"Penalties for NGO operations to rescue irregular immigrants at sea" An Answer from the EU Parliment and Why Some NGOs May Be a Problem

During last Sunday's Midrats Episode 397: Migrants, NGOs & the Mediterranean with Claude Berube, Chris Rawley, one topic of discussion was what law governs non-governmental organizations (NGOs) out there in the Mediterranean who are either "rescuing" various forms of migrants and delivering to an EU country or "seeking to prevent" said migrants from reaching EU shores.

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.

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?

And here's the answer:

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.

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.

As set out here, the European Commission "is the executive of the European Union and promotes its general interest."

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 irregular
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.

So 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.

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.

Call Them Mass Murderers: Criminals Who Prey on Migrants/Refugees

Reportedly, the death toll of migrants/refugees trying to cross the Mediterranean for the year 2016 was over 4000 that we know about. Here's a report on how 74 died this year allegedly due to the criminal acts of some who are indifferent to human life, from the UK Express Migrants DROWN after traffickers STEAL their boat's motor at gunpoint:

The bodies of 74 drowned African migrants have washed ashore in Libya, leading to speculation people traffickers removed the motor from their boat during the treacherous Mediterranean crossing.

It is claimed the refugees making the treacherous trip to Europe from Libya came into difficulty after human traffickers intercepted their vessel at sea and stole its motor at gunpoint, according to the Libya Observer.

However, a spokesman for Libya's Red Crescent said the circumstances of the drowning was unknown.

Let's suppose that the report of the theft of the motor is not true - even then, putting people in unsafe boats while charging them for transport to "safety" is just as criminal.

The problem needs to be solved on the shore and that means putting an end to those who trade on the hopes of these desperate peoples. The problem does not lie in the European community, but in the Third World hellholes these migrants/refugees are fleeing.

UNHCR map of Migrant Routes

UNHCR site discussing the Mediterranean situation here

U.S. Navy's Office of Naval Intelligence Worldwide Threat to Shipping (WTS) Report 9 February - 9 March 2016

From ONI:

U.S. Navy's Office of Naval Intelligence Worldwide Threat to Shipping (WTS) Report 9 February - 9 Mar 2016

For those of you interested in the smuggling of migrants, an interesting blog from a law professor at the University of Southern California, Migrants at Sea, one post of which links to this NATO news release about an expansion of it counter-migrant program in the Mediterranean/Aegean from international waters into territorial waters of NATO members Greece and Turkey:

NATO took swift decisions to deploy ships to the Aegean Sea to support our Allies Greece and Turkey, as well as the EU's border agency FRONTEX, in their efforts to tackle the migrant and refugee crisis. NATO ships are already collecting information and conducting monitoring in the Aegean Sea. Their activity will now be expanded to take place also in territorial waters.
***
the purpose of NATO's deployment is not to stop or push back migrant boats, but to help our Allies Greece and Turkey, as well as the European Union, in their efforts to tackle human trafficking and the criminal networks that are fueling this crisis.

Yes, criminals committing crimes at sea.

As the good professor at Migrants at Sea notes:

NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.

NATO video on their efforts in the Aegean:

Libya: Refugee Ship Sinks Off Tripoli - Hundreds Aboard

Reported as Witnesses: Ship with hundreds sinks off Libya:

An overcrowded ship carrying up to 600 people trying to flee Libya sank just outside the port of Tripoli, the U.N. refugee agency said Monday, citing witness accounts.

Aid officials were still trying to confirm the fate of those people after the vessel broke apart Friday in the Mediterranean Sea off the coast of Libya, UNHCR spokeswoman Laura Boldrini said.

Witnesses who left the Libyan capital on another boat shortly afterward reported seeing remnants of the sunken ship and the bodies of some passengers floating in the sea, she told The Associated Press.

Other witnesses saw passengers swimming to shore but it was unclear how many survived, according to the International Organization for Migration

Iranian Ships to Enter Mediterranean

Iranian Navy Ship Kharg (AOR-431), an oiler/ammuntion ship

For the first time since 1979, it appears that a couple of Iranian Navy ships will enter the Mediterranean via the Suez Canal (see here where it is reported they entered the Suez Canal on 22 Feb):

Two Iranian naval ships have entered Egypt's Suez Canal and are heading towards the Mediterranean, a canal official said.

"They entered the canal at 5:45am," the official told Reuters news agency on Tuesday.

