The Central Mediterranean Sea is among the world‘s deadliest borders.
Deaths in this area are not accidental. They are the result of policies, actions and omissions which are designed and financed and, sometimes, carried out directly by the European Union.
In Libya, people face imprisonment, torture, exploitation and violence. Many of them decide or are forced to risk their lives crossing the Central Mediterranean Sea to seek safety in Europe.
Since November 2014, Frontex Triton and Themis operations as well as the EUNAVFOR MED military Operations, Sophia and Irini, replaced the Italian-led rescue operation, MARE NOSTRUM. MARE NOSTRUM had been launched in the aftermath of the Lampedusa shipwreck of October 2013. These new operations were not focused on sea rescues but on fighting smuggling and human trafficking.
This left a rescue gap, so since then various NGOs have established and maintained a civil presence at sea through rescue vessels, a hotline for migrant people in distress and aerial reconnaissance operations.
Since 2015, cooperation with different state actors has deteriorated dramatically.
In 2018, EU-member states facilitated the creation of the so-called Libyan Coastguard and the 200,000m2 Libyan Search and Rescue Zone was established. This allowed the delegation of border controls and push-backs to Libya. They occur with the direct support of MRCC Rome. At the same time, MRCC Rome reduced their direct responsibility for rescues to a small belt around Lampedusa. In the Maltese Search and Rescue zone, RCC Malta and the Armed Forces of Malta delay rescues or refuse to rescue while they coordinate push-backs by proxy. Air surveillance by Frontex is used to guide the so-called Libyan coastguard towards boats that will then be captured and forced back to Libya. This way, Europe, Malta and Italy delegate their duty to carry out rescue activities in international waters, externalise EU borders and facilitate the human right violations committed by Libyan authorities.
In 2020 alone, the civil fleet rescued 3,700 people who fled from Libya, taking them to a place of safety in accordance with the Geneva Convention. The hotline, Alarmphone, supported 172 boats in distress in the Central Mediterranean carrying over 10,000 people. In the course of 96 missions, Airborne operations supported 82 boats in distress, carrying a total of up to 5000 people.
Legal framework and States’ omissions
International and domestic legal frameworks include several obligations and principles which need to be fulfilled and implemented by States in any situation in which people who flee their countries are in distress at sea.
In fact, in order to prevent the violation of fundamental rights of people on the move, responses to migration by sea requires close attention to the points of crossover between asylum law, human rights law and the law of the sea.
Every shipmaster is bound by the longstanding seafarers’ obligation to render assistance to anyone who is encountered in distress at sea. Starting from this basic and traditional principle, the international law of the sea is articulated around more specific rules and regulations which are meant to engage States and to ensure that public authorities fulfill their duty to coordinate and carry out search and rescue activities.
International conventions define the meaning and scope of “search and rescue (SAR) operations”. It is well established that a SAR operation is concluded only when shipwrecked people are brought to land in a “place of safety”.
Whether or not a proposed place of disembarkation does indeed meet the criteria to be a “place of safety” must be assessed on a case-by-case basis. During the assessment, fundamental principles of asylum law, including the principle of non-refoulement, must be taken into account.
The following sections provide an overview of the main legal issues which contribute to drawing the contours of (il)legality of European States’ behaviours and policies concerning seaborne migration management. It will be carried out through the analysis of 4 main principles and obligations: (1.1) the duty to render assistance at sea, (1.2) the States’ duty to organize and coordinate SAR operations, (1.3) the definition of a place of safety and (1.4) the illegality of the cooperation among the European Union, European States and Libya.
The duty to render assistance to people and ships in distress at sea is universal and affects all types of ships, whether they are state owned, including warships, or private vessels. It has an impact on the responsibility of both State bodies and individual agents, such as shipmasters and shipping companies.
Art. 98 of the United Nations Convention on the Law of the Sea (UNCLOS) holds that “Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call”.
Shipmasters are also obliged to intervene and provide support according to Reg. 33 Chap. V International Convention for the Safety of Life at Sea (SOLAS) which states that “The master of a ship at sea which is in a position to be able to provide assistance on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so. This obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found”.
The SAR convention and different International Maritime Organisation (IMO) resolutions are also relevant as they flesh out the substance of this duty for States and for individuals. One such example is the resolution of the IMO MSC. 167(78), Guidelines on the Treatment of Persons rescued at sea or the 2004 amendments of the SAR convention in the IMO Resolution MSC. 155(78).
