Report | Doc. 14971 | 01 October 2019

Saving lives in the Mediterranean Sea: the need for an urgent response

Committee on Migration, Refugees and Displaced Persons

Rapporteur : Mr Domagoj HAJDUKOVIĆ, Croatia, SOC

Origin - Reference to committee: Bureau decision, Reference 4474 of 30 September 2019. 2019 - Fourth part-session

Summary

Over the last six years almost 20 000 people died on their dangerous journey across the Mediterranean Sea. Despite a dramatic fall in the numbers of migrants attempting to enter Europe, the death-toll remains tragic and the situation still qualifies as an “emergency”.

Following on from a first urgent debate on the “International obligations of Council of Europe member States: to protect life at sea” held in June 2018, this report prepared under urgent procedure takes stock of the present situation of refugees and migrants risking their lives as they try to cross the Mediterranean, and on the effectiveness of member States policies aimed to cope with these migratory flows. The Parliamentary Assembly asks the European Union to step up its revision of directives on asylum procedures and regular migration, and member States to support current initiatives to better organise solidarity and sharing of responsibilities for reception, resettlement and integration of refugees and asylum-seekers in Europe. The report highlights recommendations and proposals by member States, the Council of Europe Commissioner for Human Rights and the United Nations High Commissioner for Refugees.

A. Draft resolution

(open)

1. The Parliamentary Assembly has been drawing attention to the tragedy playing out in the Mediterranean Sea since its Resolution 1872 (2012) on “Lives lost in the Mediterranean Sea: who is responsible?”. Other texts followed, in particular Resolution 1999 (2014) “The left-to-die boat: actions and reactions”, Resolution 2000 (2014) on the large-scale arrival of mixed migratory flows on Italian shores, Resolution 2050 (2015) “The human tragedy in the Mediterranean: immediate action needed” and Resolution 2088 (2016) “The Mediterranean Sea: a front door to irregular migration”. The Assembly held an urgent debate on “International obligations of Council of Europe member States: to protect life at sea” on 27 June 2018 and has adopted several other texts which refer to the situation in the Mediterranean Sea and the need to find remedies.

2. The Assembly continues to be appalled by the high number of lives lost in the Mediterranean Sea by asylum seekers who are trying desperately to reach Europe on makeshift boats. It calls on member States to respect their international obligations and co-ordinate their efforts to protect lives at sea. Although migratory flows have now decreased to a fraction of the numbers recorded in 2015, the situation can still be described as an emergency. In the case of Greece, for instance, the number of migrants has increased by 150% over the past few months. Over the past six years, almost 20 000 persons have perished during their perilous journey across the Mediterranean. This situation is untenable and should be remedied without further delay. The Assembly welcomes the emerging agreement of some European Union member States on the relocation of people rescued at sea by non-governmental organisations and others, and urges more countries to join this agreement. Likewise, it calls on all European Union countries to accept their responsibilities and welcomes the readiness of the Mediterranean States to co-operate.

3. The European Union’s successive Triton and Sophia sea and (now only) air operations, resulted in a reduction of nearly 32% of arrivals on the Italian coasts between November 2016 and November 2017 and have saved over 200 000 lives since 2014. However, the European Union’s continued priority given to border control and the tendency to promote the processing of asylum claims to countries and regions outside its frontiers have not yielded convincing results, and may be said to have increased the risks to which refugees and asylum-seekers are exposed and indeed, to which they expose themselves in their efforts to reach safety.

