No More Elusion of Responsibility for Rescue Operations at Sea: the Human Rights Committee’s Views on the Case A.S., D.I., O.I. and G.D. v. Italy and Malta

Gabriella Citroni, Researcher in International Law and Adjunct Professor of International Human Rights Law at the University of Milano-Bicocca [gabriella.citroni@unimib.it]

Photo credit: Al Jazeera

Key words: Human Rights Committee, jurisdiction, right to life, search and rescue, migrants, high seas

In a recent report, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions associated the Mediterranean Sea to an immense mass grave, noting that «over the past decade, the Mediterranean Sea is said to have claimed the lives of 20,000 migrants, killed by a deadly combination of human traffickers’ violence and greed, and States’ failure to protect (para. 9)».

After an initial stage where States – including Italy – responded by systematically engaging in search and rescue operations that saved thousands of lives, this policy was later abandoned, shifting the focus from preventing casualties to security and border control. In this new phase, States – including Italy – and certain international organisations and economic and political unions of States, voluntarily neglected their obligation to protect and embarked in the attempt to avail themselves of «legal black holes» (Mann) to avoid being held responsible for the deaths and disappearances of thousands of people who were left drowning at sea.

One of the main «tricks» resorted to allege the lack of jurisdiction or control over an area or a person on the high seas. However, as the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions pointed out in a report on the unlawful death of refugees and migrants, the existence of the mentioned legal challenges

«[…] the high seas impose another duty, the duty to provide an ‘adequate and effective’ search and rescue service, as found in three Maritime Conventions. Rescue must be provided ‘regardless of the nationality or status’ of the person in distress or the ‘circumstances in which that person is found’. The intent of these treaties is to create a system to rescue all vessels in distress (para. 61)».

Along the same lines, in its General Comment No. 36 on the right to life, the Human Rights Committee (HRC) held that

«in light of article 2 (1) of the Covenant, a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner. […] States parties are also required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag, and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea. […] (para. 63, emphasis added)».

The HRC applied these criteria – not without significant disagreements on their interpretation among its members – in the Views rendered on the case A.S., D.I., O.I. and G.G. respectively on 13 March 2020 (decision against Malta) and on 4 November 2020 (decision against Italy).

The decisions rendered by the HRC are receiving increasing attention by scholars (among others, Madjidian, Milanovic) and in the press (among others, this article on The Guardian, this article on Al Jazeera, this article on Repubblica) and are bound to set a relevant precedent for the numerous claims concerning similar situations currently pending either before the HRC (among others, a communication brought against Malta, Italy and Libya, or another communication lodged against Italy) or other international human rights mechanisms or courts, including the European Court of Human Rights (among others, the complaint lodged on the case S.S. v. Italy).

The initial complaint was lodged on 19 May 2017 by three Syrian nationals and a Palestinian, on their own behalf and on behalf of 13 of their relatives who, on 11 October 2013, were on board a vessel that sank in the Mediterranean Sea, 113 Km south of Lampedusa, and 218 Km from Malta, causing the death of more than 200 people. The authors claimed that the authorities of both States failed to take appropriate measures to render assistance to their relatives, who were in distress at sea, in violation of their relatives right to life pursuant to art. 6 of the International Covenant on Civil and Political Rights (ICCPR). They also claimed that the States’ failure to carry out an effective investigation into the events amounted to a violation of art. 6, read in conjunction with art. 2(3), of the ICCPR and that they were victims of a violation of art. 7 (prohibition inhuman treatment), read in conjunction with art. 2(3) of the ICCPR, because of the anguish caused by authorities’ failure to investigate the death or disappearance of their relatives. The communication was lodged jointly against Italy and Malta, but the HRC decided to split it.

The vessel had left Libya on 10 October 2013, carrying over 400 people. A few hours after setting off, it was shot at by a boat and water commenced entering the vessel. These events occurred in international waters, in a place within Malta’s search and rescue zone.

One of the persons on board called the Italian number for emergencies at sea around 11 a.m., explaining that the vessel was sinking and forwarding the coordinates. In the following hour, several other distress calls were made and at one point the Maritime Rescue Coordination Centre (MRCC) in Rome told the person calling that they would be rescued. However, after 1 p.m., the operator informed that the vessel was in the Maltese search and rescue zone and that Italian authorities had forwarded the distress call to the Maltese authority and passed on the phone number of Malta’s Rescue Coordination Centre (RCC).

In the following hours, the persons on board made numerous phone calls to the RCC. A Maltese patrol boat arrived at the scene at 5:50 p.m., when the vessel had already capsized. Although an Italian navy ship (ITS Libra) had been in the vicinity of the vessel all the time, it intervened only after 6 p.m., upon Malta’s urgent request.

While Italian and Maltese rescue centres were stalling, trying to pass the responsibility for the rescue operation to one another instead of intervening promptly, more than 200 people, including 60 children, drowned. Notably, even before the HRC, Malta and Italy continued playing the blame game, and their respective defences revolved around the alleged lack of jurisdiction.

The HRC rejected these arguments and found that the people on the vessel were concurrently within the jurisdiction of both Malta and Italy. With regard to Malta, the HRC held that:

«[…] The Committee notes that in the present case it is undisputed that the vessel in distress was located in the SAR [Search and Rescue] area for which the State party authorities undertook responsibility to provide for overall co-ordination of search and rescue operations, in accordance with section 2.1.9 of the SAR Convention and Regulation 33 of the SOLAS Convention. It further notes that it is undisputed that the State party authorities formally accepted to assume the coordination of the rescue efforts at 2.35 p.m. on the day of the shipwreck. The Committee therefore considers that the State party exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the State parties’ acts and omissions and the outcome of the operation (para. 6.7)».

