As suggested during the discussion, the answer appears to lie with the country whose flag the "rescuer" or "preventer" ship is sailing under. It seems this question was raised in some form to an EU Parliment Commission, which rendered this advice in March 2017. Here's the question from January 2017:
Between January and December 2016, a total of 173 000 irregular immigrants reached Italy by sea, more than in the whole of 2015. The EU sea rescue operation, Triton, is considered to be acting as a powerful magnet for those attempting to migrate illegally from Libya to Italy. Irregular immigrants who have come by the central Mediterranean route are for the most part economic migrants, who are not entitled to international protection. This latter category of migrants includes Nigerians, Ivorians, Senegalese, Malians, Guineans, and Gambians.And here's the answer:
In October last year 40% of all operations in the central Mediterranean to rescue irregular immigrants at sea were carried out by NGOs. Frontex experts say that NGO sea rescue operations take place quite close to the Libyan coast, thus tempting immigrants to set out on the perilous crossing. NGO personnel have also guided immigrants’ boats by means of light signals. Frontex has, in addition, put forward serious accusations to the effect that NGO personnel make it impossible to gather evidence about people smugglers and that they encourage immigrants to refuse to cooperate with Italian and EU authorities. In one case irregular immigrants were even brought directly from North Africa to Italy by a vessel owned by an NGO.
According to a recent report by the Austrian military intelligence service, the EU will face a wave of 15 million economic migrants from Africa within the next few years if irregular immigration to Europe is not brought under control. In order to stop irregular immigration, sea rescue operations by NGOs, given that they are fuelling migration, should be made punishable by law. Denying licences to NGOs which take part in operations to rescue irregular migrants at sea might be one way to penalise such organisations.
Will the Commission, in cooperation with Member States, take steps to ensure that penalties are imposed for NGO sea rescue operations to pick up irregular immigrants?
The Commission would like to refer the Honourable Member to its reply to the major interpellation on the cooperation between human traffickers and NGOs engaged in search and rescue in the Mediterranean that was debated during the plenary session on 16 March 2017.As set out here, the European Commission "is the executive of the European Union and promotes its general interest."
The duty to render assistance to persons or vessels in distress at sea is an obligation under international law(1). International law is binding on States, who are obliged to subject shipmasters of private, commercial or military vessels to the corresponding duty to render assistance. The shipmasters of vessels of non-governmental organisations (NGO) are therefore bound to respect the same obligations of international law as shipmasters of State vessels.
European Border and Coast Guard's Risk Analysis 2017 does not constitute evidence of NGOs having cooperated or colluded with criminal smuggling networks to intentionally facilitate unauthorised entry to the EU. This shall however be seen as a reminder that close coordination between all participants in the International Convention on Maritime Search and Rescue (SAR) operations in the Mediterranean is key to the effective implementation of the existing rules and to ensure the safety of all concerned, migrants and crews alike.
The Commission has not received any official information from the competent national authorities about investigations or prosecution of NGOs involved in search and rescue activities for having cooperated with criminal smuggling networks. It is for the national authorities to assess whether the conduct of any NGO or other legal or natural person that rescue people in a concrete case can be sanctioned under EU or national law as a criminal activity.
(1) This principle is enshrined in the UN Convention on the Law of the Sea (Unclos) (Art. 98) as well as the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR). In addition, the applicable legal framework includes additional treaties related to maritime traffic, salvage and International Maritime Organisation (IMO) resolutions.
The European Border and Coast Guard's Risk Analysis 2017 can be found here:
A staggering 96% of newly-arrived migrants interviewed in the Central Mediterranean region stated that they had used the services of smuggling networks to illegally enter the EU. This suggests that irregular migration via Libya is entirely dependent on the services of the smuggling networks. Therefore, any activity that would disrupt or deter these groups could significantly curb the flow of irregularSo it may not be a matter of "collusion" but it sure seems like the "do-gooders" may be a bigger part of the problem than you might have thought. And, given that perhaps only a few of the "flag states" of their ships are being impacted by the wave of migrants, it seems "State control" might be a little weak. A list of these NGO ships and their flags was in the Berube and Rawly CIMSEC post THE MED MIGRANT CRISIS AND DEFEND EUROPE.
migrants into the EU.
In 2016, the Central Mediterranean saw the highest number of migrant arrivals ever recorded from sub-Sahara, West Africa and the Horn of Africa (181 459 migrants, increase of 18% compared with 2015). This trend, which is consistent with previous year-on-year increases, shows that the Central Mediterranean has become the main route for African migrants to the EU and it is very likely to remain so for the foreseeable future.Specifically, 89% of migrants arrived from Libya, making Italy the main entrypoint to the EU. As a result, most of the EU, civilian and NGO vessels in the region focused their Search and Rescue(SAR) activities on migrant boats departing from Libya.
Important changes were observed on this migratory route in 2016. During 2015, and the first months of 2016, smuggling groups instructed migrants to make satellite phone calls to the Maritime Rescue Coordination Centre (MRCC) in Rome to initiate targeted rescues on the high seas. SAR operations were mainly undertaken by Italian law-enforcement, EUNAVFOR Med or Frontex vessels with NGO vessels involved in less than 5% of the incidents. As shown in Figure 5, more than half of all rescue operations were initiated in this manner. From June until October 2016, however, the pattern was reversed. Satellite phone calls to MRCC Rome decreased sharply to 10% and NGO rescue operations rose significantly to more than 40% of all incidents.