4. The Assembly welcomes the commitment of non-governmental organisations but insists that it is the duty of States not to let people drown in the Mediterranean. In the light of the continued denial of the basic human rights of migrants in the Mediterranean, in an effort to avoid further tragic deaths and to provide the right of access to international protection and asylum procedures, the Assembly urges member States to:

4.1. place the rescue of men, women and children in the Mediterranean above political and other considerations and as an imperative for respect of the universal principles underlying respect for human life and assistance to people in mortal danger;

4.2. devote special attention to assistance for vulnerable migrants such as children, women, disabled persons and those in need of particular medical or psychological support;

4.3. to launch a new European Union rescue mission. The Assembly welcomes the commitment of NGOs, but it is the duty of States not to let people drown in the Mediterranean;

4.4. in line with the Council of Europe’s Convention on Action against Trafficking in Human Beings (CETS No. 197), take united action to stop trafficking in human beings, and combat people smuggling in co-operation with other international organisations;

4.5. respect the terms of international conventions, in particular the International Convention on Maritime Search and Rescue as well as the Protocol against the Smuggling of Migrants by Land, Sea and Air to the United Nations Convention against Transnational Organized Crime (Palermo Protocol);

4.6. ensure respect for the principle of non-refoulement, in particular in the context of joint or “aggregate rescue” operations, where the prohibition of refoulement cannot be collectively evaded under the obligations stemming from refugee law and the European Convention on Human Rights (ETS No. 5);

4.7. for those countries concerned, contribute to the implementation of the United Nations Global Compacts on Safe, Orderly and Regular Migration and on Refugees;

4.8. support all proposals aimed to implement more efficient relocation and thus share responsibilities for migration management;

4.9. ensure that these initiatives are taken in full respect for the principles set out by the Assembly in its previous resolutions and recommendations, as well as those of other Council of Europe entities, in particular the Commissioner for Human Rights in her recommendation on “Bridging the protection gap for refugees and migrants in the Mediterranean” of June 2019;

4.10. further ensure that any action taken is in line with the standards and principles proposed by international partners, such as the joint United Nations High Commission for Refugees /International Organization for Migration 2018 joint proposal for a Regional Disembarkation Mechanism;

4.11. as stated in previous Assembly texts, allow non-governmental organisations to carry out their life-saving missions in the Mediterranean Sea, recognising their capacities to organise rapid-reaction rescues, and refrain from stigmatising the work of NGOs;

4.12. in particular, ensure that captains of all vessels rescuing migrants and refugees in the Mediterranean are able to disembark them in the nearest port of safety (as provided for by international maritime law), and that once rescued at sea, migrants are brought to safe places of reception where their basic needs are provided for by adequate living conditions, appropriate conditions to uphold the right to apply for asylum and for asylum procedures to be dealt with efficiently. Specific attention should be given to the care and conditions of children, and the provision of child-friendly support and information;

4.13. increase regular and legal routes to Europe through resettlement programmes, humanitarian visa and swifter family reunification procedures, inter alia, so that people may apply for these rather than embarking on the irregular and deadly journey across the Mediterranean;

4.14. terminate training, financing and equipping as well as the logistical support for the so-called Libyan Coast Guard by the EU and its member States.

5. The Assembly also urges the European Union to accelerate its work on revising the Dublin Regulation, on agreement and standards for safe third countries, without undue concentration on the externalisation of asylum processing. It recommends that future European Union presidencies give greater priority to putting an end to unnecessary deaths in the Mediterranean Sea and build on current positive debate among member States willing to share the responsibilities for reception and integration of refugees and asylum-seekers, so as to ensure equal sharing of responsibilities among member States.

B. Explanatory memorandum by Mr Domagoj Hajduković, rapporteur

(open)

1. Introduction

1. A year ago, at its June 2018 part-session, following a proposal by the Socialists, Democrats and Greens Group (SOC), the Parliamentary Assembly decided to hold a debate under urgent procedure on “International obligations of Council of Europe member States: to protect life at sea”. Ms De Sutter was designated as rapporteur and the report was debated on 27 June.

2. The Socialist Group proposed a new debate on the subject on 29 September 2019, for which I was designated as rapporteur. I was indeed extremely interested in working on this subject, certain aspects of which I already addressed in the report I prepared in 2018 on the extra-territorial processing of asylum claims and the creation of safe refugee shelters abroad.

I am also currently preparing a report on the rights and obligations of NGOs assisting refugees and migrants in Europe, which has obvious connections to the present report.