The duty to rescue is placed on shipmasters regardless of how they received the information about a distress situation. Equally everyone has the correspondent right to be rescued, irrespective of status, nationality or the circumstances which led to a distress situation. The only limit to this duty is the need to preserve the safety of the ship which renders assistance and the safety of its crew, but that is based solely on the professional assessment of the shipmaster.
On the other hand, not providing help to people in danger at sea constitutes a crime in many States or leads at least to a fine (e.g. art. 1113 Italian naval code, §10 (1) Sentence 1 German Ordinance about the safety of maritime navigation (Verordnung über die Sicherung der Seefahrt)).
Private actors, such as merchant vessels and civil society ships, can be involved in SAR operations. Indeed, is not uncommon not uncommon for private ships to be asked by States to intervene in a specific distress scenario. In many cases, States are not able to intervene directly or in time with their own assets, but they remain bound to the duties connected to rescue at sea. In particular, they are required to spread information about a distress to all ships in the area and coordinate those who are close to the position of the SAR event and able to intervene. For this purpose, States usually use different satellite communication instruments (Navtex, Inmarsat-C).
States’ duty to coordinate and guarantee high quality SAR services, which includes the safe disembarkation of rescued people, makes it compulsory for authorities to involve private actors. To make sure that they act in accordance with the law of the sea and with respect for the fundamental rights of shipwrecked people, States are bound to support shipmasters during SAR operations, relieve them of the responsibility for the shipwrecked people as quickly as possible (see SAR Convention, Annex, par. 3.1.9) and ensure that rescued people are brought to a safe port (see IMO Resolution MSC. 153(78), 20.05.2004).
Besides, the duty to render assistance at sea also falls on the captains of states’ owned ships (and on States themselves) as recently clarified by the Human Rights Committee of the United Nations.
UNCLOS, Art 98 §2,“coastal States shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose”.
To support shipmasters engaged in sea rescue operations, States agreed to make an exception to well-known law of the sea principles, international waters and the non-appropriation by States of these spaces, to develop search and rescue regions (SRR) and “Maritime Rescue Coordination Centres” (MRCC). As a result, SRRs include international waters where States do not exercise sovereignty but are nevertheless bound to ensure that an MRCC will provide assistance.
With the aim of preventing loss of lives at sea, specific maritime areas, an SRR, fall under the responsibility of a state-authority which has to coordinate and conduct Search and Rescue operations in that area. The functioning of MRCCs and the very existence of SRRs are anchored in an annex to the SAR convention. Each State is encouraged to declare to the IMO an SRR and a responsible MRCC, provide phone numbers and emails, which are made available on the IMO’s website, to ensure that any seafarer in distress or witness to a distress case will be able to contact the competent authority so that no one in distress at sea will be left alone and unassisted. MRCCs are reachable anytime and officers on duty must speak fluent English (SAR Convention, Annex, par. 2.3.3).
Any information about people in distress should reach by any mean possible the relevant MRCC(s). Regardless of who provides the information, those in distress, witnesses, aircrafts, or others, the MRCC(s) contacted should take and respond to the information. Also, an MRCC is bound not to discriminate and thereby to provide assistance to people in distress at sea without any consideration of the nationality, legal status or reasons for the distress. None of these circumstances affect the MRCC’s duty to coordinate the rescue (Reg. 33/V, Annex, SOLAS Convention, as amended).
Each State needs to organize its administrations in order to ensure the rescue of people in distress by, for example, establishing a clear legal framework, assigning tasks and responsibilities on specific domestic bodies, providing for operational plans in order to perform effective SAR services (SAR Convention, Annex, par. 2.1.2). In practice, this requires the authority to first asses the level of danger incurred by the people in distress and then to spread the information about the people in distress, eventually ordering private assets to intervene (SAR Convention, Annex, par. 1.3.3; art. 70 Italian naval code; par. 220.3 new Italian SAR plan). In the Central Mediterranean Sea, in the absence of any European state-led rescue program, MRCCs have largely relied on private vessels to provide prompt support to people in distress.
States’ coordination duties also require the frequent need for the collaboration between different authorities. For example, several MRCCs may be informed at the same time of the existence of a SAR event. In such cases, coordination among State authorities is necessary to allow a fast response and relieve vessels from the burden of having to communicate with a number of different MRCCs while being left without coordination of SAR operations. Coordination among states is a key aspect in the SAR Convention.
