1. In 2011, I was asked to look into the circumstances
surrounding the tragic deaths of 63 women, men and children left
adrift in a boat off the coast of Europe for 15 days in March/April
In April 2012, the Parliamentary Assembly adopted Resolution 1872 (2012)
“Lives lost in the Mediterranean Sea: Who is responsible?”.
With many essential
questions remaining unanswered even now, the tendency has been to
shift the blame elsewhere and obscure the issue of who was responsible.
No entity has conducted itself honourably.
3. As I concluded in my previous report, the “left-to-die boat”
tragedy was clearly a collective failure every step of the way and
by all key actors. Despite heavy criticism about the failures to
co-operate, admit responsibility and learn lessons, it took even
more tragic events towards the end of 2013 and mid-2014 for any concerted
action to be seen to be taken.
In October 2013, two particularly grave incidents attracted
worldwide attention to the issue. Two vessels capsized off the coast
of Lampedusa within nine days of each other, with over 400 fatalities.
in April and May 2014, dozens of migrants drowned at sea and hundreds
This report aims to clarify the steps that have been taken
since the adoption of Resolution
. I take this opportunity to thank all the authorities,
stakeholders and experts who have made valuable contributions to
2. The left-to-die
boat: missing answers in the investigation
6. Notwithstanding continuing enquiries, from myself
and others, central questions that I had identified in my April
2012 report still remain without answers. To my further enquiries
I received denials, referrals back to the North Atlantic Treaty
Organisation (NATO) and/or the member States, or, in some cases,
no answer at all. Not having any legal standing, in particular as
these questions involved military matters, it was not possible for me
to compel answers. Legal cases and Freedom of Information applications
are being pursued in a number of the member States implicated, but
seem to be in vain.
under NATO command
, the Assembly highlighted the lack of clarity as regards
the responsibility of and for vessels under NATO command in respect
of carrying out rescues at sea.
Since April 2012, the Assembly has still not received comprehensive
information on the involvement of respective assets in NATO and
participating member States.
9. On the eve of the plenary debate in Strasbourg on 24 April
2012, I received a letter from NATO (see appendix) informing me
that NATO had not declared a “military zone” in the Mediterranean
and therefore had no overall co-ordination role for Search and Rescue
(SAR) Operations in the area of the incident.
10. I was surprised to read that NATO did not hold satellite imagery
that could help “identify military, merchant or other ships in the
area … because satellite imagery was not used by NATO to develop
Maritime Situational Awareness in support of [the] UN-mandated embargo
operation ... or to create a Recognized Maritime Picture (RMP)”.
It is furthermore disappointing to read that the current RMP tool
used by NATO in certain circumstances has no recording capability.
11. NATO informed me that at the time of the incident “only eight
vessels in the Mediterranean were under NATO command, covering an
operations area of over 61 000 square nautical miles”. NATO also
confirmed that “helicopters from ships under NATO command were flying
in the general area of the migrant boat”. Yet, there is no data
that would allow the helicopter to be identified.
12. NATO confirmed that the Spanish frigate Mendez
Nuñez, under NATO Command, was approximately 24 nautical
miles away, and “conducted [an unsuccessful] search in an area of
60nm following an instruction received on the morning of 28 March
from the ITS Etna”. The ITS Borsini was said to be 37 nautical
miles away from the position given.
13. I remain very sceptic at NATO’s statement that not all military
vessels during NATO operations are “equipped with Global Maritime
Distress and Safety System” (GMDSS), in any of its versions, or
have the means to receive Hydrolant distress messages. The standards
for tactical communications systems which vessels must have when
operating as part of a NATO-led force on operations or during training
and exercises do not include requirements for civilian communications
systems such as INMARSAT.
14. I am further concerned to read that neither the ships nor
the “Maritime Command Naples did receive any further messages from
Maritime Rescue Coordination Centre (MRCC) Rome on the boat in question”
in addition to the 27 March distress call.
15. NATO has said they “continue to actively review [their] records
in order to ascertain what happened”. The work is apparently ongoing.
Although they have engaged in a “comprehensive” lessons learned
process, in which they have been “examining ways by which [they]
could strengthen [NATO] information sharing and procedures related
to SAR at Sea during NATO-led operations”, I have no further details
on the actual content of the process.
16. There are worrying information gaps which still prevent our
Assembly from getting a comprehensive overview of which information
regarding the distress call was shared with whom. It is still unclear
which communication system the allied partners used, and how it
can be possible to communicate if certain communication systems
are not obligatory.
2.2. Enquiries by national
parliaments and governments
The further responses I received after the adoption
of Resolution 1872 (2012)
from Italy, Spain and the United Kingdom (see Appendix)
still don’t allow me to ascertain the facts and responsibilities
of the left-to-die boat incident.
18. Member States participating in the NATO co-ordinated operation
should fully co-operate with the Assembly in order to get clarity
on which actors were involved in the reported left-to-die boat.
