Seite 83 [83]
INTERNATIONAL CRIMINAL LAW AND EUROPE
assets in the territory of the state (i.e., Libya). Ihis permission was also not
forthcoming either from the Security Council or the Libyan authorities.
Consistent with the EU measure establishing the military Operation Sophia
aspects of which depended on a UN Security Council Resolution, the EU High
Representative for Foreign Affairs and Security Policy sought international approval
of the military venture from the UN Security Council. This was forthcoming in the
form of Security Council Resolution 2240(2015) of 9 October 2015. The resolution,
however, did not authorise the EU military to operate within the territorial waters
of Libya, only on the high seas as is foreseen by international law.’* Nonetheless,
the mandate of the military operation was not to save lives in the Mediterranean
but to pursue criminals. In the communication to the ICC, this history is briefly
covered in paragraphs 123 et seq.
The next development, directly consequent on the EU’s 1* policy of non¬
assistance was that the search and rescue gap which had been opened by intentional
EU policies, began to be filled by the non-governmental sector. This resulted in
what the communication calls the second policy. The communication calls this
second policy a move from one of omission to one of crimes committed by proxy
(para 138). The EU and Member States accepted that they were prohibited from
pushing back small boats into Libyan waters to avoid responsibility for rescuing
their passengers and taking them to a port of safety. In light of the situation
in Libya, it was clear that disembarkation carried out by EU and Member State
boats of migrants in that country would not be consistent with their obligations
in international law.’ Libya was not a place of safety." According to the
communication, the 2” policy has two prongs, on the one hand delegitimising,
criminalising and ousting NGOs from carrying out rescue in the Mediterranean
which would result in disembarkation in Italy or elsewhere on the northern coast
of the sea (paras 156 et seq). On the other hand, the EU and Member States needed
a third party that would agree to replace rescue with interception and return to
Libya. This third party, according to the communication would be the Libyan
6 Para 5: “Call upon Member States acting nationally or through regional organisations that
are engaged in the fight against migrant smuggling and human trafficking to inspect, as
permitted under international law, on the high seas off the coast of Libya, any unflagged
vessels that they have reasonable grounds to believe have been, are being, or imminently
will be used by organised criminal enterprises for migrant smuggling or human trafficking
from Libya, including inflatable boats, rafts and dinghies”.
International Maritime Organization (IMO), International Convention on Maritime Search
and Rescue, 27 April 1979, 1403 UNTS, https://www.refworld.org/docid/469224c82.html.
8 Human Rights Watch, Italy: Navy Support for Libya May Endanger Migrants, 2
August 2017, https://www.refworld.org/docid/598337b44.html; Statement of the ICC
Prosecutor to the UN Security Council, 9 May 2017, https://www.icc-cpi.int/Pages/item.
aspx?name=170509-otp-stat-lib.
+ 81 +