Search and rescue in the Mediterranean Sea
On June 29, 2019 the Dutch-flagged ship Sea-Watch 3 forcefully entered the Italian port of Lampedusa. Its German captain Carola Rackete challenged the Minister of the Interior Matteo Salvini’s ban on NGO-operated ships from disembarking migrants on the Italian soil. After saving 53 people in distress in the Central Mediterranean Sea, the Sea-Watch 3 was forced to spend fifteen days at sea before finally disembarking the migrants. As in previous analogous cases, the Italian authorities had rejected the crew’s requests of a safe port and had urged them to bring the migrants back to Libya. Upon docking in the Italian port, captain Carola Rackete was arrested by the Italian police for having facilitated illegal immigration. Three days later the arrest was not validated by the judge Alessandra Vella, who stated that the captain was fulfilling her duty by saving the migrants. Many EU officials and leaders of other European states criticized the conduct of the Italian government in this event. However, they too are involved in controversial practices of border control that are in conflict with international human rights law and refugee law. The outsourcing of border security and the externalization of the EU’s borders have often allowed the regional block to avoid their legal responsibilities towards the migrants, effectively compromising its very founding principles.
According to the United Nation High Commission for Refugees (UNHCR, 2019), sea rescue is a both ‘long-standing humanitarian imperative’ and an international legal obligation. Offering assistance to vessels in distress is a fundamental pillar of the law of the sea. Therefore, the support provided by humanitarian organizations to migrants in the Mediterranean Sea should not be a target for legal actions by single states. In the last years, however, NGOs have increasingly encountered legal problems in Greece, Italy, and Malta. The same organizations – de facto integrated into the European Union’s apparatus of border control during the peak of the so-called migration crisis – have had their vessels confiscated and have been investigated for facilitating illegal entry of aliens into Europe. At the same time, they have increasingly been depicted as ‘smugglers’ and ‘enemies of the nation’ in the domestic political debates.
This process of criminalization of the NGOs operating in the Mediterranean Sea has recently culminated in the security-related legislative decree designed by the Italian minister Matteo Salvini and approved by the Parliament on Monday August 5, 2019. Heavily criticized by humanitarian organizations, center-left parties, and parts of the Italian Catholic Church for its inhumanity, the new law effectively criminalizes the rescue of migrants at sea. It establishes that the Minister of the Interior can limit or prohibit the entrance and the transit of boats in the territorial waters; in the case of a violation, the captain can be then arrested and charged up to one million euros for having facilitated illegal immigration, while the vessels can be confiscated and destroyed. This legislative decree is thus extremely controversial: on the one hand, it is in clear contradiction with international legal treaties that Italy has signed and is bound to respect; on the other, the criminalization of humanitarian assistance to migrants will probably not reduce the number of migrants trying to cross the Mediterranean but, more realistically, will create an empty space in which human beings can lose their lives.
The argument generally proposed in support for this kind of policies is that the presence of NGO-operated ships in the Mediterranean would encourage migrants and smugglers to attempt the crossing in the knowledge that they will be rescued. The minister Matteo Salvini and his party have often claimed that closing the Italian ports to NGOs has contributed to a decrease in the number of migrants landed on the Italian shores. Frontex, the EU’s agency for border control, effectively registered a year-on-year 83% drop in the Central Mediterranean Sea route between 2017 and 2018. However, despite the huge media resonance of high-profile cases such as that of the Sea-Watch 3 or that of Médicines Sans Frontières’ vessel Aquarius on June 2018, the arrival of migrants on Italian costs has never ceased. Smaller boats have continued to reach the Italian coasts of Sicily. The people onboard have disappeared into the Italian territory, essentially becoming ghosts without an identity. Despite this, the sharp decline registered by Frontex and the Italian authorities clearly shows that something has changed in the trafficking route that crosses the Mediterranean Sea from Libya to the southern coasts of Italy. The closure of the Italian ports – which can be better understood as a political move rather than a concrete security measure – has had limited effects on the number of migrants approaching the European continent.
