GLAN has filed complaint against Italy with the UN Human Rights Committee on behalf of an individual whose journey from Libya was intercepted in the high seas by the Panamanian merchant vessel, the Nivin. The complaint is the first submitted to an international human rights forum aimed to the phenomenon of “privatized push-backs”, whereby EU coastal States engage commercial ships to return refugees and other persons in need of protection back to unsafe locations in contravention of their human rights obligations.
The cooperation and collaboration between Italy and Libya on migration and border control has a long history. In the framework of the 2008 Treaty of Friendship, Partnership and Cooperation, Italy carried out several naval operations intercepting irregular migrants and returning them to Libya. In 2012, after the European Court of Human Rights delivered its judgment in the Hirsi Jamaa and Others v Italy, this direct modality of migration control was suspended. Thereinafter, the Italian government adopted strategies that increasingly involved ‘contactless’ measures, yet exercising strategic control over the Libyan Coast Guard, which has operated as its proxy to intercept migrants and bring them back to a country in which they would be subjected to extreme forms of violence and exploitation.
The adoption of a ‘closed port policy’ and the progressive criminalisation of rescue NGOs, coupled with the retreat of the European Union’s search and rescue missions at sea, left a gap in the Mediterranean. In that vacuum, only two actors remained present: the Libyan Coast Guard and merchant ships. Merchant ships became therefore unwillingly mobilised towards a modality of strategic delegation of border control, rather than one of rescue, in the attempt by the Italian government to avoid accountability for human rights violations.
In the afternoon of November 7, 2018, the Italian Maritime Rescue Coordination Centre (MRCC) instructed the Nivin to rescue a distressed migrant boat and to liaise with the infamous Libyan Coast Guard (LYCG). The LYCG then directed the Nivin towards Libya, where the captured passengers staged a stand-off, resisting their illegal debarkation. Libyan security forces violently removed from the vessel after 10 days using tear gas and rubber as well as live bullets. The claimant was shot in the leg and was arbitrarily detained, interrogated, beaten, subjected to forced labour and denied treatment for months.
The legal submission made use of evidence in a report compiled by Forensic Oceanography, part of the Forensic Architecture agency based at Goldsmiths, University of London with Charles Heller as lead investigator. The report, published today, combined the analysis of multiple sources of evidence to offer a detailed reconstruction of the incident. It demonstrates that privatized push-backs have risen sharply since June 2018. The result is that seafarers are being used by states seeking to circumvent their obligations towards refugees.
The complaint sets out an argument that Italy and other states are breaching their obligations under international law by using private merchant vessels as an instrument of refoulement – the returning of refugees to where they will suffer persecution and torture. By relinquishing its responsibility to offer a port of safety, Italy violated its human rights obligations, including under the International Covenant on Civil and Political Rights, and the Convention Against Torture.
The case breaks new ground as it calls attention to the ways in which merchant vessels are being implicated in border violence. Seafarers are increasingly being compelled to take responsibility for migrants and make risky choices of their own – choices that may lead them to act illegally and result in deaths not to mention bearing the costs of imposing border control. The Nivin incident represents a further development of the externalisation of border control and a new modality of delegated containment of migrants. This policy threatens to annul fundamental rules of public international law, such as the jus cogens norm of non-refoulement; as well as the principle of disembarkation in a place of safety, recognised under customary norms of the law of the sea.
In May 2018, Forensic Oceanography published its Mare Clausum report, which demonstrates that Italy and the EU have implemented since 2016 a two-pronged strategy aimed at stemming migration across the central Mediterranean. The strategy aimed to oust rescue NGOs from the Mediterranean, on the one hand, and outsource border control to the Libyan Coast Guard on the other by providing material, technical, and political support. The role of the EU and Italy in creation and maintenance of the Libyan Coast Guard is decisive as demonstrated in the SS v Italy case that GLAN filed in May 2018 in partnership with Forensic Oceanography.
This strategy has been accompanied by the progressive retreat from the Mediterranean of the EU, which narrowed the geographical scope of its missions and increasingly deployed assets that are not equipped to perform search and rescue activities. In this scenario, the only actor left at sea alongside the Libyan Coast Guard is merchant vessels. Due to the inability or unwillingness of the Libyan Coast Guard to perform duties related to search and rescue, merchant ships were called upon to contribute to filling this gap.
Between June 2018 and June 2019, a total of 13 privatized push-back attempts were recorded, a list that is most probably incomplete, as indicated by Forensic Oceanography. Much of this is related to the implementation of the Mare Clausum strategy, exacerbated by the so-called “closed ports” policy in Italy, which prevented ships that carried out rescue operations to enter Italian territorial waters to disembark rescuees.