Op-Ed: “The establishment of a new EU Common Security and Defence Policy (CSDP) mission: Operation Irini” by Graham Butler
One Common Security and Defence Policy (CSDP) mission is put to rest, and another CSDP is born. That is, in essence, what the Council decided on 31 March 2020 through Council Decision (CFSP) 2020/472 – adopted through the written procedure given the ongoing COVID-19 situation. Informal gatherings of EU Foreign Affairs (members of the Foreign Affairs Council) and their representatives in the Political and Security Committee (PSC) have been meeting for months about what to do about Operation Sophia given the pending end of its mandate, with no agreement in sight on extending it further.
However, the impasse is now overcome, with Operation Irini (officially EUNAVFOR MED IRINI) soon to become an operational reality. Legally speaking, Operation Irini (2020-present) established, just established, is separate and distinct from Operation Sophia (2015-2020) which has been repealed. Whilst it is operationally a de facto successor, it is legally not so. Operation Irini has a one-year mandate, but may be extended by future Council Decisions, which according to Article 31 TEU, are unanimous.
Mandate and Tasks
Operation Irini, a military CSDP mission, has a narrow mandate with a primary task, and a number of secondary tasks. Primarily, it is to enforce a UN Security Council Resolution (UNSCR) 2292 (2016) (and other related Resolutions, namely 1970 (2011), and 2473 (2019)). Cumulatively, the Resolutions authorises the international community ‘acting nationally or through regional organizations’ (the latter being the EU), to, ‘seize and dispose (such as through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) of’ unsecured arms and ammunitions, inter alia. The EU’s Operation Irini will thus have the power to act in inspecting vessels in the Mediterranean that are suspected, upon reasonable grounds, in engaging in such activity.
Secondarily, Operation Irini will also include three additional tasks:
1) To conduct monitoring and surveillance activities and gather information on illicit exports from Libya of petroleum, including crude oil and refined petroleum products, that are in violation of other UNSCRs (Article 3 of the Council Decision);
2) To assist the Libyan Coast Guard and Navy to enforce its own tasks at sea (Article 4 of the Council Decision);
3) To contribute to the disruption of human smuggling and trafficking networks in the region, in compliance with international law (Article 5 of the Council Decision).
This will be achieved through a variety of means, but mainly the use of aerial, satellite and maritime assets. Member States will contribute by granting support in the aerial and maritime patrols, and satellite imagery can come through the European Union Satellite Centre (an EU agency established on a CFSP legal basis).
Most evidently, however, is what is not one of the objectives of the new military CSDP mission. There is no mention of the rescue of irregular migrants in the Mediterranean, notwithstanding any international law obligations.
Given its explicit tasks on the foot of the Council Decision therefore, Operation Irini (2020-present), the principal task of which is to enforce a Libyan arms embargo, is different to Operation Sophia (2015-2020), the principal task of which was to combat human smuggling and trafficking (see Butler and Ratcovich, 2016). According to the High Representative of the Union for Foreign Affairs and Security Policy, and the Vice-President of the European Commission, Mr Borrell, the tasks are now ‘the other way around’. As known however, preventing human smuggling and trafficking is not the same as a pure anti-migration effort.
Despite the aim of enforcing UNSCRs, contributing to preventing unsecured arms from reaching conflicting entities in Libya, it would be easy to mistake Operation Irini’s principal and secondary aims for something that is purely honourable. Behind this façade of enforcing an arms embargo and related activities is a much darker ambition, which is to continue to repel irregular third country nationals from reaching continental Europe.
The giveaway is fully demonstrable in two ways – politically and legally. Firstly, politically, there was an inordinate delay in agreement being reached on how the ramifications of such a mission, such as the rescue of migrants, would be dealt with. Some time had passed since Operation Sophia was operationally active. Secondly, and legally, upon a detailed examination of the establishment Council Decision, there is an obligation for mission to be ‘“reconfirmed every four months’, to ensuring that the deployment of maritime assets does not turn into a ‘pull effect on migration’ (Article 8(3 of the Council Decision). This can only be read as meaning that if Operation Irini ends up carrying out many rescues at sea, it is likely to be abandoned altogether, resulting in the mission’s early termination, and subsequent repeal.
