Following the deaths of hundreds of migrants in the Mediterranean, the EU is aiming to dismantle the networks of smugglers. Critics say it’s a rash operation that could end up involving the EU in an armed conflict.
It is early in the morning as the "Werra," a supply vessel of the German navy, sets out for a rescue mission. A wooden boat carrying hundreds of migrants is adrift in the Mediterranean, some 50 kilometers off the Libyan coast. Once the migrants are taken aboard, medical personnel aboard the Werra perform a medical screening. Translators help military police in asking the migrants for their personal details.
"Both the German navy's frigate and the supply vessel that have been dispatched to the Mediterranean have been especially equipped for search-and-rescue," says Bastian Fischborn, spokesperson for the German Armed Forces' Operations Command. "They carry more medical supplies than they usually would, as well as extra personnel, such as medical staff and translators."
The soldiers hand over blankets to the migrants, who are assigned seats on deck, waiting until the "Werra" has reached the Italian coast.
From search-and-rescue to surveillance
This kind of search-and-rescue operation has become routine for the German soldiers on board the "Werra", as well as for soldiers on other navy ships which European member states have dispatched to the Mediterranean. But since Monday this week, their aim is not purely to save lives – it is to gather information about the networks smuggling people across the Mediterranean.
Over a hundred thousand migrants have attempted the dangerous Mediterranean crossing thus far this year
"The objective of the mission in phase one is to monitor the activities of the smugglers in order to better understand how their networks are operating," an EU spokesperson not wishing to be named told DW. "As of yet, we don't have enough information on who they are."
Military operation with different phases
The death of hundreds of migrants off the coast of the Italian island of Lampedusa in April had prompted the EU to take various actions. One was to increase the budget of border protection operations in the Mediterranean. The other was to launch a military operation aiming to identify, capture and destroy vessels used by migrant smugglers.
In a first phase, which started earlier this week, this operation called "Eunavfor Med" will have the German navy's ships do reconnaissance alongside vessels, drones, and helicopters sent by other member states such as the UK and France. The mission has a budget of almost 12 million Euros for a twelve-month period.
A second phase would have the European militaries seize suspicious vessels, while moving into the territorial waters of Libya in a third phase to destroy boats. This would require a mandate by the UN Security Council –or assent from the Libyan government.
"We will have to see when the operation can move from phase one to phase two," said the EU spokesperson, stressing that before entering the next phase, there would be regular reports from the operation's headquarters and then an assessment by the governments of the member states assembled in the Council.
No legal basis for further phases
Nevertheless, it is this lack of a legal basis that has critics viewing the operation with some concern.
"I think it's a very rapidly built-up operation under the heavy pressures of reality that have been building up over the last couple of months and especially under increased pressure by Italy to find a solution to the migrant crisis," says Steven Blockmans from the Center for European Policy in Brussels.
He told DW it was problematic "that an operation is being launched without its full potential secured by a legal basis."
Opposition from Russia to UN Security Council mandate
While the EU's High Representative for Foreign Affairs, Federica Mogherini, has travelled to New York to make the case for a resolution by the United Nation's Security Council, such a resolution doesn't appear to be forthcoming. Russia, a permanent member of the Security Council wielding veto power, has voiced opposition to authorizing the destruction of vessels used by smugglers.
According to Steven Blockmans, one point Russia has made is that smugglers could not be compared to pirates.
An EU operation aiming to disrupt piracy off the coast of Africa has been operating since 2008 based on several resolutions from the UN's Security Council.
"Piracy has been a crime for hundreds of years and is prohibited by international conventions," explains Kai Ambos, a professor for international criminal law at the University of Göttingen. The same could not be said for smuggling people, he told Deutsche Welle.
Assent from Libya a weak possibility
In the absence of a mandate from the United Nations, the EU could look for to Libya for an authorization to move into its territorial waters.
That, however, is complicated by the political situation in Libya where there is no functioning central government, and two rival governments and their armed forces are vying for control over the country.
Earlier this month, UN negotiators presented a draft proposal for a unity government.
In the absence of such a unity government, the EU would have to rely on an invitation by the internationally-recognized government based in the eastern port of Tobruk.
Political scientist Blockmans says this could get the EU embroiled in a military conflict: "If the EU has to rely on the invitation of the Tobruk government for its execution of phases two and three, then it risks opening itself up to a military confrontation with the Islamist government in Tripolis," he told DW. "There is a risk that military actions could be launched against the EU."
German armed forces not necessarily part of mission's later phases
So far, within the mission's first phase of merely gathering intelligence in international waters, the German Armed Forces do not see themselves getting into dangerous situations. None of the search-and-rescue operations in which the German navy had engaged had seen an escalation of violence, says Bastian Fischborn of the Operations Command, explaining that upon boarding the vessels, military police frisked the migrants, taking away any potential weapons.
Furthermore, he says, it is not the soldiers' task to try to determine whether any of the persons taken aboard in rescue operations might be a smuggler himself.
Fischborn also points to the fact that the German navy, while participating in the EU operation's first phase, would not automatically be part of a second or third phase. While the current task of surveillance in international waters did not require authorization from the German parliament, he said, participation in the further stages of the mission would need such a mandate.
Mission may never move beyond first phase
In light of the legal complications involved, Steven Blockmans of the Centre for European Policy Studies is convinced the EU's mission will never move beyond its first phase.
For law professor Kai Ambos, that would not be a loss. "You cannot solve this problem by military means," he says. "I think you cannot destroy the smuggling networks. You must try to solve the issues in the countries of origin."