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OCR
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 nonassistance 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 +
