Post-conflict Libya has been riven by internal conflict, institutional, political and social instability as well as a grave humanitarian crisis. The achievement of stability in Libya has been of concern to the international community, in particular in light of the serious consequences of internal conflict and fragmentation on, inter alia, the fight against terrorism and the Islamic State, as well as against human trafficking and migrant smuggling across the Mediterranean Sea[1].
Historically a prominent international actor in the country, Italy has strongly supported the Government of National Accord, formed under the terms of the Libyan Political Agreement signed in Skhirat, Morocco, on 17 December 2015[2], and endorsed by the United Nations (UN) Security Council as the sole legitimate executive authority in Libya[3]. On 8 May 2017, during a briefing at the UN Security Council on the situation in Libya (7934th Meeting)[4], the Permanent Representative of Italy to the United Nations, Ambassador Sebastiano Cardi, declared:
There is a need for a sustainable political solution to the crisis in Libya, one based on the Libyan Political Agreement. That is the sole framework in which solutions to the most pressing issues can be found, and the Presidency Council and the Government of National Accord, headed by Prime Minister Serraj, are the sole legitimate executive authorities of Libya, in line with resolution 2259 (2015).
In particular with regard to the fight against human trafficking and migrant smuggling, Italy took initiative both at the European Union level and bilaterally with Libya. At the European level, Italy supported, inter alia, the strengthening of the EUNAVFOR MED operation Sophia[5]. On 8 March 2017, in answering a parliamentary question at the Camera dei Deputati (Chamber of Deputies, 755th Meeting, XVII Legislature), the Ministro degli Affari esteri e della Cooperazione internazionale (Minister of Foreign Affairs and International Cooperation), Mr. Angelino Alfano, explained:
Italy has promoted and continues to work for the transition to phase three of the EUNAVFOR MED operation Sophia, which, as is well known, provides for the entry of the vessels of the Operation into Libyan territorial waters in order to stop smugglers and their boats straight off the Libyan coast. So, this is our position. It also serves to dismantle more efficiently the business model of human trafficking networks. These tasks would be in addition to what Sophia has already been doing, namely the prevention of arms trafficking and the crucial task of training the Libyan Coast Guard so that it can itself operate within its own territorial waters as soon as possible.
Mr. Alfano stressed the importance of certain legal requirements for the development of the operation advocated by Italy:
It does not depend only on us; that is to say, we need the consent of the Libyan institutions and we need, this is essential, a vote by the United Nations Security Council.
At the bilateral level with Libya, a memorandum of understanding (MoU) was signed on 2 February 2017 between the Presidente del Consiglio dei Ministri (President of the Council of Ministers), Mr. Paolo Gentiloni and the Libyan Prime Minister Fayez al-Sarraj[6]. As explained by the Ministro dell’Interno (Minister of Internal Affairs), Mr. Marco Minniti, on 5 July 2017 before the Senato della Repubblica (Senate of the Republic, 852th Meeting, XVII Legislature), the MoU was based on three cornerstones:
Its first cornerstone, the control of Libyan territorial waters, is dependent upon the strengthening, the training and the enhanced capacity for action of the [Libyan] Coast Guard.
The Minister then outlined the second key element of the MoU:
Since the goal is to have the Coast Guard control the [migratory] flows leaving from the northern coast of Libya and return them back to Libya, it is paramount not to open new reception centers, since there are so many in Libya, but to guarantee the respect of human rights.
Finally, Mr. Minniti laid out the third element, the control of the southern border of Libya:
The Sub-Saharan border is a fundamental element for the control of human trafficking as well as for anti-terrorism activities. […] In the past weeks, the main tribes, the so-called guardians of the desert – the Tebus, the Tuaregs, the Suleimans – who were at war against each other, came to Rome and signed a peace agreement before the Italian Government. […] Those tribes may constitute, in the future, the backbone of a modern Libyan border guard protecting the southern borders of Libya, together with two key countries with which we have concluded a cooperation agreement, i.e. Niger and Chad.
On 23 July 2017, the Libyan Prime Minister Al-Sarraj sent a letter to Italy requesting technical assistance for the Libyan Coast Guard in the Libyan territorial waters, within the framework of the MoU. The details of the request were reported on 1 August 2017 before the Commissioni Riunite – Affari esteri e comunitari (III) e Difesa (IV) della Camera dei Deputati; Affari esteri, Emigrazione (3a) e Difesa (4a) del Senato della Repubblica (Joint Commissions – Foreign and European Affairs (III) and Defense (IV) of the Chamber of Deputies; Foreign Affairs, Emigration (3rd) and Defense (4th) of the Senate of the Republic, 28th Meeting, XVII Legislature) by Mr. Alfano as well as the Ministro della Difesa (Minister of Defense), Ms. Roberta Pinotti. Mr. Alfano explained:
The Libyan President has called on the Italian Government to send naval support that is technically suited to provide all the necessary assistance in fighting human traffickers and illegal immigration, thus providing the necessary assistance to the Libyan vessels that are operating in these very areas. The assistance we are asked to provide, therefore, concerns the activities of the Libyan Coast Guard.
