Published: 01 December 2020 Author: Stefan Talmon
In February 2011, in the early stages of the civil war in Libya, the UN Security Council imposed an arms embargo on the country. The embargo was tightened in June 2016 with the adoption of resolution 2292 (2016). Acting under Chapter VII of the UN Charter, the Security Council authorized Member States, acting nationally or through regional organizations, to inspect on the high seas off the coast of Libya vessels bound to or from Libya which they have reasonable grounds to believe are carrying arms or related materiel to or from Libya. This authorization was subsequently renewed on an annual basis, most recently on 5 June 2020 with the adoption of resolution 2526 (2020). These resolutions however, did not stop the influx of arms into Libya. The Security Council established a Panel of Experts to examine and analyse information regarding the implementation of the arms embargo; in particular, incidents of non-compliance. In its report of November 2019, the Panel of Experts remarked that “the arms embargo was ineffective, and resulted in regular maritime and air transfers to Libya of military materiel.” The Panel identified Jordan, Turkey and the United Arab Emirates as routinely and sometimes blatantly supplying weapons to the parties to the conflict, employing little effort to disguise the source.
On 31 March 2020, the Council of the European Union (EU) established a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI) to contribute to implementing the UN arms embargo on Libya with aerial, satellite and maritime assets. The task of EUNAVFOR MED IRINI was to gather extensive and comprehensive information on the trafficking of arms and related materiel and, on the high seas off the coast of Libya, to carry out inspections of vessels bound to or from Libya where there are reasonable grounds to believe that such vessels were carrying arms or related materiel to or from Libya, directly or indirectly, in violation of the arms embargo on Libya. IRINI’s headquarters is situated in the Italian Joint Operation Headquarters in Centocelle (Rome). The operation is commanded by an Italian Rear Admiral.
On 22 April 2020, the Federal Government decided, subject to parliamentary approval, that German armed forces would participate in the EU-led operation EUNAVFOR MED IRINI. A fortnight later, Germany’s participation was approved by the Federal Parliament, and on 4 August 2020 the German Navy Frigate “Hamburg” left its home port of Wilhelmshaven to join operation IRINI. The Frigate deployed with two helicopters and a visit, board, search, and seizure (VBSS) team.
On 22 November 2020, the “Hamburg”, on orders from IRINIS’s operational command, stopped the Turkish-flagged freighter “M/V Roseline A” in the Mediterranean, southwest of the Greek Peloponnese peninsula and about 200 km north off the Libyan port of Benghazi, on suspicion that the vessel was violating the arms embargo on Libya. An armed VBSS team from the Frigate boarded the “Roseline A” by helicopter and searched the vessel until the mission was aborted. At that time, no prohibited goods had been found on board the freighter. This is where agreement between Germany and Turkey on the facts of the case ended.
According to Turkey, the German warship “Hamburg” hailed the “Roseline A” at around 12.30 p.m. local time (0930 GMT) and started to interrogate her via radio. The vessel was transporting paint, paint-related material, and humanitarian aid from Ambarli in Turkey to Misrata in Libya. The master of the “Roseline A” cooperated and shared detailed information of the vessel’s cargo and her route. The IRINI Operation Command Centre in Rome requested Turkey’s permission to search the vessel. The Turkish Government informed the Command Centre at 5.44 p.m. (1444 GMT) that permission to search was denied. EUNAVFOR MED IRINI ignored the written and oral messages sent by Turkish authorities and at 5.45 p.m. (1445 GMT) an armed team from the Frigate “Hamburg” boarded the “Roseline A” via helicopter and started to search the vessel until after midnight (2100 GMT). All crew members – including the shipmaster – were forcibly searched, gathered, and confined in a single location with the shipmaster placed under the custody of an armed serviceman, and the containers were searched by use of force. Turkey released footage showing German soldiers descending onto the ship in a manner that resembled a counterterrorism operation, and marshalling sailors with their hands on their heads on the ship’s bridge. The boarding and search were conducted without the consent of either Turkey, as the flag State, or the master of the vessel. The search was only terminated upon Turkey persistently protesting this unlawful boarding and reserving its rights for compensation. Even after the search had been ended, the German search team remained on board and only departed via helicopter the next morning at 9.38 a.m. (0638 GMT).
