The ‘left-to-die boat’: whose responsibility for the death of 63 migrants in the Mediterranean?

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 Francesco Messineo is lecturer at Kent Law School, Canterbury.

Given the relative lack of media hype (with notable exceptions, see also here), readers may have missed the Council of Europe Parliamentary Assembly’s scathing report on the ‘left-to-die boat’ in the Mediterranean. On 27 March 2011, during the UN-authorized NATO military operations in Libya (see UNSCR 1973(2011)), a dinghy with 72 migrants (some of whom children) was making its way from Tripoli to Lampedusa when it run into difficulties for lack of fuel and food/water supplies. The ‘captain’ of the dinghy contacted a priest in Italy who swiftly alerted the Guardia Costiera (Coast Guard). The Italian authorities informed NATO of the coordinates of the ship in distress and sent repeated ‘ship in distress’ messages to all nearby vessels via satellite. An unidentified helicopter offered water and biscuits to the migrants and an unidentified warship passed very close nearby. Fishermen vessels also passed nearby. Spanish and Italian military vessels were apparently within easy reach. Yet no one rescued the migrants – and 63 of them died before the dinghy was brought by currents back to a city in Libya, after two weeks from their departure.

The United Nations estimates that at least 1,500 migrants died at sea in 2011 alone, but something is particularly harrowing about this case. The Italian government, the Spanish government, NATO (which had established a ‘maritime surveillance area’) and other countries knew the location of the dinghy, knew what the situation was, but omitted to intervene and effectively left 63 people to die of hunger and thirst in a portion of sea otherwise crowded with military and other ships (some of which precisely in charge of protecting the Libyan civilian population).

Among the many maritime borders and delimitations in the Mediterranean sea, one of the most important ones is the Search And Rescue (SAR) areas established under the International Maritime Search and Rescue Convention (1405 UNTS 118, as amended). Although this incident took place in the Libyan SAR, the Italian government, which had first received information about the distress, was probably under an obligation to coordinate a rescue operation. In fact, the Italian government today acknowledged its responsibility for the events. Minister Riccardi said that the government ‘accepts responsibility for this’, adding that these facts had ‘touched [him] very much’ and that they must provoke a rethinking of migration policies. The legal consequences of this acceptance of responsibility are important: Italy should now immediately proceed to compensate the survivors and the families of the victims for the suffering caused by Italy’s breach of its international obligations. Although commendable, ministerial apologies are certainly not enough.

Furthermore, Italy is probably not the only international subject responsible for these events. I will leave it to experts on the Law of the Sea to comment on the adequacy of the SAR system when a government (in this case, Libya) effectively loses control over its SAR area because it is involved in an armed conflict – perhaps the fact that NATO had established a ‘maritime surveillance area’ in the area under consideration meant that NATO itself had primary Search and Rescue responsibility. More clearly, under Article 98 UNCLOS, all vessels, be they military or otherwise, have a duty to assist persons in distress at sea if they can safely do so (rectius, every State has a duty to ensure that all ships flying its flag abide by this rule). Something evidently went wrong.

NATO’s position in this regard has been wholly unclear. In a letter sent to Dr Tineke Strik, the author of the Council of Europe’s report, on 8 February 2012 (here on p. 4), the Organization said that ‘the navies of NATO member states are aware of their relevant obligations under maritime law, including those with respect to rendering assistance to persons or ships in distress. … [D]uring the [Libya] campaign NATO vessels actively assisted many vessels in distress’. In this particular instance, however, ‘with the exception of the 27 March initial notification from the Maritime Rescue Coordination Centre Rome of a small boat probably in difficulty, … the relevant military headquarters have no record of any … follow-on events. … There is no record of  any aircraft or ship under NATO command having seen or made contact with the small boat in question’. According to NATO, the initial message from Italian authorities had not been clear enough: it referred to a ship ‘probably in difficulty’, gave no ‘sense of seriousness or urgency’ and ‘did not include the standard indicators that are found on “distress messages”’.

The problem seems to lie in the fact that the messages that Italian authorities sent every four hours to all vessels in the area did contain the phrase “Priority: distress”, while the message sent directly to NATO headquarters did not (report, p. 12). However, this does not, in itself, relieve NATO of all responsibility. If it were to be proved that ships under NATO command received the Italian authorities more clearly worded messages, NATO responsibility could still be established. In particular, it is impossible to know with any certainty to which army the helicopter and military ship which did came into contact with the dinghy belonged – and why no rescue operation ensued.

