Polish Presidency July 2016 – June 2017
This trend of increasing concentration of the V4 on migration continued under the 2016/17 Polish Presidency and ultimately resulted in the creation of the V4’s “Migration Crisis Response Mechanism.”2817Minister of Foreign Affairs of the Republic of Poland, Report on the Polish Presidency of the Visegrad Group 1 July 2016 – 30 June 2017, http://www.visegradgroup.eu/documents/annual-reports/polish-presidency-report-180809, retrieved on 22/09/2020, p. 6 (p. 5 of pdf)[https://web.archive.org/web/20200203071555/http://www.visegradgroup.eu/download.php?docID=361], p. 6 (p. 5 of pdf). As in previous years, the V4 met with other Member States ahead of official EU meetings to discuss this topic, including Angela Merkel on 6 September 2016, Emmanuel Macron on 23 June 2017, and at an interior minister meeting of the V4, Austria, and deputy ministers of interior from Belgium, Bulgaria, and Slovenia. The latter meeting birthed the “Migration Crisis Respose Mechanism” serving to “exchange good practices [between states]… [in light] of the uncontrolled mixed migration movements [being] a threat to the EU and Member States security.”2818Visegrad Group, Joint Statement of V4 Interior Ministers on the Establishment of the Migration Crisis Response Mechanism, 21/11/2016, http://www.visegradgroup.eu/calendar/2016/joint-statement-of-v4, retrieved on 22/09/2020 [https://web.archive.org/web/20200922155248/http://www.visegradgroup.eu/calendar/2016/joint-statement-of-v4] The accompanying statement spoke of “significant results [potentially] [being] achieved by a broad set of measures, such as improving security of external borders… [and] and strengthening cooperation with third countries along migration routes.”2819Visegrad Group, Joint Statement of V4 Interior Ministers on the Establishment of the Migration Crisis Response Mechanism, 21/11/2016, http://www.visegradgroup.eu/calendar/2016/joint-statement-of-v4, retrieved on 22/09/2020 [https://web.archive.org/web/20200922155248/http://www.visegradgroup.eu/calendar/2016/joint-statement-of-v4] At the Malta Summit in February 2017, Orbán stated that the “best solution would be to take back migrants from the Mediterranean to Libya and not to Malta or Italy.”2820MAGYARI, P., “Orbán Máltán: Vigyük vissza a migránsokat Líbiába,” !!!444!!!, 03/02/2017, https://444.hu/2017/02/03/orban-maltan-vigyuk-vissza-migransokat-libiaba, retrieved on 24/02/2020 [https://web.archive.org/web/20170224201120/https://444.hu/2017/02/03/orban-maltan-vigyuk-vissza-migransokat-libiaba]
(d) Hungarian Presidency July 2017 - June 2018
Similarly to previous annual reports, the 2017/18 Hungarian Presidency claimed that one of the V4’s “main achievements” was to have “refocus[ed] the migration-related EU discourse on security and border control.”2821Hungarian Ministry of Foreign Affairs, Achievements of the 2017/18 Hungarian Presidency of the Visegrad Group, http://www.visegradgroup.eu/documents/annual-reports/achievements-of-the-2017 retrieved on 22/09/2020 [https://web.archive.org/web/20200226010711/http://www.visegradgroup.eu/download.php?docID=367], p. 2. These concerns were translated into a 35 million euro “contribution to border protection efforts in Libya” in December 2018,2822Hungarian Ministry of Foreign Affairs, Achievements of the 2017/18 Hungarian Presidency of the Visegrad Group, http://www.visegradgroup.eu/documents/annual-reports/achievements-of-the-2017 retrieved on 22/09/2020 [https://web.archive.org/web/20200226010711/http://www.visegradgroup.eu/download.php?docID=367], p. 2. i.e., earmarked for training the Libyan coastguards. A German opposition party alleged that they went against EU principles, since the V4 only provided that money if it was to be used for this purpose.2823Interviewee I11 The funds were allocated through the EUTF which allows for funds to be tied to a specific region but not to a specific mission.2824Deutscher Bundestag, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Heike Hänsel, Christine Buchholz, weiterer Abgeordneter und der Fraktion DIE LINKE. – Drucksache 19/10204 – Rechtmäßigkeit der Zweckbindung von Mitteln im Nothilfe-Treuhandfonds der EU für Afrika, 21/06/2019 http://dipbt.bundestag.de/doc/btd/19/110/1911033.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160330/http://dipbt.bundestag.de/doc/btd/19/110/1911033.pdf], p. 1. The German government claimed that the V4 merely paid into the North Africa fund but did not tie the funds to a specific cause. This is contradicted by the Hungarian Minister of Foreign Affairs Szijjártó himself who stated that the V4 had “agreed to contribute 35 million euros to financing a border control program in [Libya].”2825“Hungary’s FM: Until there is unity and stability in Libya, Europe’s security is at serious risk,” About Hungary, 23/01/2018, http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160634/http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/]