He continued:
I would like to reiterate and underline that this is the first time that we have received such a request and that an action such as the one that is envisaged would have been impossible without a specific request from the Libyan side, and indeed has never been carried out in the past.
This request for assistance sparked controversy in Libya. In particular, General Khalifa Haftar, arguably the most powerful opponent of Al-Sarraj’s leadership in Libya, spoke of interference in Libya’s sovereignty and hinted at the fact that Italy might be using the pretext of combatting illegal immigration to intervene and change the balance of power in the country[7]. Ms. Pinotti, without referring directly to such controversies, addressed the issue of potential interference with state sovereignty:
In order to carry out this activity, the Libyan authorities asked us to operate in their territorial waters and ports as well. This will entail the deployment of our vessels to carry out the abovementioned support functions, in particular in the port of Tripoli and in the area east and west of Tripoli. All activities will be carried out on the basis of the needs expressed by the Libyan authorities, and therefore in close coordination with them. There is no issue of interference with, or prejudice to, the Libyan sovereignty, not least because our objective is, if anything, to strengthen that sovereignty by providing support for all the activities that are typical of fully sovereign States.
Ms. Pinotti added with regard to the rules of engagement applicable to the mission:
International law explicitly allows for extended self-defense, which requires in any event at all times a graduated, limited and proportionate use of force. Also in this regard, the details will need to be discussed with the Libyans, in the sense that just like in Mare Sicuro[8], if it were to happen that smugglers would shoot at one of our vessels, we could take action on the basis of this rule of international law. The same must apply if Libyan vessels are put at risk.
Ms. Pinotti denied that the mission could have a “Search and Rescue” objective:
It is not our task or the task of the mission. Our task is to help the Libyans, both with regard to the rescue and with regard to the fight against smugglers as [we/they][9] are attacked.
Again on the issue of consent and state sovereignty, Mr. Alfano also intervened and concluded:
We are managing this whole matter consensually with the legitimate Libyan authorities. That is the essential point. Any action involving armaments and naval units or aircrafts, without consent, as Minister Pinotti said, would assume a different profile under international law.
On 2 August 2017, the Chamber of the Deputies and the Senate of the Republic gave their authorization to the mission, in line with Legge 21 luglio 2016, n. 145 (Law no. 145 of 2016).
[1] For a recent description of the situation in Libya, see for instance the Report of the Secretary-General on the United Nations Support Mission in Libya, UN Doc. S/2017/726 (2017).
[2] The text of the document is available here.
[3] UN Security Council Resolution 2259 (2015) of 23 December 2015, para. 3.
[5] The EUNAVFOR MED operation was first established by Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), lastly amended by Council Decision (CFSP) 2017/1385 of 25 July 2017. Its mission, as laid down in Article 1 of Decision 2015/778, is to “contribut[e] to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean […], achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers and traffickers, in accordance with applicable international law, including UNCLOS and any UN Security Council Resolution”.
[6] The full title of the MoU is Memorandum d’intesa sulla cooperazione nel campo dello sviluppo, del contrasto all’immigrazione illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica Italiana (Memorandum of Understanding on cooperation in the field of development, in the fight against illegal immigration, human trafficking, smuggling, and on the strengthening of the security of the borders between the State of Libya and the Italian Republic). The text of the MoU is available (in Italian) here.
[7] The declarations of General Haftar, and the subsequent reaction of the Libyan Presidential Council, were mentioned and discussed during the above-mentioned debate before the Joint Commissions.
[8] Mare Sicuro (Safe Seas) is an operation launched by the Italian Navy on 12 March 2015 with the task of carrying out, pursuant to national legislation and international agreements in force, maritime surveillance and safety-related activities in the central Mediterranean Sea.
[9] The Italian version reads “in quanto attaccati” and does not specify the subject of the verb. There are two possibilities: “attacked” can refer either to the Libyans or the Italians.
Ambassador Cardi, United Nations Security Council, 8 May 2017.
Minister Alfano, Chamber of Deputies, 8 March 2017.
Italy's Diplomatic and Parliamentary Practice on International Law 