After the 'migration crisis': focus on search and rescue in the Mediterranean
What is the situation for private actors trying to rescue migrants in the Mediterranean?
Once a rescue takes place, then a dirty game begins about assigning a port of safety for where the migrants will be taken. According to law, this used to be the responsibility of the Maritime Rescue Coordination Centre in Rome, which is responsible for the search and rescue area off the Libyan coast. In keeping with the Geneva Convention, the port of safety should be a place where rescued migrants are not detained and can claim asylum. This would mean a European not a Libyan port. However, since the start of 2019, rescue vessels are being ordered to take rescued migrants back to Tripoli or other Libyan ports as ports of safety. Rescue NGOs do not consider these ports safe and will not return migrants to Libya. Returning migrants to Libya contravenes human rights law. It is against the Geneva Convention and against the principle of non-refoulement.
In August 2019, I was on board the Spanish NGO rescue ship Open Arms when 150 rescued migrants were held on board for 19 days. This happened to several rescue ships last fall as governments refused to provide a port of safety on their territory. This was also the situation in which Sea-Watch found itself in June 2019. There were about 50 rescued migrants on board. They were desperate, sleeping on the open deck in bad weather conditions and with not enough food. Some were threatening suicide. After Captain Carola Rackete decided to enter Lampedusa harbour without permission the ship was confiscated as expected. This had happened to Sea-Watch twice before, and those times the ship was returned after two or three weeks. But in this case the authorities held on to the ship for much longer.
Do you think has there been a change in policy towards migrant rescues since the Democratic Party replaced the Northern League in the Italian government?
The change of government in Italy has meant that ports closed by the previous government have been reopened to NGO rescue ships and rescued migrants, but otherwise little has changed. Luciana Lamorgese, the new minister of the interior, has proposed a code of conduct for NGO vessels. For me, this is ridiculous because there is already a legal framework – international law, maritime law, the Geneva Convention, the Human Rights Convention. There is an existing legal framework to which we have always adhered.
Italy tried this before in 2017, around the same time it started training the so-called Libyan coast guard to perform rescues and return the survivors to Libya. It did this despite evidence that the Libyans were opening fire on NGO ships, shooting at migrants, and ignoring distress calls. The wording of the code of conduct presented to NGOs then, it seems to me, was intended to give the impression to the public that NGOs are breaking the law. For example, the proposed code required NGOs to stop using light signals to smugglers on shore, even though nobody had been doing this. The code also required NGOs to cease turning off the automatic identification system, though NGOs never turn it off! This proposed code of conduct was a political gesture for the consumption of the media and to influence public opinion.
The number of migrants attempting the crossing is supposedly decreasing, but we don’t know that for sure. There are many fewer rescue ships in the central Mediterranean, which means that we have much less information about the crossing than we did before. It is also the case that migrants are being returned to Libya by the Libyan coast guard. All this gives the impression that numbers have decreased, but we don’t have the full story.
Do the various NGOs involved in migrant rescues actively collaborate? What is the relationship between the NGOs and other actors operating in the area?
Yes, both in operations and advocacy as well as on the legal level. There is always a lot of crew sharing, and some financial solidarity as well. For example, Sea-Watch funded the last operation of Sea Eye, a rescue ship run by a completely different NGO, whilst Sea-Watch was impounded. The links are so close between the rescue ships that collectively we call them a ‘civil fleet’. It is important to have rescue ships out there, saving people from drowning. It is not important which organisation's name is on the ship.
Since 2016 a meeting called Shared Awareness and Deconfliction in the Mediterranean (SHADE MED) has been held twice yearly at the EU Naval Force Mediterranean (EUNAVFOR MED) HQ in Rome. This conference brings together all actors operating in the Mediterranean to deconflict and coordinate their activities.