Germany and the EU’s account of events was rather different. Given the pattern of navigation of the “Roseline A”, EUNAVFOR MED IRINI had reasonable grounds to suspect that the vessel could be acting in violation of the UN arms embargo on Libya. The vessel had long been suspected of being used for illegal arms deliveries to the civil war-torn country. In accordance with relevant UN Security Council resolutions, Operation IRINI made good faith efforts to seek the consent of Turkey as the flag State by giving the Turkish Ministry of Foreign Affairs a four-hour notice of boarding in line with international maritime practice. Operation IRINI even agreed to extend this notice by an additional hour at the request of the Turkish Embassy in Rome. Having received no answer from Turkey within the five-hour period, the VBSS team from the Frigate “Hamburg” conducted a cooperative boarding of the vessel at 1430 GMT and inspected it in accordance with internationally agreed procedures, including NATO procedures. The crew cooperated with the boarding team and opened up all possibilities. In particular, the master agreed to boarding and steered his ship in such a way that the helicopter could hold its position above the vessel and safely set the boarding team down. Only after the German marines had boarded the vessel and started their search did Turkey react and notify IRINI that it did not consent to boarding. When the flag State made it clear that it denied permission to inspect the vessel, the search was immediately suspended. Because of severe weather conditions the VBSS team, in consultation with the master, remained on board the “Roseline A” until sunrise the next morning, when they returned by helicopter to the “Hamburg”. The Turkish freighter was able to continue on its way.
Against the background of Turkey’s view of events, it was no surprise that the Turkish Government considered the boarding a violation of international law and strongly condemned the German action. On 23 November 2020, the spokesperson of the Turkish Ministry of Foreign Affairs issued the following statement:
“We deeply regret that our vessel, which as became apparent has not violated the arms embargo, was withheld from her route for hours under severe weather conditions and that during the inspection the crew were treated as if they were criminals. We protest this unauthorized and forceful act. Rights to compensation of the relevant natural and legal persons for the damages and losses that may arise from this act naturally remain reserved.
It is essential to obtain flag state consent before interfering with commercial ships in international waters. UN Security Council resolutions on the Libyan arms embargo do not overrule this obligation.”
Later that same day, the Turkish Deputy Foreign Minister summoned the head of the EU delegation, the Italian Ambassador and the German Chargé d’Affaires (as the German Ambassador was out of Ankara) and protested the boarding and search of the “Roseline A” as part of Operation IRINI without the express consent of Turkey. A note was handed to the diplomats which recorded that, in Turkey’s view, the action was “illegal under international law” and the right to compensation was reserved.
Turkey took issue with the presentation of the facts by EUNAVFOR MED IRINI. On 24 November 2020, the Turkish Ministry of Defence issued a 19-point statement concerning the illegal boarding and searching of the “Roseline A”, accusing the Operation of a cover-up and a distortion of the facts. The statement concluded: “We expect all parties, especially our allies, to act in accordance with international law, the law of the sea and custom.” At the same time, the Turkish Minister of Defence told reporters that the “incident was against international law and practices”, adding that the Turkish Government was working on measures to protect Turkish commercial vessels.
The Turkish Foreign Ministry also put forward its position of events, writing on Twitter:
“1. EUNAVFOR_MED boarded Roseline-A unlawfully and forcefully w/out the flag state consent & ignored the written and oral messages sent by Turkish authorities before the unlawful boarding. Later on IRINI has admitted in writing that they don’t need flag state consent.
2. When Turkey protested this unlawful boarding & reserved its rights for compensation, IRINI changed its position & realized that they could not board the ship without the flag-state consent. International law and freedom of navigation should be respected, at all times.”