3. This new report is motivated first and foremost by the persisting tragedy still playing out in the Mediterranean Sea, with new deaths reported daily by the media and international organisations, the continuing degradation of human lives through trafficking and smuggling, the extension of the maritime “danger zones” to new areas and the stigmatisation of NGOs, all of which have been described and denounced in the Assembly’s previous adopted texts.

4. Secondly, the Council of Europe as a defender of human rights throughout Europe should continue to take a prominent stance with respect to migration issues, and the Assembly is best placed to provide an overview and call for more action, drawing attention to the need to respect the provisions of the European Convention on Human Rights (ETS No. 5) and to implement the recommendations made by bodies such as the Council of Europe Commissioner for Human Rights and the Special Representative of the Secretary General for Migrants and Refugees.

5. Thirdly, this report comes at a time where, despite the persistent very negative context, recent developments show signs of a more concerted will on the part of European Union and Council of Europe member States collectively to find strategies for the effective management of migratory flows, for reducing the atrocious death-toll at sea, and to ensure decent and fair treatment of migrants forced to leave their countries in order to survive. New proposals, recommendations and guidelines have also been made by international organisations aimed to assist European States in better managing the reception and protection of migrants travelling to Europe, which should be welcomed, promoted and possibly combined to form a strong basis for collective action.

2. The current situation in the Mediterranean

6. The 2018 urgent debate was prompted by the refusal of governments of Italy and Malta to allow entry to their national ports for the two ships (which had both rescued asylum seekers off the coast of Libya), MS Aquarius (operated by SOS Méditerranée and owned by the German NGO Sea Watch) and the subsequent refusal of entry to MS Lifeline (operated under the Dutch flag by the German NGO Mission Lifeline). These refusals continued into 2019, in particular with the refusal of access to over 300 people rescued by the Médecins Sans Frontières/SOS Méditerranée Ocean Viking in August, finally able to disembark in Malta after two weeks at sea after an agreement to relocate. After several such incidents and following changes in political attitudes, especially in Italy, there appears to be renewed hope that sea rescues will be followed by rapid reception and better conditions, although insufficient means are still allocated for decent accommodation facilities.

7. According to United Nations High Commissioner for Refugees (UNHCR), 59 503 migrants have arrived in Europe by sea so far in 2019.

However, during the summer of 2019, failures to give adequate protection to the migrants, 30% of whom were in need of international protection, revealed a need for a new regional mechanism of immediate reaction ensuring the predictable disembarkation and subsequent processing of persons rescued at sea.

8. Three major migration routes are taken by asylum seekers in their attempts to reach Europe: the Western Mediterranean between Spain and Morocco; the Eastern Mediterranean, crossing the sea to reach the Greek Eastern Aegean islands; and the Central Mediterranean region – the stretch of the Mediterranean Sea between North Africa and Italy.

Migrants arrive in the Western Mediterranean mainly from Morocco, Guinea, Mali and Algeria; in the Eastern Mediterranean, Syrians form the majority, followed by Afghans and Iraqis; in the Central Mediterranean, asylum seekers arrive mainly from Tunisia, Libya and Eritrea. Illegal border crossings in 2019 (January - August) remain high, with 14 824 in the Western Mediterranean; 858 in the Central Mediterranean and 3 060 in the Eastern Mediterranean.

9. Overall, over the last six years 18 888 persons died on their route to safety in the Mediterranean region. The International Organization for Migration Missing Migrants project, which records the death toll of migrants all over the world, registered that as of 29 September 2019, 970 persons had lost their lives in the Mediterranean region (252 in the Western Mediterranean, 59 in the Eastern Mediterranean and 659 in the Central Mediterranean region). The proportion of deaths versus attempted crossings in the Mediterranean also remains extremely high, even though this is lower compared to 2016 at the climax of the refugee “crisis”: from 1.5% in 2018 (1 855 deaths for 118 398 attempted crossings), the rate has dropped to 0.9% so far in 2019 (970 deaths for 107 999 attempted crossings).