Since June 2016, a significant number of boats were intercepted or rescued by NGO vessels without any prior distress call and without official information as to the rescue location. NGO presence and activities close to, and occasionally within, the 12-mile Libyan territorial waters nearly doubled compared with the previous year, totalling 15 NGO assets (14 maritime and 1 aerial). In parallel, the overall number of incidents increased dramatically.
The statistical data show that the criminal networks behind illegal bordercrossings along the Central Mediterranean route continued to exploit criminal business opportunities by handling a great demand for smuggling services and thus posed formidable challenges for EU border control. Libyan-based smugglers,in particular, heavily relied on the International Convention for the Safety of Life at Sea (SOLAS), and associated SAR as well as humanitarian assistance efforts, turning it into a distinct tactical advantage. This is not a new strategy, but the scope of the problem is alarming.
In this context, it transpired that both border surveillance and SAR missions close to, or within, the 12-mile territorial waters of Libya have unintended consequences. Namely, they influence smugglers’ planning and act as a pull factor that compounds the difficulties inherent in border control and saving lives at sea. Dangerous crossings on unseaworthy and overloaded vessels were
organised with the main purpose of being detected by EUNAVFOR Med/Frontex and NGO vessels.
Apparently, all parties involved in SAR operations in the Central Mediterranean unintentionally help criminals achieve their objectives at minimum cost, strengthen their business model by increasing the chances of success. Migrants and refugees – encouraged by the stories of those who had successfully made it in the past – attempt the dangerous crossing since they are aware of and rely on humanitarian assistance to reach the EU.
UPDATE: The EU debates of 16 March 2017 can be found here:
David Coburn, author. – Mr President, I think this is a good innovation – more like Prime Minister’s Question Time in the House of Commons, the Mother of Parliaments, so perhaps the centre of the European democracy is following the Mother of Parliaments.
Cooperation between human traffickers and NGOs engaged in search and rescue in the Mediterranean.
On 15 December 2016, the Financial Times, which I am sure you all know, published several excerpts from leaked Frontex reports that suggest a high level of cooperation between smugglers and NGOs:
- ‘…criminal networks were smuggling migrants directly on an NGO vessel’;
- ‘…clear indications before departure on the precise direction to be followed in order to reach the NGO boats’
- ‘…people rescued by NGO vessels were often “not willing to cooperate with debriefing experts at all, with some claiming that they were warned not to cooperate with Italian law enforcement or Frontex”.’
This period has also witnessed a surge in NGO activity in the region and a sharp drop in rescues in response to distress signals. Frontex suggested the latter is due to ‘NGOs cooperating closer to Libyan territorial waters’ or even the lights used by rescue boats, which the agency said acted ‘as a beam for the migrants’.
Does the Commission believe that such actions constitute cooperation with the smugglers, and if not, could it define what would?
Does it believe that such actions constitute collusion, and if not would it define what would?
Does the EU provide any financial assistance to NGOs engaged in search and rescue in the Mediterranean?
Is Frontex hiding anything we should all know about, since we are paying them? I think this place should know more.
Julian King, Member of the Commission. – Mr President, I would like to thank you for the opportunity afforded by those questions to clarify one or two issues.
First, as has been reiterated in the EU action plan against migrant smuggling, the duty to render assistance to persons or vessels in distress at sea is an obligation under international law. This is a binding obligation on states, who are obliged to ask ship masters of private, commercial or military vessels to render assistance. The ship masters vessels of nongovernmental organisations are bound by the same duties as ship masters of state vessels.
Second, it does not help to make, if I may say so, general assumptions on the role of all civil society organisations. These organisations are mostly active in support of governments and international organisations. At the same time, rules must be respected, and close coordination between all involved in search and rescue operations in the Mediterranean is obviously key to ensuring the safety of all concerned, migrants and crews alike.
Coordination of the rescue efforts is ensured primarily by the state responsible for the region where an incident is taking place. Any assisting vessel, be it private owned or state controlled, must therefore follow the instructions of the responsible Maritime Rescue Coordination Centre. So to take this example, in the case of search and rescue in the central Mediterranean region, coordination must take place with the Italian authorities.
Third, when it comes to criminalisation of migrant smuggling, we need to be clear about the existing legal framework. According to existing EU legislation, facilitation of unauthorised entry is the act of intentionally assisting a person who is not a national of a Member State to enter or transit across the territory of a Member State in breach of that Member State’s immigration laws. National authorities are the competent body to judge this. They are also competent to assess whether the conduct of any NGO, or indeed other legal or natural person, rescuing people in a specific case could amount to a form of collusion or cooperation with migrant smuggling networks.
So far the Commission has not received any official information from any Member States about investigations or prosecutions of NGOs involved in search and rescue activities in the Mediterranean for having participated in migrant smuggling.
Finally I would like to emphasise that the Commission does not provide any financial assistance to NGOs engaged in search and rescue activities in the Mediterranean. EU funding through the International Security Fund can support search and rescue operations at sea which arise during maritime border surveillance operations. These are the exclusive responsibility of public authorities, hence search and rescue operations carried out by third parties, such as NGOs, are not eligible under the Internal Security Fund for EU funding.