In a letter to Italian Prime Minister Paolo Gentiloni, the V4 expressed their admiration for Italy’s work and pledged to support its government.2826Visegrad Group, V4 Letter to Prime Minister of Italy, 19/07/2017, http://www.visegradgroup.eu/documents/official-statements/v4-letter-to-the-prime, retrieved on 31/01/2020 [https://web.archive.org/web/20200131155144/http://www.visegradgroup.eu/download.php?docID=321] They “assure[d] [Italy]… that [the V4 were] ready to contribute… to stopping the departures from Libya… and stemming irregular migration flows to Europe and especially Italy.”2827Visegrad Group, V4 Letter to Prime Minister of Italy, 19/07/2017, http://www.visegradgroup.eu/documents/official-statements/v4-letter-to-the-prime, retrieved on 31/01/2020 [https://web.archive.org/web/20200131155144/http://www.visegradgroup.eu/download.php?docID=321] The letter went further in detailing what this support could look like: contributions to “EU activities at the Southern borders of Libya ; training of the Libyan coastguard ; strengthening of capacities of EASO ; the Code of Conduct on NGOs.”2828Visegrad Group, V4 Letter to Prime Minister of Italy, 19/07/2017, http://www.visegradgroup.eu/documents/official-statements/v4-letter-to-the-prime, retrieved on 31/01/2020 [https://web.archive.org/web/20200131155144/http://www.visegradgroup.eu/download.php?docID=321] This letter was signed by Szydlo, Sobotka, Fico, and Orbán. Similar sentiments were expressed in other statements made by the V4 throughout that year. These consisted of calls for prioritizing “protecting external borders and stemming irregular migration as the main goals,” and increasing “cooperation with third countries along different migration routes.”2829Visegrad Group, Joint Declaration of Ministers of the Interior, 26/06/2018, http://www.visegradgroup.eu/calendar/2018/joint-declaration-of, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161758/http://www.visegradgroup.eu/calendar/2018/joint-declaration-of] The V4 also described the efforts made in the previous years as having upheld the security of the EU’s borders and mitigated migratory flows.2830Visegrad Group, Joint Declaration of Ministers of the Interior, 26/06/2018, http://www.visegradgroup.eu/calendar/2018/joint-declaration-of, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161758/http://www.visegradgroup.eu/calendar/2018/joint-declaration-of] They further reiterated their support for Frontex operations with third countries providing bilateral support.2831Visegrad Group, Joint Declaration of Ministers of the Interior, 26/06/2018, http://www.visegradgroup.eu/calendar/2018/joint-declaration-of, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161758/http://www.visegradgroup.eu/calendar/2018/joint-declaration-of]
In April 2018, Hungary unexpectedly vetoed a planned agreement between the EU and African governments because it was discontent that the pact did not “condemn migration strongly enough.”2832MAGYARI, P., “Magyarország megvétózta az EU-Afrika csúcs megállapodását, óriási a felháborodás,” !!!444!!!, 26/04/2018, https://444.hu/2018/04/26/magyarorszag-megvetozta-az-eu-afrika-csucs-megallapodasat-oriasi-a-felhaborodas, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161922/https://444.hu/2018/04/26/magyarorszag-megvetozta-az-eu-afrika-csucs-megallapodasat-oriasi-a-felhaborodas] Consequently, the High Representative of the Union for Foreign Affairs and Security Policy and the Commissioner for Migration had to sign instead of the EU, significantly weakening the agreement.2833MAGYARI, P., “Magyarország megvétózta az EU-Afrika csúcs megállapodását, óriási a felháborodás,” !!!444!!!, 26/04/2018, https://444.hu/2018/04/26/magyarorszag-megvetozta-az-eu-afrika-csucs-megallapodasat-oriasi-a-felhaborodas, retrieved on 22/09/2020 [https://web.archive.org/web/20200922161922/https://444.hu/2018/04/26/magyarorszag-megvetozta-az-eu-afrika-csucs-megallapodasat-oriasi-a-felhaborodas]
Later that summer, in June 2018, Czech Prime Minister Andrej Babis, with support from Austrian Chancellor Sebastian Kurz, advocated for increasing Frontex’ capacities to protect the “external borders” of the EU.2834“Visegrad countries urge stronger EU border defense,” Deutsche Welle, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 22/09/2020 [https://web.archive.org/web/20190814091824/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264] At the time, Babis noted that German Chancellor Angela Merkel was fully supportive of this idea.2835“Visegrad countries urge stronger EU border defense,” Deutsche Welle, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 22/09/2020 [https://web.archive.org/web/20190814091824/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264] Around the same time, the V4 boycotted an informal migration summit.2836“Visegrad countries urge stronger EU border defense,” Deutsche Welle, 21/06/2018, https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264, retrieved on 22/09/2020 [https://web.archive.org/web/20190814091824/https://www.dw.com/en/visegrad-countries-urge-stronger-eu-border-defense/a-44336264]