Although I have received replies from nearly all countries I have
addressed, I urge the United States to reply to the outstanding questions
and the parliamentarians of France, Greece, Italy, Romania, Spain,
Turkey and the United Kingdom should press their governments to
provide full information, if necessary by means of their inquiry
19. The Italian Senate’s Special Commission on the Protection
and Promotion of Human Rights convened a hearing in July 2012, during
which I presented the Assembly’s concerns. However, no concrete
2.3. European Parliament
inquiries into responsibilities
20. During the presentation of my findings before the
Committee on Civil Liberties, Justice and Home Affairs (LIBE) of
the European Parliament, I urged the members of European Parliament
to co-operate in getting access to relevant sources, such as satellite
information. Unfortunately, no action has been undertaken. Therefore,
there was no follow-up to the letter of the High Representative
of the Union for Foreign Affairs and Security Policy/Vice-President
of the European Commission, Ms Catherine Ashton, in which she answered
that she had no relevant satellite imagery available.
21. It is still relevant and crucial to get hold of satellite
imagery of that period and that specific area. It is hard to believe
that these images do not exist.
2.4. National legal
22. With support from non-governmental organisations
(NGOs), in particular that of the International Federation for Human
Rights (FIDH), cases have been brought before the courts in Italy,
France, Spain and Belgium, and Freedom of Information (FoI) applications
filed in Canada, the United Kingdom and the United States.
23. The initial case brought in the Tribunal
de Grande Instance in France in April 2012, for failure
to come to the rescue of persons in peril, was dropped by the public
prosecutor in December 2012 on the advice of the Ministry of Defence.
24. A second case, a civil action, was brought under Article 86
of the French Code of Criminal Procedure in June 2013 by two survivors
supported by three NGOs. The judge dismissed this second case on
the grounds that “exhaustive investigations by prestigious international
bodies” had been unable to uncover evidence of French responsibility
and, in any case, French ships were not in the area of the drifting
boat nor were French aircraft charged with surveillance of this
part of the sea. On 11 December 2013, the claimants gave notice
of appeal against this decision.
25. A civil action was also initiated in Spain in June 2013 in
the names of the same two survivors. In November 2013, the lawyer
bringing the case was informed that the case had been rejected in
light of a report from the Spanish Navy to the effect that the Spanish
vessel Mendez Nuñez had not
been close enough to the migrants’ boat. This decision was also
26. A criminal case wasfiled
in Belgium at the end of November 2013 before the Brussels Tribunal
of First Instance, in the name of three of the survivors.
The FoI requests to Canada, the United Kingdom and the United
States concerned the movement of ships in the Mediterranean at the
time of the incident.
of the time of writing, Canada had responded in part to the request
for information, while indicating that military secrecy prevents
further revelations; the information provided sheds no further light
on the 2011 incident. The United Kingdom and the United States have
28. Regarding the survivors of the left-to-die boat whose applications
for asylum or residence on humanitarian grounds are still pending,
I urge the member States they reside in to grant them the right
3. Lessons learned
from the tragedies in the Mediterranean: are there any?
29. I hope that one day the details will come to light
so that appropriate lessons can be drawn from this tragic failure
to act. In the meantime, I stand by my conclusion that one State’s
vessel under the command of NATO must take responsibility. I trust
that this will be fully taken into account in any lessons learned
exercises. National and international initiatives have given some
food for hope, yet there’s a long way to go until deaths and push-backs
are fully stopped in the Mediterranean.
In July 2012, in execution of the judgment of the
European Court of Human Rights in Hirsi
Jamaa and others v. Italy
the Committee of Ministers that its bilateral agreement with Libya
for the return of migrants intercepted at sea had been suspended
in the wake of the 2011 conflict. The government underlined that
any individuals intercepted in the future would be taken to special
centres in Italy to assess their situation in full respect of their
rights under the European Convention on Human Rights (ETS No. 5).
it was not clear if this also meant that Italy respected the maritime
rule that each request for help should be followed up immediately.
31. The change in the Italian Government in April 2013 raised
hopes for a resolution of the problem in line with international
human rights and refugee law. The appointed Prime Minister, Enrico
Letta, expressed shame at the harsh immigration laws brought in
by the previous coalition government, including those intended to dissuade
people from helping vessels in trouble. Political realities, on
the other hand, it was said, made their repeal difficult. Then 2013
and 2014 saw another upsurge in boats arriving from the African
coast. The new Italian Prime Minister, Matteo Renzi, appointed in
February 2014 confirmed that the Mediterranean would be at the heart
of the priorities of the Italian presidency of the European Union.
On 3 October 2013, a boat that had set off from Libya packed
with more than 500 Eritrean and some Somali men, women and children
caught fire and capsized off Lampedusa. Only 155 people survived;
some 366 bodies, men, women and children, were later recovered.
