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

 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”.