(e) Slovak Presidency July 2018 – June 2019
In October 2018, Hungarian President Janos Ader expressed his “satisfaction” with the EU leaders having adopted the same views on migration as the V4 and adhering to the V4’s advocacy for the protection of external borders.2837“Áder: A V4-ek szerint tartós kihívás marad a migráció problémája,” Mandiner, 12/10/2018, https://mandiner.hu/cikk/20181012_ader_a_v4_ek_szerint_tartos_kihivas_marad_a_migracio_problemaja, retrieved on 22/09/2020 [https://web.archive.org/web/20200922162544/https://mandiner.hu/cikk/20181012_ader_a_v4_ek_szerint_tartos_kihivas_marad_a_migracio_problemaja] This coincided with Austria’s Presidency of the Council of the EU and Sebastian Kurz’s claim of a paradigm shift within the EU. In the same month, Hungary voiced that it saw border protection primarily as the responsibility of the Schengen border states and only saw fit for Frontex to engage should a state not be able to.2838“Orbán: Semmi szükség arra, hogy a Frontex védje helyettünk a határt,” Mandiner, 20/09/2018, https://mandiner.hu/cikk/20180920_semmi_szuksegunk_arra_hogy_a_frontex_vedje_helyettunk_a_hatart, retrieved on 22/09/2020 [https://web.archive.org/web/20180921140800/http://mandiner.hu/cikk/20180920_semmi_szuksegunk_arra_hogy_a_frontex_vedje_helyettunk_a_hatart] This was said in response to calls for strengthening Frontex – initiated by Austria – and accompanied by Hungarian critique of the agency.2839“Orbán: Semmi szükség arra, hogy a Frontex védje helyettünk a határt,” Mandiner, 20/09/2018, https://mandiner.hu/cikk/20180920_semmi_szuksegunk_arra_hogy_a_frontex_vedje_helyettunk_a_hatart, retrieved on 22/09/2020 [https://web.archive.org/web/20180921140800/http://mandiner.hu/cikk/20180920_semmi_szuksegunk_arra_hogy_a_frontex_vedje_helyettunk_a_hatart]
IIInvolvement with Libya
In July 2017, Hungary’s Foreign Minister Peter Szijjarto critiqued the EU’s migration policy, called for stopping NGOs in helping “smugglers,” and stated that “the EU should prevent boats carrying illegal migrants from leaving Libya’s shores or at the very least its waters.”2840“The way Brussels deals with migrant crisis is endangering the European people,” About Hungary, 18/07/2017, https://www.abouthungary.hu/news-in-brief/the-way-brussels-deals-with-migrant-crisis-is-endangering-the-european-people/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164333/https://www.abouthungary.hu/news-in-brief/the-way-brussels-deals-with-migrant-crisis-is-endangering-the-european-people/] Orbán went as far as calling for European armed forced to be employed in defense of Libya’s sea borders and that “migrants” had to be prevented from leaving Libya.2841“PM Orbán: It was a mistake to kill Gaddafi and European armed forces are needed to patrol Libya’s northern shores,” About Hungary, 07/07/2017, https://www.abouthungary.hu/news-in-brief/pm-orban-it-was-a-mistake-to-kill-gaddafi-and-european-armed-forces-are-needed-to-patrol-libyas-northern-shores/, retrieved on 22/09/2020 [https://web.archive.org/web/20190904193927/https://www.abouthungary.hu/news-in-brief/pm-orban-it-was-a-mistake-to-kill-gaddafi-and-european-armed-forces-are-needed-to-patrol-libyas-northern-shores/] To underline Hungary’s willingness to support such actions, he expressed that should the EU “decide to undertake a mission to protect Libya’s southern border or strengthen its coast guard, the government is prepared to enter into immediate talks on Hungary’s contributions to such efforts."2842“The way Brussels deals with migrant crisis is endangering the European people,” About Hungary, 18/07/2017, https://www.abouthungary.hu/news-in-brief/the-way-brussels-deals-with-migrant-crisis-is-endangering-the-european-people/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922164333/https://www.abouthungary.hu/news-in-brief/the-way-brussels-deals-with-migrant-crisis-is-endangering-the-european-people/]