10. As regards deaths by region of origin, for about 722 the origin is unknown, the others were from North Africa (77), the Horn of Africa, (15), Sub-Saharan Africa (47) and presumed Sub-Saharan Africa (68), Middle East (11), and other Mediterranean areas (7).

11. As well as measures taken in different areas of action, the international community has reacted to the developments with statements, for instance on 25 July 2019, Filippo Grandi, UNHCR High Commissioner for refugees, deplored the deaths of 150 people in a boat crash in Libya, the most well-known incident since May 2017. He called for the resumption of sea rescues, an end to refugee and migrant detention in Libya and increased safe pathways out of the country. The Assembly has also reacted, most recently in a statement on 14 August 2019 by the Chairperson of the Committee on Migration, Refugees and Displaced Persons, which shared the UNHCR’s concerns about the adoption by the Italian Parliament of a law imposing significant restrictions on NGOs operating migrant rescue vessels, warning that the law would increase the number of victims. At the same time she urged the European community to show solidarity with Italy by participating in the resettlement of migrants.

3. Addressing the causes

12. As described in Resolution 2228 (2018) on the human rights impact of the “external dimension” of European Union asylum and migration policy: out of sight, out of rights?, the delegation of migration procedures to countries outside the European Union’s borders is intended to “ease the migratory pressure on member States at the European Union’s borders, thus facilitating migrants’ onward resettlement throughout Europe and a more regular influx; to reduce migrants’ need to undertake potentially fatal land and sea journeys; and to promote co-operation with Europe’s neighbours in migration management.“

13. In this context the European Union’s Triton and Sophia air and sea operations resulted in a reduction of nearly 32% of arrivals on Italian shores between November 2016 and November 2017, saving over 200 000 lives since 2014. European Union funding has also enabled the UNHCR and the IOM to assist refugees and migrants. However, shifting responsibility to third countries to reinforce European Union border controls implies serious risks to human rights; it increases the risk of migrants being “stranded” in transit countries through readmission procedures, as well as the increased use of punitive and restrictive measures such as refoulement, arbitrary detention and ill-treatment. It is also a way for many European Union member States to distance themselves from the politically divisive issue of assisting and integrating refugees.

14. Keeping migrants at a greater distance may also in fact provide a means of avoiding situations of refoulement within Europe. In the above-mentioned Resolution 2215 (2018), the Assembly called on Council of Europe member States to comply with their obligations under Article 3 of the European Convention on Human Rights, which requires them to refrain from sending migrants back to countries where they are exposed to the risk of torture and inhuman or degrading treatment or punishment, and not to co-operate on migration control with third countries if this is likely to result in violations of Article 3.

4. Search and Rescue: cooperation with NGOs in the Mediterranean

15. The forthcoming report on “Rights and obligations of NGOs assisting refugees and migrants in Europe” will focus particularly on NGOs rescuing migrants at sea.

16. Since the end of the Mare Nostrum operation of the Italian coast guard in 2014,

European Union member States have relied on Operation Sophia of EUNAVFOR MED

and Operation Triton by FRONTEX,

together with rescue operations by the Libyan coast guard

and the coast guards of Italy and Malta regarding the central Mediterranean Sea and by the Moroccan and Spanish coast guards regarding the western Mediterranean.

While the national coast guards of Greece and Turkey have not rescued a substantial number of boat migrants in distress in the eastern Mediterranean, some private vessels have been able to do so at times.

Despite those operations, deaths by drowning continue.

17. Rescue vessels operated by NGOs have an important life-saving function, so the prosecution and indeed persecution of the organisations concerned can only be regretted. Examples are numerous and for the most part now well-documented, including that of the SeaWatch3. On 26 January 2019, the European Court of Human Rights did not grant the request of the captain and 40 migrants to be disembarked through an order of emergency measures, but the Court asked the Italian Government to take all necessary measures to provide the applicants with adequate medical care, food, water and basic supplies (applications nos. 5504/19 and 5604/19).

18. The same reasoning was confirmed in the Court’s decision of 26 June 2019 in the case of Rackete and others v. Italy (application no. 32969/19).