With regard to Italy, the HRC found that:

«[…] in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy. This relationship comprised of factual elements – in particular, the initial contact made by the vessel in distress with the MRCC, the close proximity of ITS Libra to the vessel in distress and the ongoing involvement of the MRCC in the rescue operation and – as well as relevant legal obligations incurred by Italy under the international law of the sea, including a duty to respond in a reasonable manner to calls of distress pursuant to SOLAS Regulations and a duty to appropriately cooperate with other states undertaking rescue operations pursuant to the International Convention on Maritime Search and Rescue. As a result, the Committee considers that the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant legal obligations of Italy, and that they were thus subject to Italy’s jurisdiction for the purposes of the Covenant, notwithstanding the fact that they were within the Maltese search and rescue region and thus also subject concurrently to the jurisdiction of Malta. The conduct of criminal investigations in Italy regarding the conduct of various naval officers involved in the incident further underscores the potential legal responsibility (albeit under domestic law)of Italian officials vis-à-vis the victims of the incident (para. 7.8, emphasis added)».

The members of the Committee were all but in agreement about these findings. Some argued that the people on the vessel were neither under the jurisdiction of Malta or Italy (dissenting opinions of Andreas Zimmerman). Others argued that they were subject only to Malta’s jurisdiction (dissenting opinions of Yuval Shany, Christof Heynes, Photini Pazartzis and of David Moore). Other members agreed that both States exercised jurisdiction and therefore they would have analysed more in-depth the aspect of “shared responsibility (opinions of Hélène Tigroudja, respectively dissenting in the decision against Malta and concurring in the decision against Italy; and concurring opinion of Gentian Zyberi in the decision against Italy).

The complaint against Malta was eventually declared inadmissible because of the applicants’ failure to exhaust domestic remedies. Three members of the HRC (Gentian Zyberi, Arif Bulan and Duncan Muhmuza) dissented, pointing out that, bearing in mind the circumstances, Maltese authorities should have launched an investigation ex officio, even in the absence of a formal complaint lodged by the applicants, who could not be reasonably expected – nor requested to – resort to domestic remedies.

In this regard, as aptly observed by both the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (report, paras. 70-73) and the Working Group on Enforced or Involuntary Disappearances (report, paras. 72-76 and 78), relatives of disappeared or dead migrants face unique challenges in accessing domestic remedies, including language barriers, difficulties in obtaining adequate assistance to navigate foreign jurisdictions, the fact that they do not hold citizenship of the country concerned, lack of familiarity with the legal system, and being confronted with discriminatory attitudes. Arguably, these aspects should be duly taken into account when interpreting the requirement to previously exhaust domestic remedies in any case involving relatives of disappeared or dead migrants.

With regard to Italy, a complaint was indeed submitted to the Public Prosecutor of the Court of Syracuse and an investigation was opened (albeit it did not bring any meaningful result). The State did not object the existence of other available remedies and therefore the requirement of previous exhaustion of domestic remedies was considered satisfied. In the decision against Italy, the HRC declared that the State failed to meet its due diligence obligations under art. 6(1) of the ICCPR and equally did not discharge its duty to conduct a prompt investigation of the allegations relating to a violation of the right to life, therefore violating art. 6(1) read in conjunction with art. 2(3) of the ICCPR.

With regard to the alleged violation of art. 7, read in conjunction with art. 2(3) of the ICCPR due to the anguish endured by the applicants due to failure to investigate the death or disappearance of their loved ones, the HRC decided not to examine it separately, having already found other breaches of Italy’s obligations. This seems to disregard the extreme suffering experienced by relatives of disappeared or dead migrants, who are left to bear the brunt of the efforts to uncover any facts, met by the official and callous indifference of the authorities (in this sense, see the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, report, paras. 70-78).

The HRC requested Italy to «make full reparation to individuals whose Covenant’s rights have been violated, bearing in mind the potential responsibility of other States for the same incident. […] the State party is obligated, inter alia, to proceed with an independent and effective investigation in a prompt manner and, if found necessary, to prosecute and try those who are responsible for the death and disappearance of the authors’ relatives (para. 10, emphasis added)». Arguably, the individuals should have been granted the right to obtain full reparation from any of the States responsible for the violations (joint and several liability).

All in all, the decisions of the HRC can be regarded as a landmark and will certainly influence the international jurisprudence to come. However, certain issues remain to be settled: notably, the extent and consequences of a ‘shared responsibility’ between States, indirectly acknowledged by the HRC in finding the existence of a concurrent jurisdiction of Malta and Italy and when determining the measures of reparation; and whether the findings concerning the existence of Italy’s jurisdiction are to be considered exceptional (as the use of the phrase “in the particular circumstances of the case” in para. 7.8 of the decision against Italy may suggest) or rather set a solid precedent. Moreover, other matters call for further analysis, informed by a better understanding of the formidable obstacles faced by relatives of disappeared or dead migrants in seeking justice and redress and the corresponding obligations of the States.

Nevertheless, for the time being, the HRC decisions pass down a clear message: when dealing with people in distress at sea (any part of the seas), lulls will not be tolerated and States shall take their responsibilities for rescue operations seriously, instead of trying to pass them one another. Pontius Pilatus has no role to play.