In June 2018, Hungary’s conditions seemed to have been met, and the V4 allocated 35 million euros to the EUTF. This was part of the V4’s reportedly high involvement in phase 2 of the training of the Libyan coastguard.2843Interviewee I3 The 35 million euros made up the majority of the funds (35 million euros of 45 million euros in total).2844Interviewee I3 2845Interviewee I45 Earlier that year, in January 2018, the Hungarian Foreign Minister had expressed that Libya’s borders were key to safeguarding Europe’s security and stemming the “migration wave facing Europe.”2846“Hungary’s FM: Until there is unity and stability in Libya, Europe’s security is at serious risk,” About Hungary, 23/01/2018, http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160634/http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/] He moreover acknowledged that the “government there only ha[d] control over a small part of the country.”2847“Hungary’s FM: Until there is unity and stability in Libya, Europe’s security is at serious risk,” About Hungary, 23/01/2018, http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922160634/http://abouthungary.hu/news-in-brief/hungarys-fm-until-there-is-unity-and-stability-in-libya-europes-security-is-at-serious-risk/]
In January 2019, the Czech Prime Minister Babis fully backed Fayez Al-Sarraj at a meeting in Tripoli. Among the discussion topics were a “possible cooperation of security and spy services… need[ed] to better guard [Libya’s] borders.”2848“The Latest: Czech, Libyan leaders pledge cooperation,” The Associated Press, 30/01/2019, https://apnews.com/2cc5aa766a8e4f8ca616da121f9d086f, retrieved on 04/02/2019 [https://web.archive.org/web/20190204130754/https://apnews.com/2cc5aa766a8e4f8ca616da121f9d086f] The government had already contributed 8.75 million euros of the 35 million euros paid into the EUTF by the V4.2849“The Latest: Czech, Libyan leaders pledge cooperation,” The Associated Press, 30/01/2019, https://apnews.com/2cc5aa766a8e4f8ca616da121f9d086f, retrieved on 04/02/2019 [https://web.archive.org/web/20190204130754/https://apnews.com/2cc5aa766a8e4f8ca616da121f9d086f]
IIICriminalization of NGOs
As previously described, the V4 promoted the criminalization of NGOs and called for an EU code of conduct for NGOs operating in the Mediterranean. In April 2017, Hungary’s international spokesperson Zoltán Kovács alleged “active collusion” between “the Soros-funded NGOs” and “human traffickers” and described migration as an “invasion”.2850KOVACS, Z., “The troubling alliance between NGOs and human traffickers off Europe’s southern border,” About Hungary, 29/04/2017, https://www.abouthungary.hu/blog/the-troubling-alliance-between-ngos-and-human-traffickers-at-europes-southern-border/, retrieved on 22/09/2020 [https://web.archive.org/web/20200922165001/https://www.abouthungary.hu/blog/the-troubling-alliance-between-ngos-and-human-traffickers-at-europes-southern-border/]
DKey individuals
Suspects
-
Beata Szydlo>
2015–2017
Visegrad GroupPrime Minister of Poland
-
Mariusz Błaszczak>
2015–2018
Interior Minister
-
Victor Orbán>
2010–Present
Prime Minister of Hungary
-
Andrej Babis>
2017–2021
Visegrad GroupPrime Minister, Czech Republic
Involved
-
Csaba Hende>
2010–09/2015
Visegrad GroupDefence Minister
-
Gyorgy Bakondi>
05/2015 – end date unclear
Visegrad GroupAdvisor to Interior Minister
-
Jacek Czaputowicz>
01/2018–2020
Visegrad GroupForeign Minister of Poland
-
Jan Hamáček>
06/2018–10/2018
Council of the European UnionVisegrad GroupForeign Minister
10/2018–2021
Council of the European UnionVisegrad GroupInterior Minister
-
Joachim Brudziński>
01/2018–06/2019
Visegrad GroupCouncil of the European UnionInterior Minister of Poland
-
Károly Kontrát>
06/2014–
Visegrad GroupDeputy Minister of the Interior
-
Miroslav Lajcak>
04/2012–2020
Visegrad GroupCouncil of the European UnionForeign Minister
-
Robert Fico>
04/2012–03/2018
The European CouncilVisegrad GroupPrime Minister
-
Robert Kalińak>
2006–03/2018
Council of the European UnionVisegrad GroupInterior Minister
-
Bohuslav Sobotka>
01/2014–11/2019
Visegrad GroupThe European CouncilPrime Minister of Bulgaria
-
Denisa Saková>
03/2018–2020
Council of the European UnionVisegrad GroupInterior Minister of Slovakia
-
Ewa Kopacz>
09/2014–11/2015
The European CouncilVisegrad GroupPrime Minister
-
Grzegorz Schetyna>
09/2014-10/2015
Council of the European UnionVisegrad GroupForeign Minister of Poland
-
István Simicskó>
09/2015–05/2018
Visegrad GroupDefence Minister
-
Lázsló Szabó>
10/2014–07/2017
Visegrad GroupDeputy Foreign Minister
-
Péter Szijjarto>
11/2014–
Visegrad GroupCouncil of the European UnionForeign Minister of Hungary
-
Witold Waszczykowski>
10/2015–01/2018
Visegrad GroupCouncil of the European UnionForeign Minister of Poland
-
Lubomir Zaoralek>
01/2014–12/2017
Visegrad GroupCouncil of the European UnionForeign Minister of the Czech Republic
-
Martin Stropnicky>
12/2017–05/2019
Council of the European UnionVisegrad GroupForeign Minister of the Czech Republic
-
Mateusz Morawiecki>
12/2017–2023
The European CouncilVisegrad GroupPrime Minister of Poland
-
Milan Chovanec>
2014–06/2018
Council of the European UnionVisegrad GroupInterior Minister
-
Peter Pellegrini>
03/2018–2020
The European CouncilVisegrad GroupPrime Minister of Slovakia
