Cut Adrift in the Med
In the summer of 2019 European governments left hundreds of people who had been rescued at sea stranded for weeks, cut adrift in the central Mediterranean.
People who had fled conflict-ridden Libya ended up trapped by cynical political negotiations between EU governments.
In late August 2019, 356 people were stuck on the Ocean Viking rescue ship, run by the NGOs Doctors Without Borders (MSF) and SOS-Mediterranee. Earlier that month it took 19 days, several medical evacuations and desperate jumps into the water before the final 83 people on Proactiva’s Open Arms rescue ship were allowed to disembark in Italy. Notwithstanding the public outcry and the worsening health conditions on board, Italian authorities ignored a judicial order for days before allowing the Open Arms to dock.
Before that, in July Sea-Watch 3’s captain Carola Rackete was arrested in Lampedusa for forcing her way into the port, after being forbidden to enter by Italian police authorities. At the start of 2019, 49 people, including children, were stranded at sea for 19 days after being rescued by NGOs Sea-Watch and Sea Eye.
Incidents of this kind have been routine over the past year, as a result of Italy’s “closed ports” policy launched in June 2018, meaning that ships rescuing refugees and migrants at sea would not be authorized to disembark them in Italy any longer.
Then in June 2019 Italy agreed a law giving powers to the government to ban NGO rescue ships with people on board from entering Italian waters and threatening them with fines of up to 1 million euros and the impounding of the rescue vessels if they do.
NGO vessels are often the only hope for people in danger at sea. So what is going on with migration in the central Mediterranean? And what is Europe doing about it?
How does search and rescue work in the central Mediterranean?
Under international law, people in distress at sea must be promptly rescued and taken to a place of safety, meaning a country where they are treated humanely and offered a genuine opportunity to seek asylum.
Until recently, that meant anyone rescued in the central Mediterranean en route from Libya was disembarked in Europe, as returning them to Libya would condemn them to a real risk of arbitrary detention and torture.
This presented European governments with a dilemma: while they were keen to block migration across the central Mediterranean, as they don’t want people coming to Europe, they couldn’t return people to Libya without breaching the law.
So, they invented a work-around: they started supporting the Libyan Coast Guard to intercept people at sea and return them to Libya. To enable this arrangement, European governments have assisted the Libyan Coast Guard in many ways, including by donating boats, training crews, helping with planning and coordination, and – crucially – doing all the legwork towards the declaration of a Libyan ‘search and rescue region’ in the central Mediterranean.
So how does this work in practice? The answer is, it doesn’t, as we saw during the standoffs that have involved Sea-Watch 3, Open Arms, and Ocean Viking during 2019 in the Mediterranean.
Sea-Watch 3, July 2019
On 12 June 2019 the Sea-Watch 3 rescued 53 people in the Libyan search and rescue region and, following maritime law, alerted the Maritime Rescue Coordination Centres (MRCC) of the state where it is registered - the Netherlands, and of Italy, Libya and Malta.
The Libyan MRCC said to disembark in Tripoli, which the Sea-Watch 3 refused to accept as it is not safe. The Italian MRCC said they were not the right authorities because the rescue had happened in Libya’s region. The Sea-Watch 3 started sailing towards the closest safe port, either Italy or Malta.
The next day Italy forbade them from entering Italian waters. Then the conditions of several people on board deteriorated, leading to 10 people being evacuated to Italy on medical grounds. The ship remained just outside Italian territorial waters for days.
After 14 days at sea, with more passengers’ conditions deteriorating, the captain decided her only option was to enter Italian waters and wait for instructions. As a result, the authorities opened an investigation against the captain. As tensions on board rose, the captain decided to enter the port area. She was arrested and the rescued people finally disembarked after 18 days.
On 2 July 2019 it was ruled that the arrest could not be upheld because the captain had acted in accordance with her duty to rescue people at sea. She was freed but remains under investigation.
Open Arms, August 2019
In two operations on 1 and 2 August, the Open Arms ship saved 124 people from drowning, including two babies, 30 children and two heavily pregnant women. Many reported suffering extreme forms of abuse in Libya. Italy banned the Open Arms from entering its national waters. Malta also refused to accept them.
Ten days later, the Open Arms rescued another 39 people in the Maltese search and rescue region. Malta accepted its responsibility for disembarking them but said the others would have to remain aboard. To avoid possible tensions on board due to only some people being allowed to disembark, the captain declined the offer.
On 1 August Italy banned the Open Arms from entering Italian waters. Five days later a court lifted Italy’s ban, so the Open Arms headed towards Lampedusa, after 15 days at sea. Despite the court order and the fact that six European countries had agreed to take in those on board, Italy still refused permission to dock for five more days.
After several medical evacuations and desperate jumps into the water, eventually the Public Prosecutor ordered the urgent disembarkation of all those on board on 20 August. The absurd standoff and the unnecessary suffering lasted 19 days. An investigation was opened into the failure to allow disembarkation after the initial judicial order.