The Turkish Foreign Minister was even more outspoken, telling reporters:
“We will not leave anything done to us unanswered. We will take the necessary precautions. Boarding merchant ships like pirates is a violation of international law. Therefore, we will not allow such things from now on. We will take the necessary steps. We will not only respond in the field, but we will also follow the judicial and political processes.”
This position was echoed on 25 November 2020 by Turkey’s National Security Council after a meeting under the chairmanship of President Erdogan. In a statement, it said:
“We are condemning the recent unilateral interference, which completely violates international law and spirit of alliance, in the strongest way. All necessary steps will be taken against this action.”
On 27 November 2020, the Ankara Chief Public Prosecutor’s Office launched a criminal investigation into the boarding and search of the “Roseline A” which had been conducted “in a manner contrary to international regulations”.
For Germany, on the other hand, there was no question of a violation of international law. On the contrary, the Federal Government focused on Turkey’s refusal to grant permission to board and search the “Roseline A”, which it found “problematic”. On 23 November 2020 during the regular government press conference, the spokesperson for the Federal Ministry of Defence set out Germany’s view of events, saying:
“In case of suspicion, a detailed inspection of a ship can be carried out. The consent of the flag State – as it is technically called – must be obtained. The flag State is the State under whose flag the respective ship is sailing. If there is no objection within a certain period – around four hours – this is deemed tacit consent. […] The crew was completely cooperative and opened up all possibilities.
Turkey then subsequently stated that it did not consent to boarding. Boarding was then immediately suspended. As far as that is concerned, that is standard procedure. The boarding team stopped the inspection and, in the meantime, has returned to the frigate ‘Hamburg’.”
A spokesperson for the Federal Foreign Office also commented on the incident, putting it in a wider context:
“Of course, we take this incident very seriously. In connection with the Berlin Conference on Libya, we have repeatedly made it clear that we expect all participants in this conference to comply with the Libyan arms embargo which is still in force. This, of course, also applies to Turkey. All States must be judged by it, including Turkey.
[…] it is indeed a requirement under international law that the flag State consents to boarding. This consent is deemed to have been given after four hours. In the present case, consent was withdrawn by Turkey. Therefore, in terms of procedure, everything was going correctly. […]
We are concerned because there are incidents of this kind at all, where various countries are suspected of smuggling weapons into Libya.”
The next day, the Federal Minister of Defence, Annegret Kramp-Karrenbauer, rejected the Turkish accusations against the German soldiers as unjustified. She said, “They did what is asked of them in the framework of the European IRINI mandate.”
The incident raises the question of whether the boarding and search of the vessel could have been carried out against the will of the flag State. Turkey clearly thinks it could not. Germany also seems to take the same position, immediately suspending the search when – according to its view of events – the presumed consent was expressly “withdrawn”. On 17 June 2020, the Federal Government was asked whether it was correct that ships on their way to or from Libya could not be searched (boarded) if a flag State objected, so that the ship concerned could only be monitored. The Minister of State for Europe at the Federal Foreign Office, Michael Roth, replied:
“Under the Security Council resolution [2292 (2016)] Operation IRINI is prohibited from searching ships against the will of the flag State.”
Both Turkey and Germany based their argument on Security Council resolution 2292 (2016), which provides in the relevant parts:
“3. Decides, with a view to addressing the threat posed by unsecured arms and ammunitions in Libya and their proliferation, to authorize, in these exceptional and specific circumstances for a period of 12 months from the date of this resolution Member States, acting nationally or through regional organizations, with appropriate consultations with the GNA, in order to ensure strict implementation of the arms embargo on Libya, to inspect, without undue delay, on the high seas off the coast of Libya, vessels bound to or from Libya which they have reasonable grounds to believe are carrying arms or related materiel to or from Libya […], provided that those Member States make good-faith efforts to first obtain the consent of the vessel’s flag State prior to any inspections pursuant to this paragraph, and calls upon all flag States of above-mentioned vessels to cooperate with such inspections;
9. Affirms that the authorizations provided in this resolution apply only with respect to the smuggling of illegal arms and related materiel on the high seas off the coast of Libya and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under UNCLOS, including the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to any other situation, underscores in particular that this resolution shall not be considered as establishing customary international law;
10. Decides that when any Member State, acting nationally or through regional organizations, undertakes an inspection pursuant to paragraph 3 of this resolution, it or the regional organization through which it is acting shall submit promptly an initial written report to the Committee containing, in particular, explanation of the grounds for the inspection, the efforts made to seek the consent of the vessel’s flag State, the results of such inspection, and whether or not cooperation was provided […].”
