Screengrab from Forensic Oceanography's reconstruction of fatal maritime incident
Seventeen survivors of a fatal incident in which a boat carrying migrants found itself in distress off the coast of Libya filed an application against Italy today with the European Court of Human Rights. The applicants included the surviving parents of two children who died in the incident.
The application was filed by the Global Legal Action Network (GLAN) and the Association for Juridical Studies on Immigration (ASGI), with support from the Italian non-profit ARCI and Yale Law School’s Lowenstein International Human Rights Clinic. Their submission made use of evidence compiled by Forensic Oceanography, part of the Forensic Architecture agency based at Goldsmiths, University of London, who have produced a detailed reconstruction of the incident and the policies that have contributed to it.
On 6 November 2017, the Libyan Coast Guard interfered with the efforts of the NGO vessel Sea-Watch 3 to rescue 130 migrants from a sinking dinghy. At least twenty of them died. The Libyan vessel was donated by Italy a few months before. The intervention was partly coordinated from Rome by the Maritime Rescue and Coordination Centre (MRCC), an Italian Government agency. An Italian navy ship was nearby, part of the Mare Sicuro operation which has operated in Libyan territorial waters facilitating interceptions by the Coast Guard.
The Libyan Coast Guard ‘pulled back’ the survivors to Libya, where they endured detention in inhumane conditions, beatings, extortion, starvation, and rape. Two of the survivors were subsequently ‘sold’ and tortured with electrocution.
The court application exposes how the intervention of the coast guard follows the terms of a February 2017 formal agreement between Italy and the Libyan Government of National Accord. As a consequence of this and several other agreements, Italy has been enabling and coordinating the Libyan response at sea. The application asserts that the agreement establishes Italy’s legal responsibility for the actions of Italian and Libyan vessels in this case.
The consequences of the agreement for migrants attempting to leave Libya have been catastrophic. Deaths by drowning, as well as violence and ill-treatment on board the Libyan Coast Guard vessel have been captured on camera by the crew of Sea-Watch 3.
According to GLAN legal advisor Dr Violeta Moreno-Lax (of Queen Mary, University of London), “The Italian authorities are outsourcing to Libya what they are prohibited from doing themselves, flouting their human rights obligations. They are putting lives at risk and exposing migrants to extreme forms of ill-treatment by proxy, supporting and directing the action of the so-called Libyan Coast Guard”. GLAN legal advisor Dr Itamar Mann (of the University of Haifa) added: “We hope this new case will serve to establish the key principle that so-called ‘pull-backs’ are contrary to basic human rights standards. The Libyan Coast Guard and Libyan militia forces cannot become Italy’s vehicle for migrant abuses in the Central Mediterranean.”
Charles Heller, co-founder of the Forensic Oceanography project, said: “We have analysed sixteen different episodes in which Italy, with the support of the EU, has coordinated and directed the Libyan Coast Guard to intercept and return migrants to Libya, despite the well-documented human rights violations they can expect to face there. The evidence we have gathered demonstrates the shocking extent to which Europe has been outsourcing its human rights violations.”
Lorenzo Pezzani, co-founder of the Forensic Oceanography project, added: “Audio-visual recordings by NGOs at sea have allowed us to reconstruct incidents such as that described in this application with unprecedented precision. What emerges is a harrowing story that brings the dramatic effects of Italy and the EU’s policy of ‘pull-back by proxy’ into sharp relief”.
Professor James Silk, director of Yale Law School’s Lowenstein Clinic, said: “In the early 1990s, the Lowenstein Human Rights Clinic challenged the U.S. government’s interception and return of Haitian refugees on the high seas. We have continued to expose and oppose the gross injustices of stopping migrants at sea and returning them without due process to places where they will suffer violence and ill-treatment.” Talya Lockman-Fine, a student on the Clinic team, added: “International law must not be misinterpreted to permit countries to subcontract their human rights violations and avoid all accountability.”
Sara Prestianni, spokesperson for the Italian non-profit ACRI, said: "This application is essential for demonstrating the political and legal responsibility of the Italian Government for ongoing systematic violations of human rights law, both at sea and in the hellish conditions to which migrants are returned in Libya”.
In 2012, the Grand Chamber of the European Court of Human Rights found that Italy's ‘push back’ campaign—orchestrated through multiple accords, including the 2008 Berlusconi-Gaddafi Treaty of Friendship—breached international law, specifically the prohibition of torture and inhuman or degrading treatment and protections against collective expulsion. These accords have been reactivated through a 2017 agreement between Italy and Libya, which has led to Italy training, equipping, and financing the Libyan Coast Guard and providing technical, strategic and political support.
Illegal methods of border enforcement have proliferated along the borders between rich and poor countries, with well-established consequences for the rights of migrants, including their right to life and the prohibition of torture. ‘Pull-backs’ are one feature of a growing practice, including the widely criticized EU-Turkey deal, which impinges on migrant rights, while relying on techniques of avoidance of legal responsibility. The increasing number of deaths of migrants in the Mediterranean in recent years is a direct result of state practices that neglect international law.