Incidents were now occurring on a regular basis, but a tragedy of
such magnitude provoked universal shock and horror and could not
be ignored. I called for an immediate investigation into allegations
that fishing or other boats failed to go to the rescue of drowning persons
off the island of Lampedusa.
Just one week later, on 11 October 2013, another stricken
vessel sank 65 nautical miles south-east of Lampedusa, in an area
where Malta has SAR responsibility. The boat sank because Libyan
soldiers had shot holes in it, in order to prevent it from leaving
Libya. It seems that at least 34 people died.
In the end, both Italian and
Maltese SAR teams came to the rescue and managed to save more than
200 Syrian refugees. But delays were reported in their going to
the assistance of the sinking boat.
34. These delays once again appeared to be the result of, in the
first place, a back and forth between Italy and Malta over who should
take responsibility for the rescue and, in the second, that the
rescue signals sent out did not have the urgency needed to trigger
immediate assistance. Sadly, if the failures identified more than a
year ago had not been repeated, possibly many more lives could have
Noting the urgent need to tackle the situation while European
discussions were still ongoing, Italy launched Operation Mare Nostrum
which, according to
Former Defence Minister, Mario Mauro, is a “humanitarian operation”
to “save human lives”, as well as a “security” operation.
18 October 2013, Italy tripled its naval and air units working in
the Straits of Sicily.
the operation has been successful in saving thousands of lives since
it was launched, it will be short-lived unless Europe manages to
provide the means to make it sustainable. Other southern States
including Greece, Portugal, Spain and Malta, have also called for
greater support from the European Union in patrolling the Mediterranean.
36. Since Mare Nostrum, Italy
seems to have adopted a new approach and has interpreted “distress situation”
in a very broad sense and provided prompt rescue. However, the Italian
replies to my questions imply that Italy doesn’t admit that according
to maritime law States have to act immediately upon distress calls, regardless
of whether the request comes from the State’s SAR zone or another
SAR zone. The obligation to co-ordinate or start a rescue action
only comes to an end if the responsible SAR authority has taken
over this task. The reasoning behind this maritime rule is simple:
every minute counts when lives are at stake at sea. Italy should
admit that the maritime rules impose an immediate action to every
distress call, no matter where the call comes from.
37. No-one could now deny that meaningful steps needed to be taken
urgently, and yet little attention was paid to what became of the
survivors of these disasters. In January 2014, it was revealed that
a number of them were held in a reception centre on Lampedusa for
more than 100 days. This was a basic and often hugely overstretched
first-tier reception centre where new arrivals were supposed to
spend no longer than 48 hours. The Office of the United Nations
High Commissioner for Refugees (UNHCR) protested to judicial authorities over
what it said amounted to a prolonged detention of people in urgent
need of assistance. MP Khalid Chaouki, who spent Christmas inside
the centre, said the contrast was strong between the treatment given
to the survivors of the 3 October disaster and the torrent of expressions
of solidarity immediately after it. The UNHCR demanded that the
Italian authorities ensure the situation never happens again. Today,
the centre in Lampedusa is being renovated, and no migrants are
currently being kept on the island.
38. In August 2013, the Italian authorities asked two
commercial ships, the MV Salamis and
the Adakent, to go to the
aid of two groups of migrants in distress off the Libyan coast –
Libya still being unable to take responsibility for its SAR zone.
The Adakent was instructed
directly by the Libyan authorities, and the MV Salamis by
the MRCC Rome on behalf of the Libyans, to transport the migrants
back to Libya and disembark them in the port of Tripoli. The Adakent did as instructed. After
rescuing 102 migrants from a boat about 45 nautical miles off the
Libyan coast, the MV Salamis,
a Greek-owned tanker, however, refused to return them and instead
continued on its route to Malta. The Government of Malta informed
the tanker’s captain that he would not be allowed to disembark the
migrants in Malta, and as the Salamis approached
the island, the armed forces of Malta blocked it. The ship found
itself at an impasse as Italy and Malta both refused to disembark
On 6 August 2013, European Commissioner Malmström ordered
Malta to allow the migrants to disembark in view of the urgent humanitarian
needs of the passengers. This did not happen. Malta’s National Security
Minister stated: “As a sovereign State, we cannot give in to the
barefaced breach of international law by this captain.”
Attorney General wrote to the local agent of the tanker holding
him responsible for any damages Malta might suffer as a consequence
of these events. After three days of impasse, on 7 August, the Italian
authorities accepted to allow the Salamis
disembark the 102 migrants in the port of Syracuse.
40. These cases raise two very troubling issues. Firstly, that
the migrants were being given no chance to claim asylum and were
being put at risk of being returned to a dangerous situation; the
Libyan coast from which they had sailed could not have been considered
for them a “place of safety” within the meaning of the 1979 International
Convention on Maritime Search and Rescue (SAR Convention). Secondly,
being stalled at sea for several days not only threatens the health
and well-being of the rescued migrants, but has also a damaging economic
impact for the commercial vessel. These delays in disembarkation
therefore increase the risk that private boats become more hesitant
when it comes to rescuing migrants at sea.