The question would obviously be one of establishing which rules of international law – including international human rights law – would be applicable in the present situation. Given that Hirsi (on which here) clearly established that the European Convention on Human Rights may also apply in the high seas under certain conditions, NATO member states which are also ECHR signatories would probably be violating Article 2 (and maybe 3) ECHR if they came into contact with a ship in distress and let people die of starvation and thirst instead of helping them. But would simply being aware of the situation and not intervening be enough to trigger Article 2 extraterritorially? Maybe not as a matter of strict construction.

Readers should read Dr Strik’s excellent report and draw their own conclusions as to the likely real succession of events in March and April 2011. Both legally and politically, these events are indeed a ‘catalogue of failures’ of the international actors concerned. But there is more to be said about this sad and complicated story. Decades of European-wide anti‑immigration policies have left their mark on how search and rescue operations are carried out in the Mediterranean, and have needlessly put at serious risk the lives of hundreds of migrants (many of whom refugees) while claiming to do the exact opposite (preventing the loss of life in the Mediterranean being one of the key elements of anti‑immigration policy discourse in Europe). It really is a low point of Euro‑Mediterranean civilisation if fishermen and other private shipmasters are too afraid that they will be criminalised or otherwise ‘run into trouble’ if they offer help to small boats in distress.

Editor’s note: The posts mentioned in the first comment below are: S. Trevisanut, “Aircraft carrier left us to die, say migrants” and E.Papastavridis, “Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

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Akis Papastavridis says

April 1, 2012

Dear Francesco.
Thanks for drawing our attention to the Council of Europe Parliamentary Assembly’s Report on this incident. Seline Trevisanut and the author of this reply had commented on this few months ago at EJIL Talk (see posts filed under EJIL Analysis on 31 May).
To reply to your comment, I am not ready to accept that NATO per se has any obligation under the law of the sea, including LOSC; thus, any responsibility for not saving these persons lives, according to article 98 (1) of UNCLOS, lies with the flag States of the warships participating in NATO's Operation.
As regards human rights and the potential applicability of ECHR, I would agree with you that after Medvedyev and Hirsi, there is no question that the Convention applies on the high seas. On the right to life, I am thinking that we have to put forward the argument that there is also a positive obligation of States in such maritime operations under article 2, which presupposes the exercise of effective control on the whole operational area...difficult...

Francesco Messineo says

April 9, 2012

Dear Akis,

many thanks for your comments. I do apologise for not linking to your and Seline's excellent previous posts on this topic - my fault entirely.

There are obviously multiple complex layers to the question of whether NATO can be said to have any obligations under the law of the sea or not. First, we would have to agree that NATO indeed has international legal personality (not everyone does, although I do), and then we would have to establish which are the obligations it owes as an international legal person dinstinct from the states that make it up.

But why would we exclude in principle the applicability of the whole of the Law of the Sea to international organizations?

To take the international legal personality problem out of the way, let us imagine that instead of being a NATO operation, the control over that area of Libyan and Mediterranean waters had been established by forces acting under the command of the Secretary General of the UN / the Dpko. In other words, let's imagine a peacekeeping operation operating at sea. Are we really prepared to say that the UN, as such, would have no legal obligations under the law of the sea in these circumstances?

There is also another dimension to this problem. If I understand this correctly (but please do correct me!), under the Law of the Sea, Search and Rescue obligations attach to the captains of vessels, regardless of the flag they are flying (we might even say this is an example of customary international legal duty attaching to individuals since pre-human rights / ICL times): under the SAR Convention, States have an obligation to make sure that these obligations are respected and followed by captains of vessels flying their flag - but the underlying obligation was pre-existing to the SAR convention and is still there. If this is the case, couldn't NATO be said to have the same obligation, if it commands vessels?

But quite aside from SAR, there are indeed human rights (and, potentially, international humanitarian law) implications to this.

Akis Papastavridis says

April 10, 2012

Dear Francesco,
Thanks for your reply. I do agree with you on the human rights or humanitarian law obligations of NATO or international organisations in general as well as on your reading of the article 98 obligation incumbent upon the masters. However, I am still quite hesitant to admit that NATO could incur responsibility for the violation of article 98. Before explaining why, please let me repeat that I do not argue that NOONE bears responsibility for not assisting these poor people on the high seas. On the contrary, I am arguing that the coastal States, who were responsible for the SAR zone, as well as the flag States of the warships turning a blind eye to these peopke in distress should be held repsonsible.
Having said that, I keep holding the view that NATO does not have any responsibility for this, not because the wrongful conduct was not attributed to it, but because there was no primary obligation incumbent upon it, which was, arguably, breached. Article 98 speaks of the obligation of the flag States to ensure that masters of the vessels assist persons in distress. This presupposes that these vessels are registered in the flag States concerned, which, in turn, should provide in their legislation for such obligation of the Master. This is exactly the missing link here: NATO or, in fact, any other organisation does not hold any ship registry; vessels operate under NATO or EU control, but they are actually registered under member States. Thus, the latter would be responsible for failing to adhere to this obligation and not NATO or EU.