-
Sándor Pintér>
2010–
Visegrad GroupCouncil of the European UnionInterior Minister of Hungary
-
Teresa Piotrowska>
09/2014–10/2015
Visegrad GroupCouncil of the European UnionInterior Minister of Poland
-
Tomáš Petříček>
10/2018–2021
Visegrad GroupCouncil of the European UnionForeign Minister of the Czech Republic
-
Zsolt Semjén>
2010–
Visegrad GroupDeputy Prime Minister
- 2759The Visegrad Group, About the Visegrad Group, http://www.visegradgroup.eu/about, retrieved on 22/09/2020 [https://web.archive.org/web/20200922132845/http://www.visegradgroup.eu/about]
- 2760NIC, M., “The Visegrád Group in the EU: 2016 as a turning-point?,” 2016, European View 15, https://link.springer.com/article/10.1007/s12290-016-0422-6, p. 284.
- 2761PACHOCKA, M., “Understanding the Visegrad Group States’ Response to the Migrant and Refugee Crises 2014+ in the European Union,” 13th IMISCOE Annual Conference, 30/06/2016, https://doi.org/10.13140/RG.2.1.3952.7920, p. 27ff.
- 2762GIGITASHVILI, G. and SIDLO K., W., “Merchants of Fear. Discursive securitization of the refugee crisis in the Visegrad Group countries,” Euromesco, 07/01/2019, https://www.euromesco.net/wp-content/uploads/2018/12/Brief89_Merchants-of-fear.pdf, retrieved on 22/09/2020 [https://web.archive.org/web/20200922135020/https://www.euromesco.net/wp-content/uploads/2018/12/Brief89_Merchants-of-fear.pdf]
- 2763FINE, S., “All at sea: Europe’s crisis of solidarity on migration,” European Council on Foreign Relations, 14/10/2019, https://www.ecfr.eu/publications/summary/all_at_sea_europes_crisis_of_solidarity_on_migration, retrieved on 22/09/2020 [https://web.archive.org/web/20200909133538/https://www.ecfr.eu/publications/summary/all_at_sea_europes_crisis_of_solidarity_on_migration]
XIV
The Netherlands
AExecutive Summary
Some argue that the Netherlands as one of the most important actors in EU migration policy.2851Interviewee I22 In the first half of 2016, the Netherlands assumed the Presidency of the Council of the EU. From this position, it was able to put forward their political agenda on migration policies. First set up in a trifold collaboration with Malta and Slovakia, this agenda envisioned the curbing of migration flows and a reinforcement of Frontex. For example, in May-June 2016, Bert Koenders visited the Prime Minister of Libya, al-Sarraj; an agreement was signed between the Dutch government and the International Organization for Migration Libya (IOM Libya), providing the LYCG with equipment and technical means in the process; Measures with West African countries intended to stem migrants reaching Europe from Libya were concluded; the mandate of Operation Sophia was extended by the Council to provide capacity building and training to the Libyan coastguards. Upon the conclusion of its Council presidency, the Netherlands claimed the establishment of Frontex as the European Coast and Border Guard as one of its successes. The country also took part in the criminalization of NGOs.
BDecision-making Structures
IGeneral Overview
The Netherlands is a constitutional monarchy whose current ruling king since 2013 is Willem-Alexander of the Netherlands. However, the king does not interfere with the day-to-day political life and only appoints the members of the Cabinet. The Cabinet assumes both executive and legislative powers, as it initiates laws and policies.2852European Migration Network, The Organisation of Asylum and Migration Policies in the Netherlands, August 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091526/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf], pp. 9-10. It is composed of the Prime Minister, all of the Ministers and their respective State Secretaries. Their role is to put forward government policies and ensure their coherence.2853Government of the Netherlands, How the Dutch Cabinet works, https://www.government.nl/government/how-the-dutch-cabinet-works, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091644/https://www.government.nl/government/how-the-dutch-cabinet-works]
The Prime Minister acts as the head of the Cabinet, of the Council of Ministers (which does not include state secretaries), and of the Cabinet Committees. Cabinet Committees are special permanent committees composed of the relevant Ministers on a certain policy area.2854Government of the Netherlands, How the Dutch Cabinet works, https://www.government.nl/government/how-the-dutch-cabinet-works, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091644/https://www.government.nl/government/how-the-dutch-cabinet-works] The Advisory Committee for Migration Affairs is the Cabinet Committee in charge of migration policy. The Prime Minister holds great power in these different bodies, including setting the agenda, chairing the meetings and monitoring the implementation of policies.