Ocean Viking, August 2019
Between 8 and 12 August, in four separate rescue operations, the rescue ship Ocean Viking run by SOS Mediterranee and MSF rescued 356 people. Among them were 103 children, 92 of them travelling unaccompanied.
Despite Libyan authorities being alerted multiple times in their search and rescue region, they did not respond and failed to designate a safe place for disembarkation in line with international law.
The Ocean Viking remain stranded at sea for 14 days, at an equal distance from Malta and Italy, waiting for a safe port to open. Finally, an agreement was reached between a few European countries. Malta would let the 356 people disembark and then six countries - France, Germany, Ireland, Luxembourg, Portugal and Romania - would relocate them.
The problems that need addressing
1. The lack of a system to share responsibility
Over the years, there have been many instances of boats carrying refugees and migrants in the Mediterranean left unattended for hours, days or even weeks. These delays have contributed to deaths at sea, as in the case of the “left to die” boat in 2011 and the “children shipwreck” in 2013.
Following such major incidents, EU countries undertook naval operations that saved thousands of lives. But in recent years, in order to reduce the number of people reaching Europe, EU member states have increasingly withdrawn from such engagement, leaving the central Mediterranean once again unattended.
To fill this gap and address the high number of fatalities recorded in the central Mediterranean, a number of NGOs have put ships in the water to rescue people – fully in line with international maritime law. However, now NGO rescue ships are being unfairly accused of constituting a “pull factor”. Not only there is no evidence to support such claim, but publicly available studies demonstrate the opposite: that the presence of rescue vessels has no influence on the number of people crossing the central Mediterranean. It does, however, have an influence on lowering the risk of dying during the sea crossing. Despite this, NGO rescue ships are now being abandoned at sea as they are refused permission to dock in Europe, particularly in Italy and Malta, once they have rescued people. So why are southern European governments so cautious about letting people disembark in their country?
A major reason is the Dublin system, under which the first country the asylum-seeker enters is usually responsible for examining their asylum claim, hosting them during the process, integrating the successful applicant and returning those who are refused protection to their countries. This has significant implications for states of arrival, which – in the absence of intra-European solidarity mechanisms to share these responsibilities – have increasingly chosen to bar asylum-seekers from accessing their country, even when this means exposing them to fatal risks and breaching international obligations.
By failing states of arrival in this way the system also fails asylum-seekers, who are left abandoned at sea, languishing in EU countries with inefficient or overburdened asylum procedures, or unable to be reunited with relatives already in another European country.
Unfortunately, proposals to reform the Dublin system have so far been paralyzed by some European governments. While it may take some time to achieve such much-needed reform, it would only take days to set up a swift and reliable disembarkation procedure and a fair system to distribute asylum-seekers among EU countries.
Several of the standstills thus far have ended with ad hoc agreements to accept people rescued in other EU countries. So why not formalise this and create a mechanism that makes this take place automatically, rather than after weeks of chaotic, dangerous and unnecessary days stranded at sea, sparing vulnerable men, women and children additional suffering?
2. The cooperation with Libya
In recent years, European governments have increasingly kept refugees and migrants away from Europe by outsourcing border control to countries outside Europe. In relation to the central Mediterranean route, Italy and other EU states have tightened control by enabling and encouraging the Libyan Coast Guard to intercept people in distress at sea and return them to Libya.
The fact that women, men and children returned to Libya are arbitrarily detained, tortured, raped and exploited seems to be of little consequence to European leaders, as is the fact that many detention centres in Libya are located in areas directly affected by the conflict raging in the country.
A key part of this strategy of externalization was the declaration of a Libyan search and rescue region in the central Mediterranean in June 2018 – which meant handing over to the Libyan authorities the responsibility for coordinating rescue operations within the area where most shipwrecks happen and for instructing rescue vessels on where to disembark people. But Libya does not have the capacity to coordinate rescues, and, crucially, people rescued at sea cannot lawfully be taken to Libya.
Now, if any ship rescues people in the Libyan search and rescue region, European governments still cannot say, “take them to Libya” – as this would be illegal – but they can say, “that’s Libya’s search and rescue region, so you’ll have to ask them what to do”. The Libyan authorities will invariably instruct the ship’s captain to take survivors back to Libya, but the captain remains bound by international law not to do so.
So a ludicrous, “catch 22” situation arises in which people rescued at sea cannot be taken to either Libya or Europe and are thus stranded at sea, together with rescue ships and crews who have done nothing wrong.
The most insidious consequence of this is that captains of ships, especially commercial ones, are inevitably discouraged from upholding their obligation to rescue people in peril at sea for fear of being left stranded for days on end without a port in which to disembark.