Francesco Messineo says

April 10, 2012

Dear Akis,

many thanks - we do agree on the basics of this: I never intended to say that Article 98 UNCLOS is directly applicable to NATO. But I wonder if we can say that it is applicable indirectly.

Here are two possible lines of reasoning I propose we consider - which may or may not work:

- Line of argument # 1: Article 98 UNCLOS is binding on NATO because NATO, as an IO, should be deemed bound by all legal obligations which are common to all its member states. Because of specific provisions in the EU treaties, this seems to be the position with regards to the EU - but it is much more complex to argue this point with relations to IOs generally. But even if this (particulary complex) point was successful, it would still run into your objection that Article 98 presupposes a ship registry, which IOs do not have.

- Line of argument # 2: There is a customary international law rule, pre-existing to Article 98 UNCLOS, which binds all international law subjects who have authority over ships to make sure masters respect their international legal duty to save people at sea. Bowett's Law of International Institutions (6th ed. by Sands and Klein) at p. 463 refers to this type of argument (although referring generically to 'activities in maritime areas'). If this were the case, NATO would be bound to facilitate/promote SAR by ships under its control.

Interestingly, NATO's official position seems to be that it IS bound by these rules, as the letter annexed to the Report commented here somewhat obliquely shows - see on page 4, where the Deputy Assistant Secretary General of NATO declares that

"forces under NATO command and the navies of NATO member states are aware of their relevant obligations under maritime law, including those with respect to rendering assistance to persons or ships in distress. As we mentioned during our meeting with you in November and to which you referred in our subsequent letter, during the campaign NATO vessels actively assisted many vessels in distress".

This may be taken as a recognition that 'forces under NATO command' have SAR obligations also qua forces under NATO command, and not just as state organs. But of course this can also be read otherwise.

Akis Papastavridis says

April 12, 2012

Dear Francesco,
I was between different cities yesterday and today and I didn' t have internet access.
Well, undoubtedly, your comments, including the references to Bowett's International Organizations and to the statement of the NATO official, are both very interesting and apposite. Nonetheless, I am not totally convinced.
As to the first line of argumentation, it is really complex, as you acknowledge and still runs counter to the normative content of article 98. Even for the EU, which might be presumed to be bound by more obligations of its MS, it is not the case with regard to the law of the sea in toto. For example, the EU is party to LOSC only for these matters that MS have tranferred competences.
As far as the second line of reasoning is concerned, it seems more persuasive, but still is not fully tenable. The treaty obligation of search and rescue dates back to the 1910 International Convention for the Unification of Certain Rules Relating to Assistance and Salvage at Sea, the 1958 Geneva Convention on the High Seas, the 1974 SOLAS Convention etc. The persons entrusted with this sacrosanct duty to provide assistance were always the Masters of the vessels and the international legal persons endowed with an obligation to provide and monitor such duty were the flag States. I fail to see any room for a pre-existing duty of international organisations in this respect.
Lastly, the statement of the NATO official speaks about "forces under NATO command and the navies of NATO member states are aware of their relevant obligations"..he refers clearly to MS. Their vessels may be under the command of the NATO, but it is "THEIR relevant obligations" that have to be respected. Arguably, NATO could be held responsible for complicity under articles 14 and 15 of DARIO, but the requirement that 'the act would be internationally wrongful if committed by that organization' perplexes the situation.
Concluding, it seems to me that much ink has already been spilt over questions of attribution of wrongful conduct to international organisations, while less attention has been given to the preliminary question of the content of the primary obligations of international organisations.
Many thanks, again, Francesco, for the post and your comments!

Francesco Messineo says

April 12, 2012

Thank you Akis - and at this point I must just bow away and conclude our debate by just accepting your points as equally potentially valid, as I am indeed guilty as charged, i.e. one of those dedicating much of their (digital) ink on the question of attribution of conduct to IOs rather the content of obligations... (that was the topic of my doctoral dissertation, which will hopefully soon enough be in print :))

Best regards!


Akis Papastavridis says

April 12, 2012

Very logical and excusable guilt, I guess...My doctoral thesis, on the other hand-to be out soon as well- was on interception on the high seas, so you can pardon my legitimate interest in LOSC and search and rescue.
I really enjoyed the debate..once again, thanks.
Best regards,