Mark Rutte was the Prime Minister of the Netherlands during the entire relevant time period.
IIMinistry of Justice and Security
The Ministry of Justice and Security (equivalent to Interior Ministries of other Member States) oversaw migration policies in the Netherlands during the relevant time frame. Between 2012 and 2019, the member of the Cabinet formally in charge of Immigration and Asylum policies was the State Secretary for Justice and Security (Deputy Minister within the Ministry of Justice and Security), but no one had a specific portfolio, so the role was mainly assumed by the Minister of Security and Justice.
This ministerial position was successively occupied by Ivo Opstelten (October 2010 – March 2015); Stef Blok (March 2015 – March 2015 and January 27th 2017 – October 2017); Ard van der Steur (March 2015 – January 27th 2017); and Ferdinand Grapperhaus (October 2017 – 2022). Between 2019 and 2020, however, two State Secretaries for Justice and Security with portfolios on immigration and asylum were assigned: Mark Harbers (October– May 2019) and Ankie Broekers-Knol (June 2019 – 2022). They assumed the main responsibility for the establishment and coordination of the immigration policy of the Netherlands.2855European Migration Network, The Organisation of Asylum and Migration Policies in the Netherlands, August 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091526/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf]
IIIMinistry of Foreign Affairs
The Foreign Ministry coordinates with foreign states and international organizations, such as the EU, to advance the Dutch foreign policy.2856Government of the Netherlands, About the Ministry, https://www.government.nl/ministries/ministry-of-foreign-affairs/about-the-ministry, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091807/https://www.government.nl/ministries/ministry-of-foreign-affairs/about-the-ministry] It therefore plays a crucial role in the implementation of migration policies and the promotion of Dutch objectives in the European and international arena.
Since 2013, the successive Ministers of Foreign Affairs have been: Frans Timmermans (November 2012 – October 2014); Bert Koenders (October 2014 –October 2017); Halbe Zijlstra (October 2017 – February 2018); Sigrid Kaag (February 2018 – March 2018); Stef Blok (March 2018 – May 2021).
IVMinistry of Defence
The Ministry of Defence is, among others, in charge of border protection and therefore exerts influence on Dutch migration policy. To this effect, it manages the Royal Netherlands Marechaussee (KMar) and the Seaport Police. The former is a military body that has various missions relating to migration policies (border control, combatting “illegal” immigration, assistance to asylum seekers etc.).2857European Migration Network, The Organisation of Asylum and Migration Policies in the Netherlands, August 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091526/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf], pp. 17-18.
Since 2013, the Ministers of Defense have been: Jeanine Hennis-Plasschaert (November 2012 – October 2017); Klaas Dijkhoff (October 2017- October 2017); Ank Bijleveld (October 2017 – September 2021).
Since December 2022 Hans Leijtens, a Dutch national, is de Executive Director of Frontex.2858Frontex, Management Board appoints Hans Leijtens new Frontex executive Director, 20/12/2022, https://www.frontex.europa.eu/media-centre/news/management-board-updates/management-board-appoints-hans-leijtens-new-frontex-executive-director-dxiH6Y retrieved on 01/05/2025 [https://web.archive.org/web/20250404012416/https://www.frontex.europa.eu/media-centre/news/management-board-updates/management-board-appoints-hans-leijtens-new-frontex-executive-director-dxiH6Y]
CImplication in Criminal Policies
As a Member State, the Netherlands was formally involved in all decision-making processes and sanctioned all decisions taken within the EU regarding the policies pursuant to which the alleged crimes were committed. The participation of the Netherlands in Frontex operations had started years before these policies were designed and implemented. For example, in 2015 the Minister of Defense shared information with the Lower-House of the Parliament on its logistic and financial cooperation with Frontex.2859Tweede Kamer der Staten-Generaal, Brief van de Minister van Defensie Aan de Voorzitter van de Tweede Kamer der Staten-Generaal Den Haag, 3 februari 2015 Op verzoek van de Vaste Kamercommissie voor Defensie geef ik u hierbij, mede namens de Staatssecretaris van Veiligheid en Justitie, een beknopt overzicht van de taken en werkzaamheden van het Europese grensbewakingsagentschap Frontex, met de nadruk op de Nederlandse defensiebijdrage daaraan, 11/02/2015, https://zoek.officielebekendmakingen.nl/kst-29521-283.