To exacerbate matters, as NGO rescue ships are disrupting Europe’s outsourcing strategy, some governments are preventing them from conducting their life-saving activities through unfounded criminal investigations and bureaucratic obstacles.
For example, in 2019 NGO ships like the Mare Jonio and the Sea-Watch 3 have repeatedly been seized by Italian authorities for weeks following rescues and disembarkations in Italy, under suspicion of facilitating irregular entry. The Mare Jonio was seized on 13 May after rescuing 30 people, and the seizure was lifted at the beginning of August. The Sea-Watch 3 was seized on 18 May after disembarking 47 rescued people in Lampedusa and the seizure was lifted at the beginning of June 2019.
Bureaucratic obstacles are also hindering NGOs rescue activities. On 8 January 2019, Spanish maritime authorities issued an administrative order preventing Proactiva’s ship Open Arms from rescuing people in the central Mediterranean. In the order, the Spanish authorities acknowledge the failures of the system, highlighting how Mediterranean states reacted to recent rescues in ways that breached international maritime law and standards, but make rescuers and asylum-seekers pay the price for that failure.
By setting up this arrangement and pushing NGOs out of Libya’s search and rescue region European leaders have created a legal fiction, using smoke and mirrors to claim they have no responsibility for people in peril at sea and thereby condemning thousands of people to suffer horrific abuse in Libya. This is not a solution.
3. Distorting the debate on migration for political gain
The number of irregular border crossings at Europe’s external borders fell in 2018 to the lowest level in five years, according to the European border agency Frontex.
Only around 116,000 refugees and migrants crossed the Mediterranean in 2018, mostly reaching Spain (58,569), Greece (32,497) and Italy (23,370).
According to UNHCR (the UN’s refugee agency), 50,116 people crossed the Mediterranean in 2019 as of 9 September: 33,999 arrived in Greece, 19,782 in Spain, 5,752 in Italy, 1,585 in Malta, and 794 in Cyprus.
When you consider that more than 500 million people live in the EU and compare it to the numbers of people moving within Africa and Asia, the number of people crossing the Mediterranean irregularly is far from the ‘wave’ some would have us believe.
While recent policies, particularly by Italy, have led to a resurgence of so-called ‘ghost boats’ reaching Italy undetected, and have increased the likelihood of shipwrecks remaining unregistered, there is no doubt that the number of sea crossings has plummeted.
At the same time, the risk of drowning during the crossing has risen, with very few dedicated rescue ships now available. Around 900 people were feared drowned or missing as of August in 2019, about 640 of them in the central Mediterranean according to IOM, leading the death rate to be about one in 5.
Despite these facts, some governments keep insisting that Europe is facing a “crisis” and that migrants and refugees are a threat to Europe, as are people who assist them - including by saving them at sea. Very few European governments are accepting that the real crisis is about loss of life at sea.
Fostering division and fuelling hate against foreigners, seizing on the visible spectacle of sea rescues - despite the fact that most people migrate via land and air - and blaming the EU for everything even when national governments are creating the problems, is a strategy employed by politicians more interested in getting votes than in solving problems. Men, women and children left suffering at sea are merely pawns in this political game.
What is the solution?
To address such a complex situation, European governments must work together on a joint solution that works for all states and that, crucially, works for people.
If they want fewer people to make irregular journeys to Europe, they need to offer safe and legal opportunities to come and seek asylum, look for employment, or reunite with relatives. This does not mean removing border controls, but rather expanding safe and regular pathways and improving migration governance.
Of course, some people will still make sea crossings in flimsy boats, so Europe must have a mechanism to respond. This involves having enough rescue vessels, but also setting up a swift and reliable disembarkation mechanism in line with international law, and a fair system to share responsibility for asylum-seekers among EU countries.
As European governments engage with Libyan authorities to help stabilize the country, they should make human rights protection the priority in Libya, including for refugees and migrants. European support and assistance in Libya should help end the reliance on detention, ensure the prompt release of all those arbitrarily detained and guarantee that refugees can be resettled in a safe country.
We can do better
As the EU Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos said of the Sea-Watch/Sea-Eye debacle in January 2019:
“This has not been Europe’s finest hour...The European Union is about human values and solidarity. And if human values and solidarity are not upheld, it is not Europe.”
This has not been Europe’s finest hour...
However, similar incidents keep happening and EU leaders have yet to agree on a solution.
But human rights and solidarity are still supported by most Europeans and policies to block human movement at any cost are not supported as widely as their proponents suggest.
We need to cut through the rhetoric which demonises refugees and migrants, and those trying to help them, purely for political gain. Many Europeans believe in saving lives at sea, want a fairer asylum system and more humane governance of migration, and want to ensure the rights of people migrating to Europe are protected, not diminished.
There is no simple solution. But precisely because of the complexity of the situation, decision-makers must put scaremongering aside and work to adopt credible, effective, humane and realistic policies, which uphold - rather than erode – human rights.
(Updated 10 September 2019)