Can the tactics deployed against Somali pirates really work in a desperate struggle against immigrants from north Africa to Europe, given the continent’s legal obligations to migrants and refugees?

It is estimated that some 80,000 people have attempted to cross the Mediterranean from Libya to Europe in the past year. The EU is seeking a UN mandate to carry out operations in Libyan territorial waters and ashore, to stem the flow. Until the recent sinking and loss of a reported 800 lives, the international community was primarily relying on commercial shipping to provide the first-line lifesaving capability. This has meant that vessels (including large tankers) ill-equipped to carry out this operation continue to be called on to transport hundreds of desperate people to ports of refuge in Italy at considerable cost.

In 2004 Italy entered into an agreement with Libya that allowed patrols within Libyan territorial waters. The policy adopted by Italy was to force immigrants to return if they considered the vessel to be unsafe. Migrant smuggling is defined as the movement of people across international borders for profit, and was criminalised by the UNTOC Migrant Smuggling Protocol, which provides for interdiction of vessels suspected of smuggling.

In recent years the usual process has been to bring the immigrants ashore and process them, overseen by the UNHCR. The international legal framework is further complicated by the Refugee Convention, which prohibits the return of a refugee (or asylum seeker) to a place where they will face persecution. Most of this is beyond the concern of a Master of a vessel, who under the Solas Convention has to proceed with all possible speed to render assistance to those in distress.

In response to the present problem, EU politicians appear to have reached for the Somali piracy ‘play-book’ and have been quick to draw an analogy between the problems presented by pirates hijacking vessels and the flood of immigrants. Yet if the people smugglers have already been paid by the time the refugees take to the water, then the fact that the refugees may be stopped or, as is being suggested, sent back, will have no effect on the criminal gangs. Indeed, they may seek a second payment from people who can least afford it. Politicians talk of disrupting the business model of the people smugglers, but that depends on increasing the risk.

Boats, equipment and fuel being gathered on the shore should be easy to spot, and indeed an intense and close naval blockade may be able to act as a deterrent at the key pinch points. But unlike the pirate camps on deserted beaches, most of those gathering in the vicinity of the boats will be innocent refugees. Military action will carry huge risks. There was only one reported raid ashore in Somalia with the specific aim of disrupting piratical activity, and there will be resistance to exposing EU troops to direct action from Islamic fanatics who would undoubtedly be drawn to such a prospect. It also remains to be seen whether the Libyan government would allow this. Certainly one would expect a naval force to stop the larger vessels bought for scrap but then used to carry their human cargos to Italy with no crew on board. Preventing the smaller craft, though, will prove a much harder task.

When in sight of a rescuing ship, the default position of the immigrants seems to be to sink their craft knowing that they will be rescued. Indeed existing law does not allow them to be turned back to the shore itself. The present strategy seems to be based on the idea that the refugees should be kept in Libya, but that just means that they are likely to be exposed to the horrific conditions of local detention camps. Stopping the refugee flood at source makes more sense, but that will depend on a significant investment in local education and probably refugee camps on the southern side of the Sahara with more emphasis on preventing people crossing the desert in the first place.

It took the hijacking of the Sirius Star in late 2008 to get the international community to take the fight to the pirates. The recent deaths may have stirred a similar response, but it is sobering to reflect that it took nearly five years fighting piracy to get it back to pre-2008 levels. Africans are likely to continue to want to seek a better life. Fighting Somalia piracy was said to be like stamping on a partially inflated balloon: if you squeeze one part, the problem shifts quickly somewhere else. In the meantime the commercial sector will no doubt have to continue to bear a large part of the lifesaving load. We are likely to see insurance products being developed to indemnify owners for the costs of delay over and above the running costs which are usually covered by the P&I Club, but it is safe to conclude that we will not soon see a solution that stops the migration problem.

Article by Stephen Askins published in Tanker Shipping & Trade June/July 2015 Edition.