Upskilling local law enforcement and military capacities of third states is a time-tested endeavour of the EU, as demonstrated by its extensive CSDP missions of either civilian or military nature in many third countries, principally on the African continent. Yet for Operation Irini, there will be the implicit purpose of having the Libyan Coast Guard and Navy preventing vessels from leaving Libyan shores in the first place, and moreover, when they do, using the EU’s aerial and satellite capabilities, will be requesting Libyan authorities to return such vessels (and persons on board) to Libya.
Evidence to support whether Operation Irini will be effective or not will have to be assessed in the months ahead. Unsecured arms are reaching multiple parties in the Libyan conflict, but there is anecdotal evidence that groups acquire their arms in different manners, with some by air, some by land, and some by sea. Only the latter of these will be enforced by Operation Irini, meaning that the prevention of unsecured arms will affect more groups in the Libyan conflict than others. This inequity will in turn require other means of enforcement with the assistance of the broader international community.
The EU legal order
There are two distinct positives of Operation Irini. Firstly, it is a further contribution to this elaborate idea of a European Defence Union. Whilst Operation Irini is a typical military CSDP mission (and only the third naval mission), it will in turn contribute to new initiatives. These include the Permanent Structured Cooperation (PESCO), now activated with numerous projects in the works; a future European Peace Facility (EPF), which would allow for the financing of CSDP operations; and the European Defence Fund (EDF), a vertical initiative that between the Commission and the private sector to boost the industrial basis of European defence capabilities, that is part of the new Multiannual Financial Framework (MFF) package still being negotiated.
Secondly, is the fact that Operation Irini is a CSDP mission, and thus, inside the EU legal order. As the purpose of the CFSP is increasingly becoming out-of-kilter with the rest of EU decision-making, and being more operationally useful for a narrower array of activity – such as restrictive measures (sanctions), and CSDP missions – the establishment of Operation Irini proves that the Member States have not totally lost faith in the CFSP just yet. Elsewhere in the world, such as in the Gulf region, a number of Member States are putting in place the building blocks for a ‘European led’ (note: non-EU) European Maritime Surveillance Mission in the Strait of Hormuz (EMASOH) that will engage in maritime surveillance. This military mission falls completely outside the EU legal order, and is not a CSDP mission. This is a worrying trend, given its future activities are a good match for what CSDP missions are all about.
However, as already hinted, there is also a downside to Operation Irini. Firstly, one cannot ignore the moral aspects of its existence, mandate, tasks, and purpose. By establishing Operation Irini, it is a clear expression by the EU and its Member States that ongoing conflict in Libya is not so much an issue in itself, as it is for the territorial integrity of the EU. Thus, it is evident that surveillance and enforcement of UNSCRs on arms embargoes are an indirect means of enforcing EU border control – which is not an objective which the CFSP can be utilised for.
EU efforts in attempting to secure peace in Libya cannot and will not be alone here. Enforcing an arms embargo has to have broader buy-in from the international community. For example, states that border Libya will also have to step-up efforts if the effectiveness of the desired UNSCRs is to be realised. It will be some time before maritime assets in place to patrol and enforce the objectives, but trouble on the periphery of Europe means trouble for Europe.
The President of the European Council has asked for the cooperation of the African Union and the League of Arab States. The United Nations Support Mission in Libya (UNSMIL) will have to adapt. NATO may too in the future play a role, and it is envisaged that third countries will be able to participate in Operation Irini (Article 11 of the Council Decision), subject to the conclusion of an international agreement in accordance with Article 218 TFEU.
It is still not known how many Member States will actively participate in Operation Irini, but it has been hinted that Italy, Spain, and France, for now, will be the main contributors, in terms of assets. The EU has no military capabilities of its own, and is totally dependent on the assets of its Member States to implement the mission (Note: an opt-out applies to Denmark as regards military CSDP missions).
The objective of the EU through Operation Irini are claimed to be peace in Libya, achieved in part through prevention of unsecured arms reaching the current conflict, but the EU’s other objectives are not hidden as well it might want them to be. Many will be attentively paying attention to how Operation Irini executes its tasks, in line with its stated mandate and objectives, in the months and years ahead.
Graham Butler is Associate Professor of Law at Aarhus University, Denmark, where he researches and teaches on various aspects of European Union law. He is the author of Constitutional Law of the EU’s Common Foreign and Security Policy (Oxford: Hart Publishing, 2019), and has appeared before the Court of Justice of the European Union on legal matters concerning the EU’s CSDP missions.