Oldal 82 [82]
ELSPETH GUILD
to die. Ihe communication calls the EU policy of this period one of deterrence as
an organisational policy. Ihe policy was to stop saving lives in the Mediterranean
and thereby ‘deter’ people from leaving Libya in unsafe conditions. By failing to
replace the Mare Nostrum programme and providing only very inadequate search
and rescue coverage, the EU policy according to the communication, EU and
Member State officials were knowingly engaging in a policy which would result
in more deaths at sea, which indeed was what happened (communication section
1.3.1). The communication cites statements of ministers, EU officials and the
Frontex Tactical Focused Assessment (January 2015) justifying their actions, in
full knowledge of the consequences in terms of risk to lives.! All ships have a duty
to carry out search and rescue operations in accordance with international law.“
But as Italy, Malta and the EU generally withdrew from state organised search
and rescue, the private sector also drew back for the responsibility on account of
the financial consequences. The communication cites public statements by the
European Community Shipowners Association and the International Chamber
of Shipping (para 88).
After the tragic week in April 2015 when 1,200 people drowned between Libya
and Italy, the EU moved to a new approach establishing a military operation in the
Southern Central Mediterranean (EUNAVFOR) with the mission of “disruption of
the business model of human smuggling and trafficking networks in the Southern
Central Mediterranean.”(Operation Sophia).!? The operation was planned to take
place in three stages — first support in the detection and monitoring of migration
networks and patrolling the high seas; secondly, boarding, searching, seizing and
diverting on the high seas vessels suspected of being used for human smuggling.
The extension of these operations to the territorial waters of Libya was foreseen,
depending on a UN Security Council Resolution authorising this (which was
not forthcoming see below) or with the consent of the Libyan authorities (also
not forthcoming). The third stage (which has never been made operational) was
intended to consist of taking all necessary measures against a vessel or related
13 Para 77 Communication: cited from Frontex 2015: Tactical Focused Assessment: “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 the facilitation networks and migrants that
can only depart from the Libyan or Egyptian coast with favourable weather conditions and
taking into account that the boat must now navigate for several days before being rescued
or intercepted.”
4 Violeta Moreno-Lax, Seeking Asylum in the Mediterranean: Against a Fragmentary Reading
of EU Member States’ Obligations Accruing at Sea, International Journal of Refugee Law
23 (2011), 174-220.
15 Council Decision (CFSP) 2015/778 of 18 May 2015, Article 2.
+80 +