In November 2013, the NGO ProAsyl reported about
the fatal consequences of the closing of the land border in the
Evros region of Greece, which, after August 2012, led to a shift
in flight routes to the Aegean Sea route, and reports of illegal
push-backs of refugees from Syria, Afghanistan, Somalia and Eritrea
increased, from Greek territorial waters, the Greek islands and
from the land border.
The report describes how those apprehended
are ill-treated before being deported back to Turkey. Amnesty International
Rights Watch (HRW) have also interviewed refugees who have had similar
experiences. Special units of the Greek coastguard, the ProAsyl
report says, abandon refugees in Turkish territorial waters without
consideration for their safety: at least 149 people, mostly Syrian
and Afghan refugees, have lost their lives in this stretch of water.
Since the beginning of 2014, at least 43 people have died
trying to reach the Greek coasts. On 20 January 2014, nine children
and three women lost their lives when their vessel sank near a Greek
island while being towed by the Greek Coast Guard.
Faced with mounting criticism from, among others, the Council
the UNHCR, NGOs and political parties, as well as European Commissioner
Malmström and the Greek Minister of Shipping, Militiadis Varvitsiotis,
ordered a judicial probe into the incident. Although the independence
and impartiality of such an investigation is of crucial importance,
the lack of transparency makes it impossible to monitor the investigation and
the methods used. NGOs have urged the minister to lift the boat
and to search for the drowned bodies.
In addition, during a meeting in February this year with the
UNHCR and NGOs working in Greece, I was informed about numerous
signals and evidence that Greece is practicing push-backs to Turkey
on a structural basis.
have expressed my concerns to Minister Dendias about these allegations
from reliable sources. As this would mean a serious violation of
a thorough investigation into these incidents is urgently needed.
Nevertheless, more deaths at sea have been reported since then:
to Amnesty International, they are the result of further attempts
by the Greek authorities to push migrants back to Turkey.
The sealing of the land border between Greece and Turkey was
carried out in co-operation with the European Union and the European
Agency for the Management of Operational Cooperation at the External Borders
of the Member States of the European Union (Frontex). “These are
European borders, managed with European money, and with the support
of Frontex,” said the European Council on Refugees and Exiles (ECRE) Secretary
General Michael Diedring. “The EU has a responsibility to take all
measures needed to ensure that life is given priority and fundamental
rights are respected at its borders.”
Having assumed the presidency
of the European Union in January 2014, it is all the more important
that Greece shows proper leadership in this regard.
4. A European policy
on migration, asylum and the duty to rescue in the Mediterranean
During the presentation of my findings to the European
Parliament, I proposed that the Parliament should take the initiative
for what I called a “pact on the Mediterranean’, meaning an EU protocol
for the Mediterranean region, tackling the various factors that
cause rescuing and protection gaps. The failings I addressed in
my report still occur. It is a missed opportunity that the European
Parliament did not follow up my suggestion to propose this pact.
Instead, it left it up to the European Council after the recent
catastrophes. The proposals of the EU Task force Mediterranean (TFM),
set up in October 2013, offer member States some tools and methods
to improve their policy and practice, but a pact formulated by the
EP might have been stronger on human rights and less security oriented.
it is not too late for the EP to make sure that the EU response
guarantees compliance with fundamental rights.
4.1. Will European action
match its words?
The European Council discussed migration flows at
its meeting of 24 and 25 October 2013.
deep sadness at the dramatic deaths of hundreds of people in October
2013 in the Mediterranean Sea near Lampedusa, which, it said “shocked
all Europeans”, the Council agreed that determined action should
be taken in order to prevent the loss of lives at sea and to avoid
such human tragedies happening again. It welcomed the setting up
of the TFM with the purpose of developing a range of measures to
be taken in this respect. The TFM, chaired by the European Commission,
met twice, with participants including the European External Action
Service, member States, the European Asylum Support Office (EASO),
Frontex, Europol, the Fundamental Rights Agency of the European
Union (FRA) and the European Maritime Safety Agency (EMSA).
reported to the European Parliament and European Council in December
48. The TFM set out some 38 operational activities to be followed.
All of these, the communication says, “will have to be fully compliant
with international human rights standards”. Yet, the emphasis throughout
is on preventing persons from attempting to enter the European Union
through irregular channels, from putting their own lives at risk
by undertaking dangerous journeys towards Europe. The proposed measures
range from strengthened co-operation with the neighbouring transit
countries (on border controls, readmission, the combat against smuggling
and trafficking and access to asylum) and a strengthened role for
Frontex to the exploration of further possibilities for “protected
entries” into the European Union for persons in need of international protection.