In the same spirit, if an RCC is responsible for a specific area, its duty to render assistance goes beyond the SRRs boundaries. As a matter of fact, the first RCC receiving information on a boat in distress might not be the one responsible for the area. The IMO insists in its resolutions, in its guidelines for States (see IMO Res. MSC 167(78), 20.05.2004, 6.7), and in the IAMSAR Manual (Vol. II): in this situation, an RCC shall intervene and coordinate operations at sea, unless the responsible RCC has assumed responsibility.
The new Italian SAR Plan, published in February 2021, also clearly re-affirms this principle when at par. 240 it specifies that “outside the area of national responsibility, the I.M.R.C.C. coordinates the actions in favour of ships and people in danger, in cases where it acts as the first R.C.C. informed of the event and until the competent R.C.C., or another RCC able to better assist, assumes the coordination of SAR operations”.
This principle had been confirmed by the Report of the 7.12.2018 of the Catania Court of Ministers, which states that “under the Hamburg Convention ‘SAR’, as well as the subsequent Guidelines on the treatment of persons rescued at sea, the State of ‘first contact’ with persons in distress (in this case, Italy) has the obligation to intervene and coordinate rescue operations also outside its own SAR area, and this where the national authority which would be competent according to the distribution of maritime waters (in this case, Malta) does not intervene in good time.”
Finally, this interpretation is also reflected in the decision, referenced above, of the UN Human Rights Committee which recognized the Italian responsibility over the tragic shipwreck that occurred in the Maltese SRR in 2013 and affirmed: “that in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy. This relationship comprised of factual elements – in particular, the initial contact made by the vessel in distress with the MRCC, the close proximity of ITS Libra to the vessel in distress and the ongoing involvement of the MRCC in the rescue operation and – as well as relevant legal obligations incurred by Italy under the international law of the sea, including a duty to respond in a reasonable manner to calls of distress pursuant to SOLAS Regulations and a duty to appropriately cooperate with other states undertaking rescue operations pursuant to the International Convention on Maritime Search and Rescue”.
The duty of the RCCs doesn’t end with the “rescue operation” itself. In fact, according to the annex of the SAR Convention, a rescue is defined as “an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety”. A more precise definition of a “place of safety” is anchored in the resolution MSC 167(78) of the IMO: “A place of safety (as referred to in the Annex to the 1979 SAR Convention, paragraph 1.3.2) is a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met.” The responsible RCC, but also cooperation among States, remains a key element for the determination of a place to disembark the survivors. The definition of “place of safety” for people fleeing, in this case from North African shores, cannot set aside the rules and principles of international law on asylum and the protection of fundamental rights as already mentioned above.
First of all, the principle of non-refoulement must be taken into account: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”, also known as the “Non-Refoulement Principle” (Art. 33§1 Geneva Refugee Convention; arts. 3 and 4 Protocole 4 European Convention on Human Rights (ECHR); arts. 2, 3, 18 and 19 Charter of Fundamental Rights of the EU; art. 3 UN-Convention against Torture). (European) states are bound to respect this principle when engaging in rescue operations. Sea rescue operations must be carried out in accordance with human rights principles.
Libya is under no circumstances a safe place to disembark rescued people. In addition to the violent abuses carried out by the so-called Libyan Coast Guard, rescued people are systematically brought back to detention centres where their life is threatened and their human rights are seriously violated.
This circumstance’ is not new nor is it unknown by European authorities. On the contrary, it has been extensively documented by both non-governmental and governmental organizations, journalists, researchers and through the widespread testimony of those who suffered violations of their fundamental rights in Libya and subsequently managed to reach the European Union.
Furthermore, several UN bodies have repeatedly stated that Libya is not a place of safety:
- the UNSMIL’s December 2018 Report on the human rights situation of migrants and refugees in Libya “Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya”. The report decries the degrading conditions in the detention centres of the Libyan Ministry of Interior: “Many detainees in DCIM (Directorate for Combatting Illegal Migration) centres have survived horrible abuses by traffickers and are in need of specific medical and psychological care and rehabilitation. They are systematically detained in dramatic conditions, including lack of food, heavy beatings, burning with incandescent metals, electrocution, sexual abuse of women and girls, with the aim of extorting money from their families, through a complex system of money transfer, which extends to many countries”.
- In 2020, the UNHCR released a report in which it strongly requested all States stop bringing rescued migrants to Libya, so as to respect the principle of Non-Refoulement. The report documents the harsh situation suffered by foreign citizens in Libya.