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092028/https://zoek.officielebekendmakingen.nl/kst-29521-283.html] The letter explained how, every year, KMar agents were deployed to support border control activities operated by Frontex. From 2010 to 2014, a Dutch Coast Guard aircraft was deployed in different Frontex operations such as operation Poseidon and operation Hermes.2860Tweede Kamer der Staten-Generaal, Brief van de Minister van Defensie Aan de Voorzitter van de Tweede Kamer der Staten-Generaal Den Haag, 3 februari 2015 Op verzoek van de Vaste Kamercommissie voor Defensie geef ik u hierbij, mede namens de Staatssecretaris van Veiligheid en Justitie, een beknopt overzicht van de taken en werkzaamheden van het Europese grensbewakingsagentschap Frontex, met de nadruk op de Nederlandse defensiebijdrage daaraan, 11/02/2015, https://zoek.officielebekendmakingen.nl/kst-29521-283.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092028/https://zoek.officielebekendmakingen.nl/kst-29521-283.html] The letter mentioned that the ministry further provided land support for migration “control” in Italy, Greece and Bulgaria.2861Tweede Kamer der Staten-Generaal, Brief van de Minister van Defensie Aan de Voorzitter van de Tweede Kamer der Staten-Generaal Den Haag, 3 februari 2015 Op verzoek van de Vaste Kamercommissie voor Defensie geef ik u hierbij, mede namens de Staatssecretaris van Veiligheid en Justitie, een beknopt overzicht van de taken en werkzaamheden van het Europese grensbewakingsagentschap Frontex, met de nadruk op de Nederlandse defensiebijdrage daaraan, 11/02/2015, https://zoek.officielebekendmakingen.nl/kst-29521-283.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092028/https://zoek.officielebekendmakingen.nl/kst-29521-283.html] KMar also supports Frontex in its trainings through the training center of the KMar and the Netherlands Defense Academy.2862Tweede Kamer der Staten-Generaal, Brief van de Minister van Defensie Aan de Voorzitter van de Tweede Kamer der Staten-Generaal Den Haag, 3 februari 2015 Op verzoek van de Vaste Kamercommissie voor Defensie geef ik u hierbij, mede namens de Staatssecretaris van Veiligheid en Justitie, een beknopt overzicht van de taken en werkzaamheden van het Europese grensbewakingsagentschap Frontex, met de nadruk op de Nederlandse defensiebijdrage daaraan, 11/02/2015, https://zoek.officielebekendmakingen.nl/kst-29521-283.html, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092028/https://zoek.officielebekendmakingen.nl/kst-29521-283.html] Some information on the Netherlands’ actual role in the design and implementation of EU policies in the Central Mediterranean is presented below.
IPresidency of the Council of the EU (January – June 2016)
The country assumed the Presidency of the European Council from January to June 2016.2863Government of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092211/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf] As such, it oversaw the decision to extend the mandate of Sophia to include the capacity building and training of the Libyan coastguards in June 2016. A year prior, it presented a trio program with Slovakia and Malta which assumed Presidency between July – December 2016 and January – June 2017 respectively.2864Government of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092211/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 7. Malta, which pursues a notoriously anti-migration agenda, had concluded a secret deal with the Libyan coastguard to intercept “migrants” before they reached Maltese waters. In its program presentation in 2015, the trio stated it would propose new measures to address “irregular migration flows” and advocate for a reinforcement of Frontex.2865Council of the European Union, Taking forward the Strategic Agenda-18 month programme of the Council (1 January 2016 -30 June 2017), 11/12/2015, https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092315/https://www.eu2017.mt/Documents/Trio%20Programme/Trio%20Programme%20_EN.pdf], p. 18. In its own Presidency program, the Netherlands put a special emphasis on the “huge influx of people” putting the European Union to the test.2866Government of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092211/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 6. It further prioritized the control of the EU’s external borders. Prior to its Presidency, it indicated that it would highlight Common Security and Defense Policy as a key element in migration policy and that it was helping to plan a “new Global Strategy on Foreign and Security Policy” which it anticipated to present at the European Council in June 2016.2867Government of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092211/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 14. The Presidency program also underlined that cooperation with third countries was essential.2868Government of the Netherlands, Programme of the Netherlands Presidency of the Council of the European Union, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092211/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_Programme.pdf], p. 14.
