From push-backs to pull-backs: The EU’s new deterrence strategy faces legal challenge

Filed lawsuit to the European Court of Human Rights may investigate cooperation between Italy and Libyan coast guards on pull-back operations in the Mediterranean resulting in massive human rights violations.

 

On 6 November 2017, at least 20 migrants and asylum seekers lost their lives at the Mediterranean while trying to reach the Italian shores by boat. However devasting such news are, we have gotten used to them as they occur on a regularly basis. The International Organization for Migration’s project Missing Migrants has recorded 1,763 deaths of migrants and asylum seekers in the Mediterranean in 2017. The real figure is very likely to be much higher as the sea route to Italy has been described as the world’s most lethal one. This tragedy of November 2017, however, will not be as quickly forgotten as many other ones. And hopefully, in years from now, justice will be done for those who died in this incident and to those who suffered from its consequences.

The reasons for this exceptionality are manifold. For one, this case has been documented in detail. Evidence from Forensic Oceanography (part of Forensic Architecture, University of London) including a visual reconstruction using video footage of the sequence of the events and a minutely detailed report reconstruct the incident and unravel the reasons for the many casualties that occurred during the rescue action. As in many other incidents, the Libyan coast guard violently interfered with the efforts of an NGO vessel trying to rescue people from a sinking dinghy.

In this specific incident, the Sea-Watch 3 vessel was deterred from continuing its ongoing rescue efforts of 130 people from a sinking boat. Thanks to multiple audio and visual recording devices on board the Sea-Watch vessel, this violent pull-back by the Libyan coast guards was documented in great detail.

According to Sea Watch, the sinking dinghy capsized after the Libyan coast guards had interfered in their rescue efforts. The team also reported that the coast guards “beat and threatened” several survivors, pulled them out of the water and off the remains of the sinking dinghy. 47 of them were then returned to the Libyan mainland and ended up in a Libyan detention camps where they were reportedly subjected to severe violence. These 47 survivors of the incident share the experience of thousands of migrants and asylum seekers that are currently locked up in such camps and facing torture, rape and other human rights violations.

Ironically, the intervening Libyan vessel had been donated by Italy shortly before this deadly incident and eight out of the thirteen crew members that conducted the deadly interception had received training by the European Union prior to the incident.

This collected evidence now serves as the basis for legal action against Italy over its cooperation with the Libyan cost guard in the November 6 incident. The Global Legal Action Network (GLAN) and the Association for Juridical Studies on Immigration (ASGI) with support from the Italian non-profit organization ARCI and Yale Law School’s Lowenstein International Human Rights Clinic have submitted in mid-May a complaint to the European Court of Human Rights (ECtHR) on behalf of seventeen survivors and of the parents of two children that drowned during the incident.

Even though Italian authorities were not physically at the scene during the fatal rescue efforts, they were partly coordinated by an Italian government agency, the Maritime Rescue and Coordination Centre (MRCC) situated in Rome. As Libya does not yet have its own MRCC, so far, the Italian center organizes and coordinates such rescue operations. In the case at hand, the MRCC had contacted both the Sea-Watch 3 vessel and the Libyan coast guards and asked to render assistance to the boat in distress. However, this did not lead to a joint mission to safe lives of drowning people but turned into a lethal struggle about where the survivors are taken to.

In the past year, rescue efforts in the Mediterranean have increasingly turned into a dangerous ‘first come first serve’ game between the Libyan coast guard and NGO vessels on who gets to aboard the rescued migrants and asylum seekers as those rescued by Libyan authorities are returned to the mainland, while those rescued by NGO vessels and other actors are brought to Europe (see post: Keep out! – Libya’s “Search and Rescue Region” to ban NGO rescue vessels violates international law).

The question of who takes the leadership of such rescue actions is determined on the basis of the law of the sea, specifically as determined by the 1979 International Convention on Maritime Search and Rescue (SAR), which Libya joined in 2016. According to this Convention, when rescue units are about to engage in “search and rescue operations, one of them should be designated on-scene commander as early as practicable and preferably before ar­rival within the specified search area”. The Convention further specifies that the appropriate rescue coordination center, here the MRCC in Rome, “should designate an on-scene commander”. If this is not practicable, “the units involved should designate by mutual agreement an on-scene commander”  (SAR Annex 5.7.1-2).