49. The TFM urged in particular the member States to make more
use of humanitarian visas and relocation or resettlement programmes,
but also proposed to carry out a feasibility study on joint processing
outside the European Union without prejudice to the existing right
of access to asylum procedures in the European Union. Most of the
member States however rejected the idea of a more proactive invitation
policy. Commissioner Malmström stated at an inter-parliamentary
meeting in Athens, in February 2014 that she could not start a pilot on
joint processing outside the European Union, as member States were
not prepared to accept and admit those who would be recognised refugees.
Yet, the proposals of the Commission to create protected entries
to Europe for those in need of international protection need to
be embraced urgently to show adequate signs of solidarity with the neighbouring
countries of conflict regions (especially now Lebanon, Jordan and
with refugees, who fear for violence and forced returns and are
thus ready to risk a dangerous journey to a safer place. The use
of Evacuation Transit Centres could help process the cases to Council
of Europe member States or non-European countries.
The Communication of the TFM addresses the problem of low
human rights standards in transit countries, but it does not propose
to first require an adequate protection level (regarding non-refoulement
, access to asylum
and protection mechanisms, non-discrimination, access to services
and dignity) before co-operation on migration with these countries
is allowed. The need for this requirement was already stressed by the
United Nations special rapporteur on the human rights of migrants,
I welcome the two mobility partnerships concluded with Tunisia
and Morocco, and the one being negotiated with Jordan, in the context
of the Global Approach to Migration and Mobility (GAMM). The GAMM consists
of four pillars: legal migration and mobility; the impact of migration
on development; combating irregular migration and human trafficking;
international protection and asylum policy. This co-operation with third
countries has been criticised for resulting in even harsher policies
towards migrants in the transit countries, while these countries
have gained an interest in avoiding responsibility for migrants
and in making sure that migrants don’t reach the EU borders.
In order to
avoid these perverse incentives, the pillar on “international protection
and asylum policy” should be given priority. The establishment of
a sufficient protection level should serve as a condition for the
co-operation on the other three pillars. Furthermore, the GAMM should aim
at sharing the responsibility for refugees and therefore also create
secure legal avenues to Europe for those seeking protection,
Furthermore, the Dublin-regulation de facto
discourages the southern
member States from improving their standards on reception and procedures
for asylum seekers, and thus threatens the aim of a Common European
Asylum System. In its proposal on the post-Stockholm programme,
the Commission put forward the creation of a uniform asylum status.
Such a status would reinforce the mutual
trust in national asylum decisions, but also facilitate intra-EU
mobility. This right to mobility offers refugees and subsidiary
protected persons the opportunity to choose their place of settlement,
creating a natural type of solidarity.
54. At the same time, the European Union could improve and further
harmonise the application of the asylum acquis by
starting a pilot project on joint processing inside the European
Union, by offering sufficient support to member States who currently
lack adequate protection standards and by encouraging the European Commission
to start infringement procedures.
55. To what extent the proposals of the TFM will be adopted and
how they serve to reduce the risk of further tragedies, still remains
to be seen. Moreover, the Council put off further discussion of
asylum and migration issues until June 2014.
4.2. A strengthened
role for Frontex and EUROSUR
56. The TFM called in particular for increased support
and assistance to member States in the region and reinforcement
of Frontex activities in the Mediterranean.
57. “Swift implementation by member States of the new European
Border Surveillance System (EUROSUR) will be crucial,” the Council
concluded in October, “to help detecting vessels and illegal entries,
contributing to protecting and saving lives at the European Union’s
external borders”. This became operational as of 2 December 2013
with an estimated cost of 244 million euros until 2020.
58. “Reinforcement of Frontex-co-ordinated border surveillance
operations by member States’ airborne and naval military assets
… can also improve situational awareness and the capacity for early
detection of irregular migrants at sea, thus enabling more effective
prevention of loss of life.” The TFM further proposed to intensify the
monitoring of known departure points for irregular migration in
the whole of the Mediterranean, including parts of the coast that
serve as hubs for irregular migrants.
59. It can however be doubted whether more exchange of information
will lead to more search and rescue actions. My report gives reason
for some scepticism as it has clearly shown that the knowledge of
the distress call and the location of the left-to-die boat did not
lead to search and rescue. If the lack of political will is not tackled,
the increase of information could also have the opposite effect,
namely more deterrent actions or even push-backs.
Moreover, if it is sincerely intended to protect and save
lives, as well as prevent irregular migration and tackle cross-border
crime, EUROSUR needs to operate on the basis of clear, binding and
enforceable standards on the rules of engagement with respect to
detection, interception, rescue operations and disembarkation; a
wider concept of distress consistent with the EU Frontex rules,
agreed criteria for determining where people who are rescued will
land, consistent with the right to seek asylum; and a clear commitment
to respect the rights of migrants and asylum seekers. In order to
improve its accountability and in line with the recommendation of
the EU Ombudsman, Frontex should establish an effective mechanism
for individual complaints of violations of fundamental rights.