EUNAVFOR MED warships in 2016 accepted migrants from rescue ships and transported them to European ports. Commercial vessels sometimes respond to distress calls and sometimes ignore them. And while the arrest and prosecution of captains such as Sea-Watch’s Carola make the headlines, there are other captains from commercial vessels such as fishing trawlers who are being wrongly arrested and prosecuted for assisting smuggling. There are a lot of commercial vessels avoiding search and rescue areas because they know that if they become involved in a rescue it will be time-consuming and costly. However, the majority of captains I meet are clear that it is an obligation for any seafarer to try to rescue any vessel in distress.
How has Frontex’s role in the Mediterranean region changed over the years?
Frontex’s role has become extremely important as the new EU regulations governing the agency’s activities have taken effect in December 2019. This new legal framework increases Frontex’s presence in specific border crossings, and expands its authority and role under which it operates. Frontex is and remains a border security agency. It has coupled this security mission with a search and rescue (SAR) and a humanitarian rhetoric, for instance in the context of Operation Triton and Operation Themis. Frontex claims to be bound by international maritime law and international human rights law, with the term ‘fundamental rights’ used more than 200 times in its 2019 regulations. Yet Frontex has been progressively retreating from its presumed humanitarian mission. While the reach of its missions has expanded, their availability and capacity to conduct SAR has significantly weakened.
Two other particularly problematic areas that emerged in the process of adopting these new regulations, are immigration-related decision-making and data protection. According to the earlier drafts, Frontex was to provide technical and operational assistance to Member States in the return process, including the preparation of return decisions, identification of third country nationals and other pre-return and return-related activities of the Member States. The wording ‘including the preparation of return decisions’ was eliminated from the text, and the new regulations now specify that Frontex will provide assistance at all stages of the return process without entering into the merits of return decisions. This suggests a worrying move to increased Frontex’s responsibilities and authority in making decision on the return of an individual.
The danger is that this new layer of complexity would serve to absolve individual member states of their responsibility for how immigration control is carried out in Europe. So while Frontex might be operating with the consent of member states, it is far from clear whether and to what extent these states can be held responsible for Frontex’s actions. It is also unclear if Frontex will be bound by specific criteria on monitoring and accountability, and whether the catch would be that such criteria will be set by Frontex itself. The complaint mechanisms foreseen by Article 111 of the new regulations remains weak and does not constitute an effective legal remedy.
As for data protection, Frontex is allowed to share the personal data it collects with EU member states and EU agencies. This raises a number of questions, among which is the level of consent that needs to be granted before the data is collected, and whether the information collected could also be shared with non-EU actors? These questions not only remain unanswered, but are little entertained by the relevant institutions.
To add to this complexity, and focussing on the situation in the Mediterranean, the EU has been gradually withdrawing its vessels from sea to conduct rescue, and switching to the use of aircraft and drones to assist in surveillance. These changes and additional layers serve to distance the EU and Member States from legal responsibility for the serious abuses of rights, as justification for the refusal to assume political responsibility over the lives of those concerned.
So what happens if, say, a Frontex aircraft spots a boat leaving the Libyan waters or a boat in distress in the high seas in the self-declared Libyan SAR zone and communicates this information to the relevant Maritime Rescue Coordination Centres (MRCC) – most likely the Italian and the Libyan MRCCs? Does that communication trigger responsibility for conducting a rescue operation? Would the people on board the boat fall under an EU member state’s jurisdiction? Would the Libyan Coastguard, or a private actor if the Libyan coast guard is unable or unwilling to perform the rescue, be called upon to intervene? If the interception and return of individuals from the high seas, and in violation of the non-refoulement principle, is initiated by Frontex, coordinated by a member state’s MRCC, and implemented by the Libyan coast guard, would Frontex be responsible?