In May 2016, during its Presidency, Dutch Foreign Minister Bert Koenders paid a visit to Tripoli where he met with Libyan Prime Minister al-Sarraj and the Libyan coastguard. With the latter he proposed to take “joint action to tackle people smuggling and [migration management].”2869Government of the Netherlands, Libya to receive Dutch support, 09/05/2016, https://www.government.nl/latest/news/2016/05/09/libya-to-receive-dutch-support, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092432/https://www.government.nl/latest/news/2016/05/09/libya-to-receive-dutch-support] June 2016 marked the official mandate expansion of Operation Sophia to include the training of the Libyan coastguard. The Netherlands and the International Organization for Migration Libya (IOM Libya), for example, concluded an agreement “for an 18-month project aimed at enhancing the Libyan coastguard’s capacity to save lives at sea.”2870International Organization for Migration, Netherlands, IOM Build Libyan Coast Guard Capacity to Save Lives at Sea, 06/10/2016, https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092535/https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea] This project was provided with a budget of 1.5 million euros and would further provide the coastguard with equipment and technical means.2871International Organization for Migration, Netherlands, IOM Build Libyan Coast Guard Capacity to Save Lives at Sea, 06/10/2016, https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092535/https://www.iom.int/news/netherlands-iom-build-libyan-coast-guard-capacity-save-lives-sea] 2872Embassy of the Netherlands in Libya, Netherlands to support Saving Lives at Sea Operations by the Libyan Coast Guard and humanitarian repatriation, 09/06/2016, https://www.facebook.com/DutchEmbassyLibya/posts/netherlands-to-support-saving-lives-at-sea-operations-by-the-libyan-coast-guard-/1188152644562837/, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092705/https://www.facebook.com/DutchEmbassyLibya/posts/netherlands-to-support-saving-lives-at-sea-operations-by-the-libyan-coast-guard-/1188152644562837/] Upon conclusion of its Presidency, the Netherlands listed its successes as having reduced the migration influx due to “an integrated European approach,” the Turkey deal, and the establishment of a European Border Guard.2873Government of the Netherlands, Factsheet: Results of the EU Presidency, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092746/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf], p. 1. It further declared that the next front to tackle was the route from North Africa to Europe.2874Government of the Netherlands, Factsheet: Results of the EU Presidency, https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923092746/https://www.eukn.eu/fileadmin/Files/Presidencies/2016_The_Netherlands/NL_Presidency_RESULTS_factsheet.pdf], p. 1.
Rutte also took the lead in the negotiation of the highly criticized European MoU with Tunisia.2875Pijnenburg, A., “Team Europe’s Deal,” Verfassungsblog, 21/08/2023 https://verfassungsblog.de/team-europes-deal/, retrieved on 01/05/2025 2876Andrade P., A., and Frasca, E., “The Memorandum of Understanding between the EU and Tunisia: Issues of procedure and substance on the informalisation of migration cooperation,” 26/01/2024, https://eumigrationlawblog.eu/the-memorandum-of-understanding-between-the-eu-and-tunisia-issues-of-procedure-and-substance-on-the-informalisation-of-migration-cooperation/, retrieved on 01/05/2025 Under the guise of Team Europe, bypassing the European Commission and the European Parliament, they concluded a dubious agreement on migration policy without any human rights safeguards.
DKey individuals
Suspects
-
Ben Smulders>
2014–2019
European CommissionHead of Cabinet of Timmermans
-
Bert Koenders>
2014–2017
The NetherlandsMinister of Foreign Affairs
-
Frans Timmermans>
2014–2019
European CommissionVice President of the European Commission
-
Mark Rutte>
2010–2023
The NetherlandsPrime Minister
Involved
-
Ank Bijleveld>
10/2017–2021
The NetherlandsMinister of Defence
-
Ankie Broekers-Knol>
07/2019–2022
The NetherlandsState Secretary for Justice and Security
-
Aard van der Steur>
03/2015–01/2017
Council of the European UnionThe NetherlandsInterior Minister (Security and Justice)
-
Ferdinand Grapperhaus>
10/2017–2022
Council of the European UnionThe NetherlandsInterior Minister
-
Klaas Dijkhoff>
2015–2017
The NetherlandsState secretary for Security and Justice
2017
The NetherlandsDefense Minister
-
Leendert Bal>
2014–2019
European Maritime Safety Agency (EMSA)Head of Department Operations
2019–2023
European Maritime Safety Agency (EMSA)Head of department Safety, security & surveillance
-
Stef Blok>
01/2017–10/2017
The NetherlandsInterior Minister
03/2018–2021
The NetherlandsForeign Minister
-
Mark Harbers>
2017–05/2019
The NetherlandsState Secretary for Justice and Security
-
Halbe Zijlstra>
10/2017–02/2018
The NetherlandsCouncil of the European UnionForeign Minister
- 2851Interviewee I22
- 2852European Migration Network, The Organisation of Asylum and Migration Policies in the Netherlands, August 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091526/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf], pp. 9-10.
- 2853Government of the Netherlands, How the Dutch Cabinet works, https://www.government.nl/government/how-the-dutch-cabinet-works, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091644/https://www.government.nl/government/how-the-dutch-cabinet-works]
- 2854Ibid.
- 2855European Migration Network, The Organisation of Asylum and Migration Policies in the Netherlands, August 2012, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf, retrieved on 23/09/2020 [https://web.archive.org/web/20200923091526/https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/migration-policies/19a.netherlands_national_report_organisation_of_asylum_and_migration_policies_final_en_august2012.pdf]