The regulation on Frontex-co-ordinated sea border operations
which was adopted by the Council of the European Union on 13 May
2014 will partly fill these gaps.
regulation however only applies to these joint operations, therefore
I recommend applying the norms in this regulation to all SAR actions
by individual member States and making sure that the individual
assessment on safe return to a third country, which cannot be made
properly on high seas, takes place on EU territory.
62. Moreover, the new regulation will not be limited to the detection
of attempts at irregular border crossing but equally extends to
the interception of ships suspected of trying to gain entry to the
European Union without submitting to border checks, as well as the
search and rescue during a sea operation.
63. I welcome in particular the efforts of the European Parliament
to define clearly in the Regulation the concept of a “vessel or
persons on board in a phase of distress”. The rules state that “Member
States shall observe their obligation to render assistance to any
vessel or person in distress at sea”. I nevertheless call on Frontex
to ensure that the margin for interpretation of the line drawn between
the phases of alert and distress and possible errors are accompanied
by appropriate safeguards.
Frontex’s operational plan, which shall be carried out in
accordance with international law and fundamental rights
should also “include procedures
ensuring that persons with international protection needs, victims
of trafficking in human beings, unaccompanied minors and other vulnerable
persons are identified and provided with appropriate assistance,
including access to international protection”. This assessment,
however, can take place during the operation at sea. It can be questioned
if this can be defined as a meaningful assessment, if important
safeguards such as legal aid are not in place, let alone an effective remedy
against a negative decision. Despite the gaps with regard to sufficient
guarantees, the regulation allows Frontex and the member States
to let a migrant disembark in a third country.
65. The new Frontex rules recall the need for “co-operation with
neighbouring third countries … to prevent unauthorised border crossings,
to counter cross-border criminality and to avoid loss of life at
sea”. While efforts will be made to strengthen the capacity for
SAR in North Africa, at present these capacities remain weak. It
will therefore be essential at least in the short term that European
Rescue Coordination Centres are immediately contacted when boats
in distress at sea are identified in order to get rescue operations
under way as soon as possible. Looking back to the experience of
2011 with regard to the Libyan SAR zone, the importance of clearly delineating
responsibilities in such circumstances becomes immediately apparent.
4.3. Calls for solutions
to the Mediterranean tragedies
66. A large number of NGOs, international and local,
have continued to follow this issue in all its aspects, pursuing
individual initiatives as well as working in coalition to strategise
collectively and bring pressure to bear in Brussels and in the countries
concerned. Many exchange information under the umbrella of Boats
for People and through the web site Watch the Med and projects such
as The Migrants Files. Their commitment to these issues and untiring
work deserves recognition.
Soon after the October 2013 tragedies, the UNHCR called for
immediate strengthening of the central Mediterranean’s search and
rescue at sea capabilities. In a proposal for a Central Mediterranean
the UNHCR addressed those gaps it saw remaining
as regards responsibilities for disembarkation. “Differing views
on disembarkation are directly linked to the question of which State
or States would carry longer-term responsibility for the provision
of asylum.” It called for the reinforcement of SAR patrols along Mediterranean
routes, greater practical co-operation between EU member States
and support from the International Maritime Organisation (IMO),
support for shipmasters of commercial vessels carrying out rescues,
and further guidance for shipmasters
and within Frontex operational
plans on what constitutes a distress situation.
68. Amnesty International continued to press for answers in relation
to the Salamis and Adakent incidents as well as the
October 2013 and more recent shipwrecks. It has issued public statements,
published papers and news releases on how the European Union could
best avoid further loss of lives, and has focused attention on “push-backs”
and the need for Europe to stop “outsourcing” migration to places
such as Libya and Egypt, where there are no human rights safeguards.
Human Rights Watch has issued a number of publications on
migrant deaths in the Mediterranean and set out concrete recommendations
on how Europe should respond. Among others, the European NGO Platform
on Asylum and Migration, comprising some 26 Europe-based NGOs, looking
ahead to the discussions put off until June 2014, has prepared a
statement setting out key priorities for the future of European
migration and asylum policy.
5. Steps to be
70. The lessons learned process of this report highlights
further specific steps which still remain to be taken by member
States, NATO and the IMO.
5.1. Improving NATO
71. NATO expressed its deep concern over the reports
of migrants dying at sea and reaffirmed that ships under its command
would always respond to vessels in distress, as is their duty under
the law of the sea. The Assembly’s report, it confirmed, was being
used as input into a lessons learned process aimed at making improvements
in working methods such that loss of life could be avoided in future.
72. The NATO-led Operation Unified Protector, which had a number
of ships in the Mediterranean Sea in March/April 2011, came to an
end in October 2011. Currently, the Organisation has a Standing
NATO Maritime Group (SNMG) in the Mediterranean. One would trust
that the SNMG, and any future operations, will adjust their procedures
in light of the conclusions of this exercise.
