September 21, 2009

IX. Failure to Rescue Boats in Distress at Sea

Interdiction in the Mediterranean is often characterized as “rescue at sea.” In many cases, it is, indeed rescue, and many thousands of lives have been saved by the Italian and Maltese navies and coast guards, as well as by private ship captains. But vessels that are not in distress are also interdicted, and at other times vessels in distress are ignored or pushed away, according to migrants’ accounts.

The failure to rescue is confirmed by the pronouncements of Italian officials. In April 2009, Italian Interior Minister Roberto Maroni accused Malta of effectively sending 40,000 migrants to Italy by failing to participate in their rescue.[97] Indeed, migrants told Human Rights Watch that Maltese naval boats stopped drifting boats, gave them food and fuel, and then pointed them in the direction of Italy and disappeared. Abdi Hassan, a 23-year-old Somali, who speaks several languages, including English, described the lengths the Maltese navy went to avoid taking him and other passengers, and how they instead re-provisioned their boat and pushed them towards Italy:

By the second day of our journey we had no food or water. By the third day we had no fuel and by the fourth we were just drifting. We thought we would die. A fishing boat found us and radioed to the Maltese navy to tow us. On the fifth day, the Maltese marine ship came, but they told us that they couldn’t take us. They only took two pregnant women aboard their ship and me to translate. They gave the rest of the people on our boat food and fuel and told them to go to Sicily. Then, they told me that they couldn’t take me, just the two pregnant women, and they put me on a fast, small boat and took me to back to my boat to rejoin it. We then continued traveling to Sicily.[98]

Eventually, their boat fell into distress again, and ultimately the Maltese navy did rescue them and take them to Malta. Abdi Hassan said that he was treated well by the Maltese navy, even though the detention place where he was taken, Hermes Block of Lyster Barracks was old, dirty, and so overcrowded that he had to sleep on the floor. (It had just closed shortly before the Human Rights Watch visit). He said, “After being in Libyan prisons, this place seemed like paradise, but at the same time I had the feeling that I was missing rights that I should have had in Europe.”[99]

Sometimes ships fail to respond quickly or at all to boat migrants in severely disabled boats whose lives appear to be in danger. Abassi, a 21-year-old Nigerian, was on an inflatable “zodiac” boat in August 2008 when he heard a popping sound:

It sounded like a gunshot, but it was not a gun. We had a problem. It was leaking. We were still in Libyan territorial waters, and everyone was crying because we knew we wouldn’t be rescued in Libyan waters. We thought we would die. We thought we would only get rescued in international waters.
We drifted, disabled for five days, and we thought we finally did get to international waters. We prayed and tried to stay calm. One side of the boat had sunk and the other was still floating. There were 85 of us clinging to it. There was nothing to eat and by the second day we had no water. People were drinking sea water and got sick. Three people died.
On the fourth day we saw a helicopter. The helicopter saw us and waved. The helicopter did not drop food or water, and no boat came to rescue us. Five hours later we saw a ship. It did not come to help. It stopped and spent a few hours standing there. The boat just watched.
The people on our boat started arguing and fighting. Finally around midnight we saw the light of another ship. It dropped a line and tried to drag us, but our boat was finished. They brought us onto that boat. It brought us directly to Malta. They fingerprinted us and checked us at the hospital just to check us, not for treatment. Then they brought us to the Safi detention center. We were surprised to be locked up in Europe.[100]

Clearly, ship captains—sometimes representing navies—are engaged in making judgment calls about the severity of distress, often taking a minimalist intervention to prevent loss of life, but to avoid taking responsibility for migrants by actually rescuing them.  Apart from the duty on states to ensure ships flying their flag rescue, the International Convention for the Safety of Life at Sea specifically provides that “the master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance.”[101]  

When boats are rescued, the migrants report that the rescuers often jockey with each other to see which can foist the responsibility upon another party. Jonas, 39-year-old Eritrean, was on a boat with about 300 passengers that had spent four days without food or water when their rescuers appeared on April 18, 2009:

A Maltese police boat stopped, but it did not give us food or water. When we met the Maltese boat, they told us they would help, but they left when they saw an Italian ship approach. The Italian ship gave us water and treated us kindly.[102]

These testimonies add voice to a ghastly record of shame, underreported because the stories happen in the vast reaches of the high seas and because the drowned can no longer speak.  Such voices arose from the dead on May 21, 2007 when a boat halfway between Libya and Malta filled with 53 Eritreans began to sink.  Passengers with satellite phones desperately called relatives in Italy, Malta, and as far away as London begging for rescue.  A Maltese military helicopter photographed the sinking boat that morning, but it took another nine hours before a naval vessel arrived, by which time the boat and all of its passengers had vanished into the sea.[103] 

Later that same month, a foundering migrant boat drifted for six days, as several boats passed it by before it sank.  A Maltese tuna fishing boat came across the shipwrecked survivors, but would not take them aboard. Instead, 27 shipwrecked African men were left to cling to the boat’s tuna net for three days and nights while Libya, Malta, and Italy argued over who would be responsible for taking them.  An Italian naval vessel finally took them.[104]

Disputes over responsibility causing delayed rescues and added distress and danger are illustrated by the high profile dispute between Malta and Italy regarding responsibility for 140 migrants aboard the Turkish freighter Pinar E in April 2009. The passengers included at least one pregnant woman, children, and about 22 people who were too ill to be brought with the rest of the passengers to Sicily, but remained in Lampedusa. The captain of the Pinar E picked up the migrants in response to a distress call. Italy argued that as the migrants were intercepted in the search and rescue (SAR) zone administered by Malta they should be disembarked on Maltese territory and refused the ship permission to enter Italian waters. Malta maintained that international law required the migrants to be disembarked at the nearest safe port, which in this case was Lampedusa, Italy. After a four-day standoff and appeals by the President of the European Commission, Italy agreed to accept the migrants.