However, the situation on board SeaWatch3 became so difficult that captain Rackete finally decided to enter the Sicilian port against the orders of the Italian border guards on 29 June 2019. She was charged with defying a warship and endangering the lives of four policemen under Italian criminal law, but has since been released from house arrest.

The case is still pending, but Ms Rackete gained wide international support.

19. The majority of prosecutions have primarily been based on allegations that NGOs had assisted human smugglers. The Protocol against the Smuggling of Migrants by Land, Sea and Air of 2000, supplementing the Convention against Transnational Organised Crime (hereinafter “Palermo Protocol”) addresses this matter. It has been signed by nearly all member States of the Council of Europe.

20. Article 3 of the Palermo Protocol requires for criminal liability that a person obtains directly or indirectly “a financial or other material benefit” from the smuggling of migrants. However, none of the cases referred to in the overview by the Fundamental Rights Agency of the European Union,

contained such affirmations by national prosecutors. National authorities should therefore respect this and exclude from criminal liability all rescue operations which obviously constitute a “humanitarian exemption” from human smuggling.

21. Under Article 5 of the Palermo Protocol, “migrants shall not become liable to criminal prosecution under this Protocol”. Therefore, anybody assisting solely migrants in distress at sea cannot be held liable. This is even more so, as vessels have the obligation to rescue other vessels and persons in distress under the international law of the sea. The report (doc. 14586) by Ms Petra De Sutter (Belgium, SOC) and Resolution 2229 (2018) on international obligations of Council of Europe member States to protect life at sea clearly stress this international obligation.

22. The competency and capacities of NGO ships to run search and rescue operations must be recognised and co-operation with them maintained.

23. The Libyan coast guard has also rescued large numbers of boat migrants.

Approximately 450 000 displaced persons returned to Libya since 2016 and 47 879 refugees were registered in Libya by the UNHCR in August 2019.

NGOs

and international organisations in the field have systematically raised concerns that Libya is not a safe country and therefore migrants should not be returned there.

The IOM organises training courses for the Libyan coast guard

and is continuing its voluntary return programme to home countries for foreign migrants in Libya.

Member States should continue to monitor the security situation in Libya.

5. Managing arrivals

5.1. The Council of Europe Human Rights Commissioner’s June 2019 Recommendation on “Bridging the protection gap for refugees and migrants in the Mediterranean”

24. In June 2019, the Commissioner for Human Rights published a comprehensive Recommendation entitled “Lives saved. Rights protected. Bridging the protection gap for refugees and migrants in the Mediterranean”. It highlights the fact that certain Council of Europe member States have progressively adopted more restrictive approaches to dealing with the attempted crossings of refugees and migrants via the Central Mediterranean route. The executive summary states that “Politicising an issue that is of a humanitarian nature, they have adopted laws, policies and practices which have often been contrary to their legal obligations to ensure effective search and rescue operations (SAR), the prompt and safe disembarkation and treatment of rescued people, and the prevention of torture, inhuman or degrading treatment. This recommendation therefore aims at identifying the deficiencies of this approach, and at helping member States to reframe their response according to human rights standards. This Recommendation therefore aims at identifying the deficiencies of this approach, and at helping member States to reframe their response according to human rights standards.”

25. The recommendation contains 35 principles focusing on five main areas of action: ensuring effective search and rescue co-ordination; guaranteeing the safe and timely disembarkation of rescued people; co-operating effectively with NGOs; preventing human rights violations while co-operating with third countries; and providing accessible safe and legal routes to Europe. They aim to help member States to step up responsibility sharing in the context of migration without violating human rights.

26. As well as providing guidelines for policies, including relations of national authorities with NGOs assisting migrants, the recommendation promotes participation in refugee resettlement programmes, possibilities for humanitarian visas, sponsorship schemes, etc., to provide safe and legal routes to settlement in Europe, including through effective family reunification procedures.