The real causes of these declining numbers are to be identified in Libya and not in Europe. In the last decade, the North African country has indeed played a pivotal role in the managing of the migration flows of the Central Mediterranean Sea route. The European Union and the Italian government have financed the ‘legitimate’ government of the country to detain the migrants within its territory. Human Rights Watch, Amnesty International, and other international organizations have often reported widespread human rights violations in the Libyan detention centers, such as sexual violence, intense beating, and killings. The dire situation of migrants and asylum-seeker in the country has deteriorated further following the growing tensions in the civil war between the internationally recognized government and the rebel armed forces led by the General Khalifa Haftar. In this context, on July 3rd 2019, a migrant detention center in Tajoura was hit by an airstrikes killing 44 people and wounding 130. As the EU and the Italian government effectively support and depend on the Libyan authorities to control the migration flows, migrants are trapped in the North African country and are not recognized any form of international protection, irrespectively of their individual background. Thus, migrants become human shields used by the different factions in the conflict and their presence is used to blackmail Europe for more assistance. Differently from what Matteo Salvini stated in regard to the Sea-Watch 3 case, Libya does not qualify as a safe port in which the migrants could be safely disembarked.
Externalizing EU borders and avoiding legal obligations
Until this moment, the outsourcing of the border control has often allowed the EU to avoid the legal responsibilities that would arise according to international law. On top of that, the creation of a hostile environment for humanitarian NGOs operating in the Mediterranean Sea has created a de facto ‘dead zone’ (Cusumano, 2018) where migrants are not offered assistance or access to their basic human rights. As Human Rights Watch reports, the EU policies of border control have effectively managed to reduce the Mediterranean departures; however, ‘the chances of dying in waters off the coast of Libya significantly increased from 1 in 42 in 2017 to 1 in 18 in 2018’. An elevated percentage of ‘the tragedies [in the Mediterranean Sea] may also be seen as a result of the ongoing expansion of Europe’s migration control’ and are not imputable to bad luck or the actions of the migrants themselves (Gammeltoft-Hansen, 2008: 171).
Theoretically, the migrants would be protected by the principle of non-refoulement established in Art. 33(1) of the 1967 Refugee Convention and expanded in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as customary international law. Thus, if the migrants were to acquire the status of asylum-seekers by advancing a request to a European state, they could not be sent back to Libya as there is enough evidence to believe that they would be subjected to torture or inhuman and degrading treatment. However, this form of protection requires the asylum-seekers to be physically present within a state’s territory (‘jurisdiction grounded in territory’) or them to interact with an official of a European state (‘jurisdiction grounded in contact’) (Paz, 2016). Since the migrants on NGO-operated vessels, like the Sea-Watch 3, are in international waters and only ever interact with civilian crew members, they are effectively precluded from the possibility of becoming asylum-seekers and contacting state officials.
Despite of this, closing ports to NGOs and abandoning human beings in international waters cannot be interpreted as a legal action. The 1979 Hamburg International Convention on Maritime Search and Rescue establishes that people that are saved at sea should be brought to the closest safe port. Since neither Libya nor Tunisia qualify as such, the Italian port of Lampedusa constitutes the only natural legal alternative. Such a legal obligation – in addition to the EU Dublin Agreement – would seem to suggest that Italy is obliged to accept all migrants rescued in the Mediterranean Sea and, consequently, process their asylum request independently from other European states. The same is valid for Greece in the Aegean Sea and Spain in the Western Mediterranean Sea. However, these countries have often expressed the necessity to develop a shared relocation system within the forum of the European Union. Even though states such as Hungary and Poland strongly oppose such a reform, a fair system of relocation of migrants and international protection is the only viable option to respond to the natural phenomenon of migration.