Innocent painted this picture depicting his rescue on a piece of torn sheet.  To the right of the E Pinar, he has written: “God Bless the Turkey People”. © 2009 Human Rights Watch/Bill Frelick

Innocent, a 19-year-old Nigerian youth who was rescued by the Pinar E, whose painting of his experience appears here, told Human Rights Watch how his disabled, overcrowded rubber Zodiac boat was first ignored by passing ships and then how the sick passengers had to wait while Italy and Malta argued over where they would be disembarked:[105]

We only brought water, no food, no life jackets. We got lost and the water and fuel were finished. We were calling for people to rescue us. We waved our shirts to passing ships. Some passed us. Others gave us food and water, but did not rescue us.  We had no fuel and the waves were carrying us. People were crying. We prayed to God to save us. We saw a dolphin hit the boat and it caused a leak inside our boat. We were bailing water out of the boat. No one died, but we were sick and people were fainting. After four days a big Turkish ship came and threw a rope to us. We climbed into the big boat. They gave us water to drink. They gave us food, even though it wasn’t enough. We spent three more days on the Turkish boat [sic—it was actually four].[106]

While Innocent expressed heartfelt appreciation to Italy, the Italians nevertheless prolonged his suffering by four days while they argued with the Maltese to avoid taking him.

These disputes between Malta and Italy reveal a major weakness in the international maritime legal regime. The practical ramifications of the dispute are that commercial ships rescuing distressed migrants in the Malta-controlled SAR off Lampedusa are given conflicting instructions about where to disembark the survivors. The 2004 International Convention on Maritime Search and Rescue (SAR) and the International Convention for the Safety of Live at Sea (SOLAS) amendments appear to support Italy’s position, stating that the responsibility to provide a place of safety falls on the state responsible for the SAR region in which the survivors were recovered.[107] The International Maritime Organization has also issued a draft circular on the issue, explaining: if “disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued into a place of safety under its control.”[108]

However, Malta has formally objected to the 2004 SAR and SOLAS amendments, as well as the IMO’s draft circular, and is therefore not bound by them.[109] Malta continues to argue that disembarkation should occur at the nearest safe port to the site of the rescue, which, in the Malta-controlled SAR, is often a port in Italy. Legally, both states are in the right, because Malta has not consented to be bound to the 2004 SAR and SOLAS amendments that bind Italy. More legal reforms are needed to achieve a uniform legal standard for disembarkation of survivors.

 

[97]“Maroni Claims Malta Sent 40,000 Migrants to Italy,” Times of Malta, April 21, 2009, http://www.timesofmalta.com/articles/views/20090421/local/moroni-claims-malta-sent-40,000-migrants-to-italy (accessed April 21, 2009).

[98]Human Rights Watch interview (name changed, B/H 32), Malta, May 4, 2009.

[99] Human Rights Watch interview (name changed, B/H32), Malta, May 4, 2009.

[100] Human Rights Watch interview (name changed, B4), Ta’Kandja Old detention center, Malta, May 2, 2009.

[101] International Convention for the Safety of Life at Sea (SOLAS), November 1, 1974, entered into force on May 25, 1980, 1184 United Nations Treaties Series 3.  Regulation V/33.1.

[102]Human Rights Watch interview (name changed, B39), Caltanissetta, Sicily, May 8, 2009.

[103] “Doomed to Drown: The desperate last calls of the migrants no one wanted to rescue,” The Independent, May 27, 2007, http://www.independent.co.uk/news/world/europe/doomed-to-drown-the-desperate-last-calls-of-the-migrants-no-one-wanted-to-rescue-450300.html (accessed July 24, 2009).

[104] “Europe’s Shame,” The Independent, May 28, 2007, http://www.independent.co.uk/news/world/europe/europes-shame-450754.html (accessed July 24, 2009).

[105]Frances D’Emilio, “Italy will let Stranded Migrants Land,” guardian.co.uk, April 19, 2009, http://www.guardian.co.uk/world/feedarticle/8463000 (accessed July 14, 2009).

[106] Human Rights Watch interview (name changed, B58), Lampedusa, May 14, 2009.

[107] International Maritime Organization (IMO), Maritime Safety Committee, 78th Session, Consideration and Adoption of Amendments to Mandatory Instruments, Amendments to the 1974 SOLAS Convention, October 10, 2003.

[108] IMO, Facilitation Committee, 35th Session, Formalities Connected with the Arrival, Stay and Departure of Persons, January 14, 2009.

[109]IMO, Report of the Facilitation Committee on its 35th Session, January 16, 2009.