Conducting operations under such a framework means SAR is not completed until people are disembarked in a ‘place of safety’. It is different from simply being out of immediate danger. Just because a person has set foot on land does not mean that they are in a place of safety, and despite both the EU and the Italian government have multiple times argued that Libya is a safe country, domestic courts and international organisations have found that it is not. In April 2020, the Libyan GNA itself declared its ports unsafe due to fighting around Tripoli, roughly at the same time when the Italian and the Maltese governments also declared their ports unsafe due to the coronavirus pandemic. Some have argued that the decision to declare EU ports unsafe due to the pandemic is an excuse by member states to, once again, evade their responsibilities under international law to respond to boats in distress at sea – which would represent a continuum of previous attempts of disengagement. For what concerns Libya, on the other hand, both before and during the pandemic, the argument that it is a safe country has always been, in light of the well-known conditions in the country, a political statement more than anything else, aimed at allowing practices of externalisation of border control to continue.
Are there any legal avenues that can be used to prevent European governments from treating Libya as a place of safety?
Italy’s domestic courts have ruled several times that Libya is not a safe country. Unfortunately, these decisions have had little or no impact on the political behaviour of the government. What the Italian government systematically contested, besides the argument that Libya was – and still is – not a safe country, was the fact that, in their view, when individuals are returned to Libya by actors that are not Italian state actors (e.g. Italian warships as in the case of Hirsi Jaama and Ors v Italy), Italy does not exercise jurisdiction on such individuals – and is therefore not responsible under international law in the case of violations of, inter alia, human rights law.
As the Global Legal Action Network (GLAN), representing an individual whose journey from Libya was intercepted by a Panamanian merchant vessel, directed to do so by the Italian MRCC on behalf of the Libyan coast guard, we have filed an individual complaint at the UN Human Rights Committee that contests these claims. We chose to bring this case to the UN Human Rights Committee, and not to the European Court of Human Rights, because this Committee is a trailblazer in establishing a new basis for its jurisdiction that can be triggered from the extraterritorial or transnational impact of a government decision. In the Committee’s 2018 General Comment 36 on the right to life, it states in paragraph 63 that:
a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.
We have structured our complaint around what we understand as a ‘third model’ of impacts. We have linked the abuses of our claimant’s rights to the EU and Italy’s decisions and their resultant use of “privatised pushbacks”: when EU coastal states engage commercial ships to return refugees and other persons in need of protection to unsafe locations. In our claimant’s case, the EUNAVFOR MED Operation Sophia - the EU’s anti-smuggling operation in the Mediterranean – passed information to the Libyan and Italian coast guards to facilitate the interception and pull back of the migrants’ boat to Libya. However, as the Libyan coast guards were unable to undertake this mission, the Italian coast guard requested that the nearby Nivin vessel intercept the boat ‘on behalf of the Libyan coast guard’, who later assumed coordination of the operation through an Italian Navy ship moored in Tripoli acting as a communications hub for the Libyan coastguard. In sum, the pushback occurred through the Nivin and in collaboration with the Libyan coast guard.
The complaint argues that Italy and the EU both had decisive influence on the Libyan coastguard because they fund, train, and equip it. Without their support the Libyan coastguard would not exist, and would not be able to execute the identification of migrant boats and their interception and return by other vessels. This decisive influence and dependency substantiates our claim of ‘impact’, which brings individuals on migrant boats under Italian jurisdiction and makes Italian state actors legally accountable for them. The involvement of third parties does not absolve Italy of its responsibility. Nor is it less responsible due to its involvement in refoulement by proxy, rather than direct refoulement. The actions of Italian state actors and EU institutions continue to have a direct and reasonably foreseeable impact on the rights of people trying to leave Libya – whether that is their right to life or their right to leave any country.
The legal premise of this argument is novel: It is the first case to test the Committee’s commitment in General Comment 36 to a more encompassing remedial approach to responsibility and jurisdiction in transnational settings. It is also the first case to challenge ‘privatised pushbacks’, the latest damaging manifestation of European migration policies. In light of recent events in Malta, this case becomes even more significant. The organic development of international human rights law in this direction, we believe, demands that our specific case and the broader implications of the violative practice behind it are given redress.
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