In general, in order to enable effective rescue actions the first unit to arrive at the vessel of distress is to take immediate action and assumes responsibilities as long as the coastal state has not determined an on-scene commander (SAR Annex 5.7.1-3). In the case at hand, a lack of clear communication on the part of the MRCC and the Libyan Operation room as well as the fact that the Sea-Watch team had commenced its rescue mission when the Libyan cost guards arrived, led to the violent struggle about who assumes responsibility. The Sea-Watch rescue efforts came to an end when the Libyan coast guard hindered any further action by throwing objects at the inflatable NGO boat.

 

Italy’s new migration deterrence strategy: from push-back to pull-back by proxy

Ties between Libya and the European Union, especially Italy are close when it comes to migration control even though the United Nations High Commissioner for Refugees has unsuccessfully been urging the international community for many years to refrain from cooperating with Libya until the state complies with international human rights standards. The Libyan-Italian migration cooperation is an old concept which has been adapted over time to changing migration patterns and also because of legal interventions by the ECtHR in Strasbourg. Italy and Libya already established a first return agreement in the mid-1990s. Several other treaties such as the 2008 Berlusconi-Gaddafi Treaty of Friendship (2008 accords) followed. After the end of the Al-Gaddafi regime, a new era of intense interest of cooperation began. Since 2015, a European Union Naval force (Operation Sophia) has been set up and the UN Security Council Resolution 2240 was passed, giving naval forces the authority to be present on the high seas and in Libyan territorial waters. Besides that, massive amounts of monetary support, equipment, strategic and political support, legal and technical training of the Libyan Coastguard and Navy was provided by the European Union and individual member states such as Italy (see post: The European Union’s hypocrisy in Libya – training local authorities, blaming local authorities).  The basis for this intensified Italian support for the Libyan coast guard was the reactivation of the 2008 accords in 2017 which included a section on joint naval patrols inside Libyan waters.

This new level of cooperation between the two states ultimately also enabled a new policy in migration control: a shift from illegal push-backs conducted by Italian authorities to Libya towards a pull-back by proxy-strategy where the Libyan cost guard’s role is to intercept migrant boats and return them to Libya. This practice ensures that Italy acts in accordance with international law and within the framework of the European Convention on Human Rights (ECHR) in its efforts to reduce the number of arrivals.

In 2012, the Grand Chamber of the ECtHR in its landmark Hirsi Jamaa judgement held that Italy had violated the prohibition of torture and inhuman or degrading treatment (Art. 3 of the ECHR), the prohibition of collective expulsion (Art. 4 Protocol 4 ECHR) and the right to an effective remedy (Art. 13 taken in conjunction with Art. 3 and Art. 4 Protocol 4 ECHR) by pushing back migrants to Libya without giving individually examining the personal circumstances of every individual onboard.

Importantly, the Grand Chamber also found that the member states are bound to the obligations enshrined in the Convention not only when they exercise jurisdiction on their territory, but also on the High Sea as long as they have a continuous and exclusive de jure and de facto control over the individuals on board. As Italy did have such a continuous and exclusive control over the applicants in the Hirsi Jamaa case, the jurisdictional link was established, and Italy was found responsible for this internationally wrongful act.

This ECtHR judgment was seen as a great success by many in the struggle for ensuring that ECHR-member states adhere to their human rights obligations. Regrettably, instead of backing down from inhuman return practices, new approaches of outsourcing such actions to third states have been found-and Libya has turned out to be a willing partner in this regard. The pull-back by proxy practice conducted by the Libyan coast guard has led to fatal consequences such as in the November 6-case where the drowning of the 20 individuals most likely could have been prevented. The story told by the Libyan coast guards and by Forensic Oceanography (detailed report from p. 87 on) on these events could not differ more. The coast guards blame the Sea-Watch 3 rescue vessel for the deaths and vice versa. If the application is accepted by the ECtHR, which would be of immense importance (for a detailed risk-benefit analysis of taking such a case to the ECtHR see Baumgärtel’s post), the exact occurrence of events will most likely be a decisive issue of the case.

 

The crux of the case: the jurisdictional link between Italy’s acts and the violation of the Convention rights

The recently submitted complaint to the ECtHR against Italy alleges violations of the right to life (Art. 2), and of the prohibition of torture and inhumane or degrading treatment (Art. 3) of the ECHR, as well as a violation of the prohibition of collective expulsions (Art. 4 of Protocol 4) which demands an individual, reasonable and objective examination of the personal circumstances of every claimant and her particular case by the relevant authorities.

These allegations are the only detail (besides the forensic report mentioned above) publicly available. Thus, the claimant’s line of arguments remains a topic of speculation. The crux of the case and likely the decisive question the judges would have to answer if the admissibility is granted will be whether or not Italy’s jurisdiction in these events can be established.