Resolution 2292 (2016), however, also supports a different conclusion, namely that boarding and search may occur against the will of the flag State. In paragraph 3, the Security Council, acting under Chapter VII of the UN Charter, “decides […] to authorize […] Member States […] to inspect vessels”. This authorisation is phrased in general terms, independent of any requirement of consent by the flag State. Member States acting upon the authorisation are not under an obligation to first obtain the consent of the vessel’s flag State prior to any inspections but are merely obliged to “make good-faith efforts” to obtain such consent. This is confirmed by paragraph 10 of the resolution which provides that Member States undertaking an inspection on the basis of this authorisation must submit a report containing an explanation of “the efforts made to seek consent” of the flag State. Furthermore, in paragraph 3 the Security calls upon all flag States to cooperate with such inspections. It does not call upon flag States to respond to a good-faith effort to obtain consent “in a rapid and timely manner”, let alone to respond positively. Paragraph 10 of the resolution actually foresees the possibility of the flag State not responding positively to a request for consent when it obliges Member States to report on “whether or not cooperation was provided”. In this connection it is also to be recalled that on previous occasions when the Security Council used a similar wording it clearly distinguished – using different operative paragraphs – between the authorisation to inspect vessels and the request to make good-faith efforts to first seek the consent of the flag State. In addition, in resolution 2240 (2015) the Security Council requested Member States to make good-faith efforts to obtain the consent of the vessel’s flag State “prior to using the authority outlined in this paragraph”, thereby clearly distinguishing between the authorisation and the request to make good-faith efforts. The making of good-faith efforts to obtain flag Stat consent is thus a condition precedent allowing Member States to act on the existing authorisation, rather than the flag State refusing consent being a condition subsequent nullifying the thitherto existing authorisation.
There is no evidence to suggest that the Security Council merely wanted to establish an opt-out system for flag States. In such an opt-out system the consent of the flag State would be presumed only for so long as the flag State did not expressly object to the inspection of its flag vessel. In fact, such a limited authorisation would be confined to cases in which the flag State remained silent and did not respond at all to requests for consent. Such a tentative and conditional authorisation would not meet the resolution’s objective of ensuring “the strict implementation of the arms embargo on Libya”. The Security Council had initially authorised Member State to inspect vessels on the high seas in order to ensure strict implementation of the arms embargo on Libya in resolution 1973 (2011). This authorisation allowed Member States to inspect vessels also against the will of the flag State. At the end of the first phase of the Libyan civil war in March 2012, the Security Council terminated this authorisation. However, some four years later the Security Council was faced with the smuggling of illegal arms and related materiel in violation of the arms embargo on Libya and the growing threat that such arms and related materiel were being used by terrorist groups operating in Libya, including the Islamic State. In order to address “the threat posed by unsecured arms and ammunitions in Libya and their proliferation”, the Security Council in resolution 2292 (2016) once again authorised Member States to inspect vessels on the high seas off the coast of Libya. It seems rather unlikely that this authorisation was to be more limited, and thus less effective, than the initial authorisation in 2011.