- More recently, in May 2021, the Office of the UN High Commissioner for Human Rights published a report where it is clearly underlined that “OHCHR has also previously noted the alleged complicity of some State actors, including members of Directorate for Combatting Illegal Migration (DCIM) and the LCG, in the trafficking or aggravated smuggling of migrants, raising concerns that migrants intercepted and returned to Libya by the LCG may be placed at a heightened risk of trafficking and abuses by criminal networks. […] OHCHR has called for a moratorium on all interceptions and returns to Libya. 66 In light of persistent allegations of abuse and mistreatment of migrants in the course of interceptions and upon return to Libya, an increasing number of UN entities and civil society organisations have called for Libya’s SAR zone to be reconsidered, and the LCG’s SAR responsibilities to be redefined”.
Several European and national courts also acknowledged the ban on bringing people back to Libya or helping the so-called Libyan Coast Guard to do so:
- The European Court of Human Rights on 23.02.2012, in the Hirsi Jamaa and Others case, condemned Italy for having transferred asylum seekers to Libyan patrol boats on 06.05.2009
- The Court of Assizes of Milan (decision of 10.10.2017) and the Court of Assizes of Agrigento – (decision n. 1/201843) condemned foreign citizens who violently abused migrants in Libyan detention centres.
- The Civil Court of Rome sentenced Italy in a decision of 28.11.2019 to pay damages and to grant an entry visa for access to the asylum application for 14 foreign nationals – they had been handed over by the Italian Navy to the so-called Libyan Coast Guard
- An Italian preliminary investigation judge of Agrigento decided to release the shipmaster Carola Rackete based on the submission that she could not bring people back to Libya, since it is not a safe port of disembarkation. This decision was subsequently upheld by the Italian highest court (Corte di Cassazione): the duty to rescue does not end with the onboarding of shipwrecked people, but necessarily entails their disembarkation in a safe place.
As witnessed on several occasions by NGOs, European member states do not abide by the law of the sea and human rights principles. Instead, they continue to support an illegal structure aiming at outsourcing their obligations to Libya, despite numerous reports and court decisions.
As mentioned above, in 2012, Italy was condemned by the European Court of Human Rights (ECtHR) for having transferred a group of Eritrean and Somali citizens rescued by an Italian military ship to the Libyan authorities in 2009. Returning rescued people to Libya without providing them with the opportunity to ask for asylum and putting them at risk of been killed and tortured was considered illegal under the European Convention on Human Rights (ECHR) and a form of prohibited collective expulsion, contravening the principle of non-refoulement. The Hirsi ruling confirmed that after the first rescue operations were finished, people remained on board an Italian military ship for many hours, and therefore fell under Italian jurisdiction. As a consequence of this important decision, EU States developed strategies to combat migration at sea that try to make the link between their assets’ activities and the pushed back migrants much more subtle and indirect. Nevertheless those links still exist on both a factual and juridical level.
In February 2017, Italy, with the political and financial support of EU institutions, signed a Memorandum of Understanding with Al Serraj’s government in Libya, establishing a strong cooperation between the two countries in combating illegal migration from Libya. As part of the implementation of the Memorandum, which was automatically renewed in 2019, the Italian authorities provided financial and logistic support to the so-called Libyan Coast Guard, heavily increasing their presence at sea through the provision of ships and training of personnel. This allows the so-called Libyan Coastguard to perform a very high number of interceptions of people fleeing from Libya. In fact, from 2017 to date, the Italian Ministry of Interior has brought back into operation at least six naval units belonging to the Libyan coastal authorities. For the use of these naval units, training has been carried out for the Libyan authorities using funds from the Africa Fund.
Using funds from the IBM Phase 1 programme, the delivery of 20 newly built vessels is also planned. The IBM programme supports the institutional capacity of the Libyan authorities in border control, including land borders. It provides 30 Toyota off-road vehicles for “needs related to the fight against irregular immigration” and 10 minibuses. In 2018, the decree 84/2018 authorised the transfer of other naval units with the aim of “drastically reducing the flows of origin and transit from Libya”. A total of 12 vessels are to be transferred free of charge to the Libyan government. Within the context of the Italian military operation “Nauras” an Italian military vessel is permanently docked in the harbour of Tripoli with the additional aim of supporting the Libyan rescue coordination centre (JRCC) in the management of SAR operations, de facto giving instructions to Libyan authorities and officers and providing communication tools for their tasks.
Italy is however not the only State strengthening its cooperation with Libya as a way to externalize its obligations. Malta also increased its cooperation with the Libyan authorities, creating, in 2020, two “coordination-centres”, both financed by Malta. Moreover, the European Union finances and trains the so-called Libyan Coast Guard with European funds.
