Under the securitization of the Mediterranean Sea, Italy is amongst the key players contributing to the maritime strategy of the European Union’s southern borders. However, in comparison to its European neighbors, its geographical features make the Italian peninsula more exposed to the emerging threats coming from the sea. Over the past few years, in order to respond effectively to migratory pressures at the EU’s external sea borders, this greater vulnerability has been addressed by a massive deployment of military assets scouting the horizon under the aegis of various international missions.
Against this backdrop, however, the central Mediterranean route continues to represent one of the main challenges in the control of migratory flows by sea, with Libya accounting for 97% of all the arrivals registered in Italy during the first quarter of 2017. This phenomenon is strictly connected to the increase in Search and Rescue (SAR) operations taking place just outside the Libyan territorial sea. This in turn seems to be correlated by an augmented presence of maritime rescue assets, both military and civilian, patrolling the high seas beyond the Libyan territorial waters and looking for vessels in distress. A similar scenario clearly raises some issues from both an operational and legal perspective for all the actors involved in the process.
Smugglers or migrants?
This increasing trend in rescues at sea is associated with a decrease in the number of smugglers arrested along this route. This is partly due to a modus operandi that transnational criminal organizations seem to have adopted in response to the deployment of military forces closer to Libya’s coastline. The increased presence of SAR vessels performing surveillance to the north of Libyan territorial sea acted as a pull factor and encouraged smugglers to use unseaworthy wooden boats and dinghies to force migrants to navigate on their own. Under this modus operandi, smugglers can remain ashore and avoid enforcement measures other than those of Libyan security forces.
Normally, most migrants succeed in sailing across the short distance needed to reach rescue assets stationed on the high seas. Those who are unsuccessful often capsize and their journey ends tragically. In other instances, however, smugglers do not provide even the necessary fuel to reach their destination and when they are left adrift, migrants are instructed to call the Italian Maritime Rescue Co-ordination Centre via satellite phone and wait for their saviors. This reckless behavior resulted in the death of hundreds of migrants at sea while smugglers were progressively substituted by inexperienced migrants trying to steer the boats towards SAR assets. This approach ensures the impunity of transnational criminal organizations because law enforcement officers are unable to apprehend smugglers and prosecute them in Italy on grounds of aiding and abetting irregular immigration.
SAR operations in jurisdiction
Against this background, smugglers started to take advantage of SAR activities in the central Mediterranean while border police officers operating at sea struggled to extend their enforcement powers on the high seas. This challenge was particularly difficult with respect to the exercise of enforcement and adjudicative jurisdiction over SAR activities performed on the high seas through an extensive interpretation of applicable international conventions.
In some cases, Italian public prosecutors made use of jurisdictional provisions of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (SUA Convention, including the 1988 and 2005 Protocols), which state that if a crime is committed to compel a State to do any act (including SAR activities), then the jurisdiction of that State can be established (Article No. 6). Besides, the SUA Convention provides that a State can exercise jurisdiction in respect of any ship scheduled to navigate from waters beyond the outer limit of its territorial sea (Article No. 4). As a result, in some immigration events that saw migrants on the high seas heading towards Italian shores, the smugglers’ criminal conduct aimed at endangering the lives of migrants at sea was considered to be punishable also under the Italian law which ratified and implemented the SUA Convention.
Nonetheless, after several convictions in Italy of smugglers apprehended on the high seas, transnational criminal organizations operating in Libya started to exploit migrants to navigate towards rescue assets on the high seas. Hence, the establishment of jurisdiction over smugglers apprehended on the high seas, seems now outdated and does not find any practical application to the current state of play in the central Mediterranean, especially where rubber boats are left adrift and no smugglers can be found on board. Under such circumstances, border police and law enforcement officers find it very hard, if not impossible, to ascertain whether the persons conducting the boats are accomplices of the transnational organizations or forced to comply under the threat of such criminal networks.
