Lawyers pin blame for deaths of 20 migrants at sea on Italy

Survivors of a shipwreck off the coast of Libya have filed a case against the Italian government at the European Court of Human Rights alleging it is responsible for the drowning of 20 asylum seekers.

Human rights and legal aid groups working on the case, presented at a press conference in the Italian capital Rome on Tuesday, allege the Libyan coastguard prevented a ship belonging to non-governmental organisation Sea Watch from completing the rescue of 130 refugees on board a rubber dinghy, putting lives at risk.

Lawyers hope the case will establish Italy’s legal responsibility for the incident, and set a precedent to challenge the policy of “pullback by proxy” in the Mediterranean Sea.

The policy is the result of various agreements between the Italian government and Libya, already deemed illegal under international law.

The 17 survivors – all of whom are Nigerian nationals – include the parents of two children who died in the incident on November 6, 2017.

Fifteen of them are currently in Italy, while two others are now in Nigeria after opting for a “voluntary” repatriation programme from Libya. They are supported by lawyers from the Global Legal Action Network (GLAN), the Association for Juridical Studies on Immigration (ASGI), the Italian non-profit ARCI, and Yale Law School’s Lowenstein International Human Rights Clinic.

Refugee arrivals in Italy

While policymakers consider Italy’s deal with Libya a success for stemming arrivals to the country – which decreased from 181,436 in 2016 to 119,130 in 2017 – data shows the mortality rate has simultaneously increased.

According to the UN’s refugee agency UNHCR, one in 14 people attempting the crossing from Libya to Italy has died this year, compared with one in 29 in 2017.

The deal said Italy would provide financial and technical support to the Libyan coastguard, as well as fund detention centres, train Libyan personnel, and support return and readmission programmes to countries of origin for intercepted migrants.

As a result, an estimated 20,000 people have been “pulled back” to Libya in 2017, where they face human rights abuses including detention, extortion and forced labour. 

“Italy is using the Libyan coastguard to do indirectly what they can’t do directly,” Violeta Moreno-Lax, GLAN’s legal adviser and a senior lecturer at Queen Mary, University of London, said on Tuesday.

Libyan coastguard response

Videos of the incident, partly coordinated by the Italian Maritime Rescue and Coordination Centre (MRCC) in Rome, show the Libyan vessel – which had been donated by Italy a few months before – pulling the dinghy in a way that could potentially endanger the passengers’ lives, while many had already fallen overboard.

The Libyans are later shown beating the migrants and refugees they had taken on board, which is said to have caused panic among those still at sea, leading to the death of five people as they tried to swim towards Sea Watch’s vessel.

The Libyan coastguard took 47 of the survivors back to Libya, and two of them were later found to have been sold and tortured.

At the time, the Libyan coastguard blamed the deaths on the NGO. A spokesperson for the coastguard could not immediately be reached by Al Jazeera on Tuesday for comment.

The Forensic Oceanography project at Goldsmiths, University of London, reconstructed the incident using video and audio material, and documented 16 other cases which, the group argued, show a direct correlation between the increasing rate of interception by the Libyan coastguard and the rise in the mortality rate in the Mediterranean.

“The Sea Watch vs Libyan coastguard case is paradigmatic of what we call the Mare Clausum [closed sea] operation,” Charles Heller, cofounder of Forensic Oceanography, said.

“An undeclared operation launched by Italy with the support of the EU to seal off the Mediterranean. This operation has involved, on the one hand, the criminalisation and sidelining of rescue NGOs, and on the other hand the outsourcing of border control to Libyan actors, in particular, the Libyan coastguard, so that they intercept and pull back migrants on Italy’s and the EU’s behalf.”

According to Heller, eight of the 13 crew members that operated onboard the Ras Jadir – the Libyan boat which performed the rescue – had been trained by the EU’s anti-smuggling operation, EUNAVFOR Med.

“As a result of these policy agreements and multiple forms of support and coordination Italy and the EU have essentially re-established the Libyan coastguard, which was operationally inexistent until the end of 2015,” said Heller.

He added while in 2016 the Libyan coastguard intercepted less than 10 percent of the boats leaving for Italy, that number rose to 17 percent in 2017, with a peak of 39 percent between August and September – more than any other actor at sea.

NGO operations in decline

Simultaneously, the number of NGOs operating in the Mediterranean has dropped from 10 in 2016 to just three today. Many organisations refused to sign Italy’s “code of conduct” that included, among other conditions, allowing judicial officers and police on board.

NGOs have also faced legal challenges. Last March, the Spanish NGO ship Open Arms was impounded and two of its crew members were charged with aiding and abetting illegal migration for refusing to hand a group of rescued migrants over to the Libyan coastguard.

The boat was later freed but the confiscation of another boat, the Iuventa, was confirmed by Italy’s Supreme Court at the end of April.

According to ASGI, Italy has used $2.9m of its Africa Fund for cooperation for the maintenance of Libyan boats and personnel training. Italy secured another $187m for Libya at the Valletta summit on migration in 2015, $54m of which has gone towards border management, according to Moreno-Lax.

Meanwhile, recent negotiations to reform the Dublin regulation have arrived at a standstill. Responsibility for what happens in the Mediterranean, Moreno-Lax said, rests ultimately on Europe’s shoulders.

“Dublin condemns states at Europe’s southern border to face the crisis alone,” Moreno-Lax said.