The two vessels, Alvand, a patrol frigate and Kharg, a supply ship, are the first naval vessels to go through the canal since Iran's 1979 Islamic revolution, after which diplomatic ties between Egypt and Iran were strained.

Egypt's ruling military council, facing its first diplomatic challenge since taking power on February 11, approved the vessels' passage through the canal.

The canal is a vital global trading route and a major source of revenue for the Egyptian authorities.

Israel takes a "grave view" of the passage of the ships.

On Sunday, after a weekly meeting of his cabinet, Binyamin Netanyahu , Israeli prime minister denounced the ships' arrival in the region as an Iranian power play.

And last week, the prospect of the Suez crossing was described by Avigdor Lieberman, Israel's far-right foreign minister, as a "provocation" by Iran.

But an Iranian diplomat said that, "This will be a routine visit, within international law, in line with the co-operation between Iran and Syria, who have strategic ties.

"The ships will spend a few days in Syrian ports for training purposes, having already visited several countries including Oman and Saudi Arabia," the diplomat added.

Alvand, a Iranian frigate,

The prospect of these ships making it through the canal and heading for their announced destination of Syria has many people at increasing flail levels, especially the Israelis.

The ships themselves are a small frigate and INS Kharg a fleet oiler/ammuntion ship that has served as the flag ship of the Iranian Navy (see USNI Guide to Combat Fleets of the World by Eric Wertheim here).

The ships themselves pose little threat to anyone, unless, in a repeat of a famous incident in the Canal's past, they drop mines along the way, as Libya is suspected of doing in 1984. That incident, which damaged 18 or so ships was denounced at the time by Iran's Ayatollah Khomeni, though praised at lower levels in Iran (see here). Given that record and the scrutiny that will be given these ships, a mining mission seems unlikely.

No, the concern is that these vessels, both "warships," may be carrying some cargo dangerous to Israel to Israel's enemies in Syria. Presumably, the oiler, being larger may be carrying a large amount of something that would improve the military position of anti-Israel forces. Perhaps a batch of rockets? New warheads of some sort?

Unlike merchant ships, it is unlikely that the threat of force would allow these ships to be searched. Further, in this particular chess game, it seems as likely as not that there is nothing on these ships.Does it matter? The Iranian goal is to set a precedent - to allow for the free movement of its naval vessels on the high seas to a sovereign nation that is not under blockade. That sovereign nation being, of course, Syria.

There is that the magic word "blockade."

As you may recall, Israel has indicted ships attempting to carry supplies into Gaza. As noted in an earlier post (), this seems to be a legal blockade of Gaza. There is an interesting piece by a Israeli legal scholar Ruth Lapidoth, The Legal Basis of Israel's Naval Blockade of Gaza, which lays out the argument that the blockade of Gaza is perfectly legal under international law.The piece cites the San Remo Manual as setting out the appropriate rules for parties to an armed conflict:

SECTION II : METHODS OF WARFARE
Blockade
93. A blockade shall be declared and notified to all belligerents and neutral States. 94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
96. The force maintaining the blockade may be stationed at a distance determined by military requirements. 97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document. 98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked. 99. A blockade must not bar access to the ports and coasts of neutral States. 100. A blockade must be applied impartially to the vessels of all States. 101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94. 102. The declaration or establishment of a blockade is prohibited if: (a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade. 103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to: (a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross. 104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

A possible route from the north end of the Suez Canal to Syria

Professor Lapidoth finds that these rules applied to a blockade of Gaza.

Syria, on the other hand, may be a different kettle of fish. As the Professor notes in her piece, the definition of "armed conflict" that justifies a blockade does not require a formal declaration of war in these times. Certainly, Israel and Syria have not been peaceful neighbors but the imposition of a blockade on Syrian ports is, without a doubt, an act of war that may bring consequences that Israel and the rest of the world mat not be willing to pay at this time.

So, I expect that a war of words will continue and these ships will be allowed their "peaceful" transit in the Mediterranean this time. You may count on them being closely watched by every one with a stake  in this iteration of Iran's war with Israel.

Terrrorism at Sea Warning

A reliable source indicates that there is a "terrorism warning" in effect for ships in the eastern Mediterranean:

A terrorist threat is currently applying on vessels located in the eastern Mediterranean, East of longitude 033°30’E.

Ships are urged to remain alert, travel at higher speeds and avoid closing small craft.


UPDATED: Better map. Area to the right of the red line is "East of longitude 033°30’E."