According to Annex III of the United Nations Convention against Transnational Organised Crime (UNTOC), for the crime of smuggling, two constitutive elements must be present: (a) a direct or indirect financial gain or other material benefit (Article No. 3) and (b) the involvement of an organized criminal group (Article No. 4). Despite the definition of smuggling under Italian criminal law is slightly broader, in case of wooden boats and dinghies in distress, it is still very difficult to prove whether the persons steering the boats are involved in the criminal group or received any financial benefit at all. In light of these unresolved issues, the number of smugglers apprehended on the high seas and prosecuted in Italy decreased significantly despite the continuing increase of the figures of migrants intercepted in SAR operations on the high seas.
The ‘externalization’ of sea borders
In the midst of these operational and legal challenges, in an effort to find effective solutions to prosecute transnational criminal organizations operating in third States, the concept of an EU maritime border security strategy has evolved over the years. At the beginning, there was a relentless militarization process of the Mediterranean Sea. Next, several attempts at the Europeanization of blue borders were made. And finally, the EU resorted to the externalization of sea border management at its southern flank. At first, the migratory crisis was tackled with naval interdiction operations that sometimes violated fundamental rights. Secondly, a mechanism to share responsibility amongst Member States was devised. And eventually, when it became clear that problems in controlling migratory pressures at the sea borders remained, there was a shift of responsibility towards third countries in managing migratory flows by sea.
In fact, after several Italian and EU-led military operations in the Mediterranean Sea, in October 2016, the Regulation 1624/2016 extended the mandate of Frontex. Although this Regulation gave more powers to the Agency, the slow progress of relocation and resettlement schemes coupled with the inability to swiftly repatriate economic migrants without any bilateral readmission agreement, failed to alleviate migratory pressures on frontline Member States.
While the Agency reinforced its remit to stop irregular migrants by sharing information with EUNAVFOR-Med and Europol, as well as with other European partners in the field of coast guard functions (EMSA and EFCA), Frontex alone cannot control the migratory flows on the central Mediterranean route. Since this approach might only produce a temporary displacement of migratory flows, the EU started to reconsider the possibility of addressing sea border management through externalization policies. As a result, under EUNAVFOR-Med and Frontex, Member States engaged in capacity building exercises and training programs for the Libyan Navy and Coast Guard. Even though this agreement was the outcome of diplomatic efforts to join forces against human smuggling by sea, the instability of Libya, its regional political fragmentation and the ongoing human rights violations still cast some doubts on the progress in the implementation of this program.
Although they may sound new, border management externalization strategies towards African countries are a recurring topic in the European debate (e.g. Senegal, Mauritania, Morocco and Algeria). Specifically, on the central Mediterranean route, in 2008 the Italian government signed a bilateral treaty with the former Libyan leader Muammar Gaddafi that mitigated the impact of migratory flows but lasted as long as its dictatorship. Hence, the lack of political stability in North African countries along with the absence of reliable partners, clearly damage the credibility of governments with which the EU could negotiate long-term agreements. However, the development of a EU strategy that ultimately promotes a safer maritime environment in the central Mediterranean requires an effective management of migratory flows on this route.
Although at the international level other legislative initiatives to combat transnational criminal organizations are under scrutiny, it would still be difficult to target these criminal networks operating in Libya without the support of law enforcement authorities to cooperate with. Therefore, in the short-term, the focus should remain on reducing the death toll on the central Mediterranean route through early detection techniques. In this field, some interesting projects are underway within the framework of the European Integrated Maritime Surveillance. In fact, the lack of intelligence and information sharing with third countries in North Africa might be dealt with the full implementation of Copernicus Border Surveillance components and pre-frontier monitoring through the development of the Multipurpose Aerial Surveillance project in Frontex Joint Operation TRITON. While the former relies on a combination of satellite data and environmental measurements collected from ground-based, sea-borne or airborne monitoring systems, the latter calls on aerial assets streaming real-time video and other data from the central Mediterranean directly to the Frontex Situation Centre in Warsaw.
In this regard, Member States are already supporting inter-agency coast guard cooperation between Frontex and EMSA. However, they should further explore the potential offered by other aerial platforms such as Remotely Piloted Aircraft Systems, both for SAR and law enforcement purposes. All this information may feed the Frontex risk analysis on third countries while contributing to enrich the maritime situational awareness picture in order to respond promptly and more effectively to SAR events and cross-border crimes at the sea.