NATO explained that not all military vessels have the Global
Maritime Distress and Safety System (GMDSS), in any of its versions,
or have the means to receive Hydrolant distress messages. As long
as this is not obligatory, it is unlikely that they will have it.
Nonetheless, such ships would have sophisticated communications
equipment that would permit reception of distress signals. The IMO,
which is the UN agency responsible for safety at sea, including
oversight of the SOLAS
SAR Conventions, had in 2010 launched a scoping exercise to establish
whether there was a need to review the Global Maritime Distress
and Safety System (GMDSS) and in what respects.
5.2. Clarifying responsibilities
in search and rescue
74. In investigating the incident of March-April 2011,
I was confronted with major conflicting opinions as to who was considered
to have primary responsibility to react to distress calls. In subsequent
incidents, this always appeared to be a critical contributing factor.
In seeking clarification of a number of key questions I had identified,
I continued to receive referrals back to NATO by individual member
States, and referrals back to the member States by NATO. To my mind,
there was no clear allocation or acceptance of responsibility, at
least insofar as human rights obligations were concerned.
75. Disagreements between Malta and Italy – the one geographically
closer to effect a rescue, the other having primary responsibility
for the zone in question – appear to continue to arise regularly,
resulting in long delays in any intervention. Coordination between
the SAR operations needs considerable improvement if lives are to
be saved and I expect Italy to make good use of its presidency of
the European Union during the next term to show political will in
settling such quarrels with Malta.
76. As EUROSUR now begins its operations to improve surveillance
and co-ordination among EU member States in the Mediterranean, it
is crucial to set out clearly where primary responsibility for action
resides within the EUROSUR network and between the national co-ordination
77. It is important to know to what extent the EUROSUR system,
with its national co-ordination centres for border surveillance,
will safeguard swift and adequate responses to migrants in distress
in the Mediterranean Sea and guarantee full accountability of the
78. Furthermore, the Regulation on Frontex-co-ordinated sea border
operations contains certain rules on interception, distress calls
and disembarkation. I reiterate that the rules could fill certain
gaps if member States applied them to national interception and
5.3. Encouraging search
and rescue by private vessels
In this respect, it is essential to allay fishermen’s
fears that they may get into trouble if they rescue migrants. Yet,
the national legislation in some member States, which penalises
the support of irregular entrance, has not yet been repealed.
This means that private companies
or persons, who help migrants in distress at sea, may still face
prosecution. This legislation should be abolished as soon as possible.
In its December 2013 communication, the European Commission’s
TFM proposed that a call should be issued at the national level
urging shipmasters of merchant vessels and fishermen to comply with
their obligations under international law (UNCLOS, SOLAS and SAR
Conventions), to assist and report to the relevant authorities of
the member States any migrant boats in distress. This, the TFM said,
should be coupled with a public reassurance that the migrants will
always be allowed to disembark rapidly, and that, “provided they
are acting in good faith, they would not face any negative legal
consequences for providing such assistance”.
The recent Frontex rules promote the protection
of shipmasters and crew from “criminal penalties for the sole reason
of having rescued persons in distress and brought them to a place
In its 2012 resolution, the Assembly had additionally highlighted
the need to deal with the economic consequences for the rescuing
vessel and its owners. The case of the MV
, reported above, provides a very clear illustration
of how prohibitive these costs can be for the individual concerned.
The FRA recommended that EU member States should explore ways to
support private vessels, in particular fishing vessels, when they
face economic losses through their involvement in rescue operations.
The issue of compensation
for such vessels does not appear to have been addressed by the TFM.
5.4. Safeguarding the
The above cases illustrate how, even very recently,
and despite assurances to the contrary made to the Committee of
Ministers and others, member States continue to effect push-backs.
83. For the Council of Europe, the issue is clear. In accordance
with the judgment of the European Court of Human Rights in the case
of Hirsi Jamaa and others v. Italy,
member States must ensure that people are not pushed back to a country
where they risk being treated in violation of Article 3 of the European
Convention on Human Rights. This is in addition to the States’ obligation
under the SAR Convention.
84. Since a great number of those intercepted can be presumed
to be in need of protection, the place to which they are taken should
also allow for them to be able to seek asylum. At the moment, this
is definitely not guaranteed in countries such as Libya or Egypt.
Moreover, even in Turkey, non-European asylum seekers face difficulties
in getting access to protection because of the geographical limitation
Turkey maintains with the 1951 Geneva Convention relating to the
Status of Refugee.
85. Member States should cease any readmissions, even in the framework
of the Dublin Regulation, should the conditions in the country of
readmission not be sufficiently protective of the people’s human
rights and their right not to be sent back to a country where they
would face persecutions or inhuman and degrading treatment. The
case of the agreement between Italy and Libya is a clear example
as it prevents migrants from leaving Libya (where their human rights
are seriously violated) and getting access to protection in Europe.