Art. 1 ECHR stipulates that the exercise of jurisdiction is a necessary condition for a member state to be responsible for any acts or omissions. Only in very exceptional cases, such acts outside the territories of the member states can trigger jurisdiction within the meaning of Art. 1 ECHR (see e.g.: ECtHR Catan and Others v. the Republic of Moldova and Russia). One of these exceptions, as mentioned above, is based on the power or control actually exercised over the person of the applicant (ratione personae)  (see: ECtHR Banković and Others v. Belgium and Others, Medvedyev and Others v. France, Al-Skeini and Others v. the United Kingdom, Hirsi Jamaa and Others v. Italy).

Hence, in order for the Strasbourg Court to find Italy responsible for violations of the mentioned rights guaranteed by the ECHR, the applicants would need to proof that they were under the continuous and exclusive de jure and de facto control of the Italian authorities. Despite a multiform support by Italy, it will be a difficult task to establish such a link, but not an impossible task. In contrast to the Hirsi Jamaa case, where the crews of the control exercising vessel was composed exclusively of Italian military personnel, in the case at hand, no Italian personnel was present.

The fact that the patrol boat used in this incident was given by Italy will most likely not suffice for the narrow “control-over-persons-test”. Nevertheless, the test could be affirmed if there is sufficient evidence, that the forceful interception was continuously coordinated and thus controlled by the Italian coast guards as the communication between the Italian and Libyan coast guard indicates. Another line of argument for the establishment of Italy’s de jure and de facto control could be the referral to the control exercised by the MRCC in Rome, an Italian government agency which had coordinated the rescue efforts.

A third argumentation strategy for the establishment of the jurisdictional link could be based on Italy’s omission in this incident. An Italian navy ship which is part of the Mare Sicuro operation whose mandate is to facilitate interceptions by the Libyan coast guard within the Libyan territorial waters was geographically close to the incident and did not interfere. If it can be proofed that the crew of the navy ship knew about the ongoing circumstances at the rescue site and did not interfere, this omission could also serve as the basis for jurisdiction.

It remains to be seen which lines of arguments the applicants have chosen given that the ECtHR accepts the submissions in the case at hand. Even if the ECtHR would choose not to accept the submissions, the claimants have already achieved to raise awareness of the changing policies the EU and Italy are turning to in order to curb the numbers of arrivals at all costs. Also, the fact that such incidents have been and continue to be very well and in detailed documented gives hope that this has a certain impact on the behavior of the Italian and Libyan authorities conducting such actions. Morally and politically, the EU and Italy are jointly responsible not only for the 20 deaths during the November incident, but also for thousands more that have lost their lives in recent years in their effort to reach European shores.

 

The misery in the Mediterranean continues: pull-backs supported by the EU violate international law

While the admissibility of the submission is pending at the ECtHR, the horrific situation for migrants and asylum seekers trying to cross the Mediterranean continues. Many more deadly  and EU-supported pull-backs to Libya have occurred since the November 2017 incident. The latest happened end of May 2018 whereby five people went missing according to a Sea Watch report.

At the same time, the situation in Libyan detention camps where many of the pulled-back migrants and asylum-seekers end up remains inhuman. Severe violations of human rights law including jus cogens norms such as the prohibition of torture and arbitrary killings occur on a daily basis as officially documented in the recently published annual report of the UN High Commissioner for Human Rights. (A/HRC/37/46).

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has in its most recent report to the UN Human Rights Council (A/HRC/37/50) stipulated that “regarding the context of migration it should be specifically recalled that States must respect and ensure the right to be free from torture and ill-treatment without any discrimination”. The Rapporteur then went on to point out that

“with regard to the absolute and non-derogable right of migrants not to be subjected to torture and ill-treatment, this entails that States cannot lawfully engage in any activity, or conclude any agreement with other States […] the foreseeable consequences of which would undermine or defeat the very object and purpose of that right, or of any of the ancillary rights designed to give it effect in practice, such as the rights to leave any country or territory, to seek and enjoy asylum, not to be detained arbitrarily, and to have individual rights and duties determined in a due process proceeding.”

If the EU member states would take their international obligations and their duties under the ECHR serious, no EU orchestrated pull-backs to Libya would occur. However, looking at ongoing heated debates on a national and on an EU-level on the issue of migration, as the discussions about the Aquarius tragedy demonstrated once again clearly, that this most likely remains nothing but wishful thinking. In such times, legal action jointly with media attention and pressure from society against the EU’s pull-back policies may be the only effective way to fight back.

 

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