If the EU only limits itself to practices of deterrence and to blocking migrants in unsafe areas such as Libya, it clearly shows an inherent form of hypocrisy: it predicates the centrality of human rights and the rule of law in the process of European integration, while it is ready to sacrifice them when it is dealing with migrants. Financing the Libyan government to block the migrants in North Africa and prohibiting NGOs from operating in the Mediterranean Sea are two faces of the same coin: both actions deny the freedom of movement and, often, the right to life of these individuals, allowing states to avoid legal obligations that would otherwise naturally arise.
Compromising our founding values
As the case of the Sea-Watch 3 perfectly shows, people’s lives are being used to play national and international political games and, in doing so, the value of human life itself is put into question over and over again. Instead of the often invoked ‘Clash of Civilization’ (Huntington, 1993) according to which the order and identity of the West would be threatened by the otherness of migrants, it is possible to argue that the policies adopted by the Western governments are the ones that are compromising the founding values of our societies. The controversial interpretation of international legal norms, the negation of basic human and civil rights to migrants, and the adoption of repressive migration policies are all elements that are in stark contrast with the democratic character of the European states. While migration has been depicted as the main threat to nations and alt-right parties have capitalized on this, European states have become sources of extreme insecurity for human beings to which they are supposed to offer assistance. This behavior reduces the migrants to what the philosopher Giorgio Agamben (1998) calls ‘homines sacri’: disposable human beings that are denied access to any form of rights by the sovereign. They are confined to a space outside the law as ‘illegal bodies’ and preserve their lives only in strictly biological terms.
At the moment of writing, 152 people are waiting on two NGO vessels in the Mediterranean Sea. They are being denied entry, once again, by the Italian government. Border security is being favored over saving lives and guaranteeing the right to life and freedom of movement of other human beings. As this happens, the Mediterranean Sea is becoming a desert in which migrants are deprived of any form assistance and can silently die away from the eyes of witnesses. On the other side of the sea, other migrants are held prisoners in Libya thanks to funds donated by the European Union; they are beaten up, raped, and killed while Europe pretends that it is not case. As long as the EU justifies its actions against human beings in terms of security, it establishes itself as one of the principal providers of insecurity on the global stage.
Davide is a final year International Relations student at King’s College London. Writing in the capacity of contributor with Sensus, his interests include migration, international law and international security.
- Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford: Stanford University Press, 1998.
- Cusumano, Eugenio. ‘The sea as humanitarian space: Non-governmental Search and Rescue dilemmas on the Central Mediterranean migratory route’. Mediterranean Politics 23, no. 3 (2018): 387-394.
- European Union Agency for Fundamental Rights. ‘Fundamental rights considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations’. October 2018. Accessible on: https://fra.europa.eu/en/publication/2018/ngos-sar-activities
- Frontex. ‘Migratory Routes: Central Mediterranean Route.’ Accessible on: https://frontex.europa.eu/along-eu-borders/migratory-routes/central-mediterranean-route/
- Gammeltoft-Hansen, Thomas. ‘The Refugee, the Sovereign, and the Sea: European Union Interdiction Policies’ in Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen (eds.), Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond. New York: Palgrave Macmillan, 2008: 171-95.
- Human Rights Watch, ‘No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya’. January 21, 2019. Accessible on: https://www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-contribute-abuse-migrants-libya
- Huntington, Samuel P. ‘The Clash of Civilization?’ Foreign Affairs 72, no. 3 (Summer, 1993): 22-49.
- Paz, Moria. ‘Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls’. Berkeley Journal of International Law 34, no. 1 (2016): 1-43.
- UNHCR, ‘UNHCR urges Italy to reconsider proposed decree affecting rescue at sea in the Central Mediterranean’. June 12, 2019. Accessible on: https://www.unhcr.org/uk/news/press/2019/6/5d0124a74/unhcr-urges-italy-reconsider-proposed-decree-affecting-rescue-sea-central.html
- Walsh, Declan. ‘Airstrike Kills Dozens of Migrants at Detention Center in Libya’. New York Times. July 3, 2019. Accessible on: https://www.nytimes.com/2019/07/03/world/middleeast/libya-airstrike-migrants-tripoli.html?module=inline