86. The new Frontex rules allow for returns to third countries
of people intercepted on the high seas following a cursory assessment
of protection needs and the situation in the country to which they
would be returned. According to HRW, such interceptions and push-backs
only contribute to the continuing cycle of migrants and asylum seekers
attempting the dangerous crossing.
5.5. Tracing the dead
and restoring family links
87. The Council of Europe Commissioner for Human Rights
had already in 2007 called for the identification of those migrants
who die or disappear at sea. In its 2009 Stockholm Declaration,
the European Union made a commitment to improve the recording and
identification of migrants trying to reach Europe. Yet until recently this
issue had been the subject of little public discussion.
88. While considerable effort is put into identifying those who
succeed in reaching the European shores, for the purpose of immigration
regulation and asylum determination, it seems that little action
is taken by member States in regard to those who do not. So many
individuals continue to perish and their families are unaware of what
has become of them. Few families are in a position to pursue the
matter themselves. In some cases, the country of origin, if alerted,
might use the information to put family members still at home under
pressure. This exercise must therefore be handled with utmost care
89. In November 2013, the International Committee of the Red Cross
(ICRC), together with the Italian Red Cross and Milan University
took up the issue, convening a First Conference on the management
and identification of unidentified decedents, with an emphasis on
dead migrants: the experience of European Mediterranean countries.
The purpose was to raise awareness about this humanitarian tragedy,
share information about current practices in Italy, Spain, Greece,
Malta, France and Portugal, and promote best practices at national
and regional levels.
90. I support the ICRC’s recommendations to develop common forensic
protocols and standards, along with the creation of a European database
of unidentified decedents retrieved from the Mediterranean and of
missing persons. Information should be easily available to the families
of victims, in order for relatives to come to terms with the loss.
91. The ICRC’s activities have generally been related to collecting
the Tracing Requests by the relatives in order to try to re-establish
the link between separated members of a family. In this context,
I support ICRC’s recommendation for authorities to maintain and
restore family links. “Secondary separation” of family members during
rescue operations or at a later stage, for medical reasons for example,
should be avoided. If this is not possible, families should be informed
of the whereabouts of their relatives.
92. For the Council of Europe this is an important issue. Were
these people to have died in battle or on land, all efforts would
be made to identify them and notify their families. It cannot be
that their situation as irregular migrants excludes them from equal
5.6. Monitoring maritime
93. The IMO should take a role in disseminating and promoting
the proper application of maritime law. The IMO informed me that
oversight of its conventions, hitherto voluntary, would become mandatory
from January 2015, with a
view to guaranteeing better implementation of IMO instruments. However
as these audits will be limited to checking whether the national
implementing systems are in place, the actual application of the
rules will not be audited. It is recommended that the member States
of the IMO extend its mandate in this regard.
On 1 July 2006, amendments to the SOLAS and SAR Conventions
entered in force, placing obligations on States to co-operate and
co-ordinate with a view to disembarking persons rescued at sea at
a place of safety as soon as possible. This still causes excessive
delays in letting people go ashore. The 2004 IMO Guidelines on the
Treatment of Persons Rescued at Sea defines – unlike the SAR Convention
– “a place of safety”,
the need for governments and responsible RCC to “make every effort
to minimise the time survivors remain aboard the assisting ship”.
95. Yet, a clear duty for member States to disembark the persons
rescued is still missing. Moreover, the IMO guidelines are not binding
and States such as Malta have not accepted them and still distinguish
between a safe place in terms of SAR and a safe place in terms of
humanitarian law. The Salamis incident
illustrates well how weak the International and EU legal framework
still is regarding member States’ disembarkation duties.
As I was informed in a letter from the IMO of 7 February 2012,
the IMO took the initiative to help draft a non-binding memorandum
of understanding on procedures to facilitate the disembarkation
of the persons rescued in the Mediterranean Sea.
objective is to improve the co-ordination of participating governments with
regard to the provision of suitable ports or places of safety for
survivors, as quickly as possible. It would not create further obligations
on State Parties. In June 2013, in further correspondence, the IMO
said that the consideration of a regional memorandum of understanding
had not yet been successful and that the drafting was still ongoing.
97. It is highly recommended that the IMO further mediates between
Malta and Italy to achieve an agreement, through a bilateral memorandum
of understanding for instance, on the SAR and disembarkation responsibilities.
Between 2009 and 2010 memoranda of understanding on SAR regions
and on co-ordination of SAR services were already signed by Italy
and some of its Mediterranean neighbours (Croatia, Greece, Albania,
Slovenia) and notified to the IMO. The achievement of a similar
agreement between Italy and Malta would certainly be a highly important
and promising step. The European Union should consider how to facilitate and
promote the accomplishment of this bilateral memorandum of understanding.