5.2. The joint UNHCR/IOM Regional Disembarkation Mechanism

27. In 2018, UNHCR and IOM called on countries in the Mediterranean region to agree on a predictable and responsible disembarkation mechanism, in a manner that prioritises human rights and safety first, delinked from the subsequent processing of status and related follow-up responsibilities, post-disembarkation, for those rescued in international waters.

28. Both organisations stressed that such a joint regional response should be based on a set of common objectives, including the maximalisation of joint efforts to reduce loss of life at sea; making sure that saving lives remains the international community’s priority; strengthening efforts to build the capacity of coast guards in Mediterranean countries (not just in Libya) to perform effective rescue operations in their respective SAR; making sure that National Maritime Rescue Co-ordination Centres (MRCC) are able to carry out their work effectively for the purposes of search and rescue operations; ensuring quick disembarkation of people rescued at sea in the Mediterranean in safe ports, in line with established rescue at sea arrangements and international maritime law, co-ordinated through the responsible MRCCs; establishing measures for co-operative arrangements to support States providing for disembarkation; safeguarding the right to seek asylum, and respecting the human rights of all individuals such as non-refoulement, including the right not to be disembarked in or transferred to a place where there is a risk of persecution, torture, or other serious harm; reinforcing the efforts to address human smuggling and trafficking, including measures to ensure protection for victims of trafficking and ensuring the effective prosecution of those involved in human trafficking or smuggling and also reinforcing the capacity for rescue at sea and coordinated by effective MRCCs that operate in accordance with international law.

29. The mechanism developed by UNHCR and IOM formulated a six-step proposal aimed to “ensure that people rescued at sea in international waters are quickly disembarked in a predictable manner in line with international maritime law, in conditions that uphold respect for their rights including non-refoulement, and avoid serious harm or other risks”; and that “responsible post-disembarkation processing, supported – as appropriate- by IOM and UNHCR, leads to rapid and effective differentiated solutions and reduces onward movement through an effective co-operative arrangement.”

30. This proposal seeks to facilitate the application of existing norms of international law and demands the solidarity between European Union member States in managing all the consequences of rescue, disembarkation and processing. The first disembarkation step provides that the determination of places of disembarkation presently in use and additional pre-identified disembarkation centres in European Union territory and potentially elsewhere should be based on a geographic distribution with due consideration for available capacities in such identified centres, and in a manner that ensures respect for human rights.

31. The second step concerning reception arrangements sets out how the rescued migrants should be transported to State-operated reception centres providing adequate, safe and dignified reception conditions. It also foresees immediate biometric registration of migrants and security screening. The third step provides processing and assessing of the international protection needs of migrants, including the option of voluntary return. The IOM and UNHCR will provide specialised support at this stage. The next three steps set out the process of finding solutions in a defined, reasonable, time frame for refugees, persons with specific needs and people in need of assistance to return to their countries of origin.

32. This proposal could provide a structure for the French-led agreement to be proposed at the Council of ministers of Justice and Home Affairs of 7-8 October 2019 in Luxembourg.

6. Conclusions

33. This report aims to provide a basis for the urgent debate to take place on 3 October 2019. Its ambition is not to provide a complete overview of all the aspects of the current situation of migrants trying to cross the Mediterranean, but to remind member States of their obligations under the international treaties to which they are Parties.

34. Some dimensions deserve further examination, such as the shift in migration routes already observed over land but also visible with respect to the maritime routes across the Mediterranean. As border controls and security measures become more restrictive, refugees and potential asylum-seekers take ever greater risks, spending longer on complex and dangerous voyages in extreme conditions to their desired destinations. Member States must continue to develop co-operation, and to pay greater attention both to their own need to receive and integrate migrants in a context of population decline throughout all over Europe, and to the moral obligation which is to save lives and assist persons in danger.

35. Laws, regulations, guidelines, best practices, initiatives and mechanisms for fulfilling the undisputable obligation to save lives at sea and to alleviate the hardship endured by those who leave their homes, not by free will but by absolute necessity. These provisions must be taken into account and applied to ensure greater respect for human rights and equality.