The resolution also makes it clear that the authorisation in paragraph 3 departs from the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas. This customary international law principle means that any inspection of a foreign vessel on the high seas requires the express prior consent of the flag State, save in exceptional cases expressly provided for in international treaties or a UN Security Council resolution. In paragraph 9 of the resolution, the Security Council affirms that the authorisation in paragraph 3 “shall not affect […] the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to any other situation”, thereby implying that the authorisation actually affects the principle “with respect to the smuggling of illegal arms and related materiel on the high seas off the coast of Libya”. If the authorisation in resolution 2292 (2016) did not constitute an exception to the general principle, there would also be no need to expressly underscore that “this resolution shall not be considered as establishing [a different] customary international law.” The Security Council was very careful not to set a precedent for other situations; however, that does not mean that in the present situation it did not want to authorise Member States to inspect vessels without flag State consent. This is confirmed by the statement of the French representative in the Security Council made upon the adoption of resolution 2292 (2016):
“The resolution makes it possible to effectively carry out, on the high seas off the Libyan coast, inspections of vessels suspected of being engaged in arms trafficking. […] The Chapter VII authorization under the resolution is carefully set out. It would apply in very specific contexts and does not call into question the law of the sea, whose guiding principle remains the consent of the flag State.”
China, which was very concerned not to call into question “the sovereignty, legitimate rights and interests of flag States”, softened its stance with regard to resolution 2292 (2016) and, unlike in case of previous similar resolutions, no longer insisted on any inspection needing “the prior consent of the flag State”, but said that the “inspection of related vessels should be undertaken only with the consent of the flag State”. Venezuela, which took the position that the inspection of ships on the high seas required flag State consent, also noted that “the practice of interdicting vessels on the high seas off the coast of Libya with a view to combating the traffic in arms and related materiel should not be extrapolated to other possible cases.”
Resolution 2292 (2016) thus allows the boarding and search of vessels against the will of the flag State, provided that the three conditions set out in paragraph 3 are fulfilled. First, the Member State conducting the boarding must have “reasonable grounds to believe” that the vessel is carrying arms or related materiel to or from Libya in violation of relevant Security Council resolutions. This is a question of fact, and the Member State must provide the Security Council’s Libya Sanctions Committee with an “explanation of the grounds for the inspection”. The EU claimed that “given the pattern of navigation” of the “Roseline A”, Operation IRINI had reasonable grounds to suspect that it could be acting in violation of the UN arms embargo. After the incident, a classified EU document was leaked to the German Press Agency which showed that the freighter had long been suspected of being used for arms deliveries to Libya.
Second, the Member State or the regional organisation through which the Member State acts must have had “appropriate consultations” with the Government of National Accord (GNA), the body recognised by the United Nations as “the sole legitimate government of Libya”. Turkey accused the EU of launching Operation IRINI “without consulting […] the legitimate Government of Libya”. This conforms with the view repeatedly expressed by the GNA which was opposed to Operation IRINI because it focused on implementing the arms embargo at sea and thus favoured the other side in the civil war, which received most of its arms shipments by land and air. The GNA claimed that it “was not consulted as required under paragraph 3 of Security Council resolution 2292 (2016)” and that, therefore, it considered the Operation “illegal”. However, both Turkey and the GNA actually referred to “permission”, or “proper coordination”, rather than mere consultation. Consultation only requires the provision of information by the EU and the discussion of the operation with the GNA. The consultation requirement does not give the GNA a right of veto over the operation. There was a continuous exchange of views about Operation IRINI between the EU and GNA which seems to meet the consultation requirement. While the Security Council did not take note of “the deployment of Operation EUNAVOR MED IRINI” in its resolution 2526 (2020) on the implementation of the arms embargo, it did so in resolution 2546 (2020) with regard to migrant smuggling or human trafficking from Libya. The Security Council received briefings on Operation IRINI on 8 April and 2 June 2020. At none of the Security Council meetings on Libya did the Council or members of the Council called into question the legality of Operation IRINI. On the contrary, at the meeting on 19 May 2020 the representative of Niger commended “the European Union on having set up the European Union Naval Force Mediterranean Operation IRINI, in accordance with resolution 2292 (2016).” The UN Secretary-General also welcomed “the efforts of the new EUNAVFOR MED operation IRINI in supporting the implementation of United Nations arms embargo on Libya”, and the Panel of Experts assisting the Security Council’s Libya Sanctions Committee informed the UN Secretariat that it had extended the procedures for the exchange of information to Operation IRINI, given “the provisions set out under resolution 2292 (2016).” There is thus no question of Operation IRINI not being in accordance with resolution 2292 (2016).