Thanks to the Memorandum and to the construction of strong relations between countries, specifically focused on migration management, the Libyan authorities gained legitimacy on an international level, especially as far as the IMO is concerned. Indeed, in June 2018, Libya declared a Libyan SRR under the “responsibility” of the so-called Libyan Coast Guard to the IMO.
It is important to underline that up to now Libya has clearly shown no capacity for managing the vast area declared as its SRR either in terms of technical knowledge or equipment. Furthermore, when it comes to SAR operations involving migrants fleeing from its shores, it’s also clear that it cannot provide for any safe port.
The establishment of this SRR, though, was used by the Italian and Maltese authorities to “formally” delegate SAR operations in that area to the so-called LCG, in an attempt to avoid triggering the duty to safely disembark the fleeing migrants in their national ports from their own vessels. In practice, it is not uncommon that the Italian and Maltese authorities directly coordinate the so-called Libyan Coast Guard allowing them to perform interceptions and pullbacks, sometimes involving private vessels (e.g. Nivin, Asso Ventinove). The same approach is adopted by Frontex assets in their patrolling activity across the Mediterranean, which includes the systematic coordination of Libyan vessels, often driven to migrant boats which are then always brought back to Libya.
Nevertheless, the mere existence of a Libyan SRR, shouldn’t impact the obligations of European Member states. Libya remains an unsafe place for disembarkation and thus European member states should coordinate the rescue of any boat in distress they are informed about and, in accordance with the law, ensure disembarkation in a safe country. Right now, though, they either don’t intervene, while waiting, often in vain, for the so-called Libyan Coast Guard to do it, or they coordinate and support Libyan authorities in order for them to intervene and, finally, illegally bring people back to Libyan ports.
This is also why European Member States’ MRCCs acting “on behalf of the so-called Libyan Coast Guard”, coordinate interception in the Libyan and, sometimes, Maltese SAR zone. In general, European Coastal States only coordinate with the so-called Libyan Coastguard when it is a question of the interception of people fleeing Libya. They do so even when other vessels are in the vicinity. European Member States knowingly delegate their legal obligations to the so-called Libyan Coast Guard and thus, allow pullbacks to an unsafe country. They are even reluctant to intervene when people are in distress in their own SRR. They would rather delay assistance or coordinate a pushback with the so-called Libyan Coast Guard from their SAR zone than meet their obligations and conduct rescue operations in compliance with the law of the sea and human rights principles.
The net result is that European member states still have a responsibility to coordinate SAR operations, which do not end until there is a disembarkation in a safe country. For a start, they are often the first RCC contacted, but in any event, through the coordination of SAR operations, the financial and logistic support to the so-called Libyan Coast Guard, and the political legitimisation of the Libyan authorities, EU States’ activities facilitates the illegal interceptions carried out by the so-called Libyan coastguard. They remain responsible for the violations suffered by the people pushed or pulled back to Libya.
When coordinating rescue operations, European member States knowingly ignore human rights law, in particular the non-refoulement principle, which is applicable to anyone fleeing from Libya. A number of proceedings are currently pending in front of European and domestic courts in order to ascertain responsibility for these violations.
Cooperating with Libyan authorities and delaying or refusing to render assistance lead, jointly and severally, to obvious violations of the law of the sea and human rights law. The current behaviour of European MRCCs and the ever-closer cooperation with Libyan authorities by the European Union and European member States, with the implicit purpose of letting people be pulled back to Libya, are illegal.
 This international body recognised the responsibility of the Italian government in the “Libra” case https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26691&LangID=E for avoiding to send a military ship in the surroundings of a serious distress case which ended with the loss of 200 lives including 60 children and the consequent violation of the law of the sea and the rules of the International Covenant for Civil and Political Rights.
 For example: https://www.amnesty.eu/wp-content/uploads/2020/09/Libya-report-Between-life-and-death.pdf; https://www.hrw.org/world-report/2021/country-chapters/libya.
 https://www.asgi.it/wp-content/uploads/2017/02/ITALY-LIBYA- MEMORANDUM-02.02.2017.pdf
 https://www.infomigrants.net/en/post/26108/first-trial-in-italy-over-migrant-pushback-to-libya; https://forensic-architecture.org/investigation/nivin
 See the cases mentioned in the following reports: https://eu-libya.info; https://sea-watch.org/frontex_crimes/
 See for example the cases mentioned in the following report: www.eu-libya.info
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