The third condition for acting under the authorisation of paragraph 3 of resolution 2292 (2016) is that the Member State or the regional organisation through which the Member State acts must have made “good-faith efforts to first obtain the consent of the vessel’s flag State prior to any inspections”. The Security Council did not specify what it meant by “good-faith efforts” but, in a resolution using the same language as resolution 2292 (2016), it called upon “flag States that receive such requests [for consent] to review and respond to them in a rapid and timely manner”. The EU military operation in the Mediterranean preceding EUNAVOR MED IRINI informed the UN Secretary-General in 2016 that it considered “four hours a suitable time frame to qualify an effort to obtain consent by a flag State as being undertaken in good faith.” Subsequently, the EU informed the UN Secretariat several times that it had conducted vessel inspections “pursuant to paragraphs 3 and 4 of Security Council resolution 2292 (2016)”. With regard to inspections conducted on 14 September 2016, on 23 September 2018, 1 November 2018 and 18 January 2019, the EU military operation reported that “good-faith efforts had been made to first obtain the consent of the flag State, but no reply had been forthcoming in the specified four-hour time limit and, therefore, the inspection went ahead.” On none of these occasions was any objection raised by Members of the Security Council or the flag States concerned. The four-hour period is also in line with international instruments establishing presumed consent by the flag State to the inspection of its vessels on the high seas. For example, Article 8bis(5)(d) of the 2005 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation provides that a State Party may notify the Secretary-General of the International Maritime Organisation that the requesting Party is granted authorization to board and search ships flying its flag “if there is no response from the first Party within four hours of acknowledgment of receipt of a request to confirm nationality.” The four-hour response period can also be found in several maritime counter-narcotics agreements and ship boarding agreements under the Proliferation Security Initiative. If – as stated by Turkey – the IRINI Operation Command Centre in Rome in fact requested Turkey’s permission to search the vessel, and if there was no response by Turkey within a four-hour period, the requirement of making “good-faith efforts” to obtain the consent of the flag State would be fulfilled. The EU is under an obligation to set out the details and timing of its request to inspect the “Roseline A” in its report to the Security Council’s Libya Sanctions Committee.
It can thus be concluded that the three conditions set out in paragraph 3 of Security Council resolution 2292 (2016) were fulfilled with the result that the boarding and search of the vessel even against the expressed will of Turkey was not illegal under international law. However, that does not mean that Turkey could not claim compensation from Germany for any loss or damage that may have been sustained as a consequence of the boarding and search of the “Roseline A”. There seems to be a general principle that if the suspicions which gave rise to the boarding and search of a vessel prove to be unfounded, and the vessel has not committed any act justifying them, the boarding State shall be liable for any loss, damage or injury attributable to it. However, Germany could argue that in the present case it was far from being established that the suspicions were unfounded, as the inspection of the vessel had to be suspended before its completion because of Turkey’s objections.
With regard to the criminal investigation launched by the Ankara Chief Public Prosecutor’s Office, it is helpful to recall that the immunity of State officials is a well-established rule of customary international law; the German soldiers of the VBSS team were State officials who acted in their official capacity during the boarding of the vessel; and even if the “territorial tort” exception was a customary rule of international law, which is not generally accepted, it would in any event not apply in the present case because the German soldiers were not on Turkish “territory”. The eighteenth century legal fiction that ships may be assimilated for jurisdictional purposes with land territory of the flag State has since been universally rejected.
Category: Law of the sea